Opinion
CV-23-00267-PHX-SPL (JZB)
10-18-2023
Gator Robles, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT & RECOMMENDATION
Honorable John Z. Boyle, United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Petitioner Gator Robles has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
In 2018, during a combined plea proceeding, Petitioner pleaded guilty to felonies in two separate cases. In his 2017 case, Petitioner pleaded guilty to Possession of a Dangerous Drug. In his 2018 case, Petitioner pleaded guilty to Possession of a Dangerous Drug. Because the court accepted the plea in the 2017 case before conducting the colloquy in the 2018 case, the court found that the 2017 offense was a historical prior felony conviction, which enhanced Petitioner's potential sentence in the 2018 case. Petitioner was sentenced to concurrent sentences of five years of imprisonment in the 2017 case and nine years of imprisonment in the 2018 case. The Arizona Court of Appeals affirmed the sentences. Petitioner now alleges counsel provided ineffective assistance during his change of plea and sentencing. But Petitioner did not raise a claim of ineffective assistance of counsel in the Arizona Court of Appeals, so his claims are procedurally defaulted. Petitioner's claims are also not substantial because counsel and the court advised Petitioner that he faced enhanced sentencing based on the 2017 plea. The Court recommends the Petition be denied.
II. Background.
The Arizona Court of Appeals summarized the facts and procedural history of the case as follows:
The Court presumes the Arizona Court of Appeals' summary of the facts is correct. 28 U.S.C. § 2254(e)(1).
At a combined hearing on this case and another-CR 2017-03129-Robles pleaded guilty in this case to possession of methamphetamine, possession of drug paraphernalia, and resisting arrest. After sentencing, however, the court ordered “both parties to submit Brief[s] to the Court” addressing “whether the Defendant should be sentenced as a Category Two (2) or a Category Three (3) Repeat Offender, ” based on questions as to whether the convictions entered in CR 2017-03129 could be used to enhance Robles's sentence in this case.
The state filed a memorandum arguing Robles's convictions in CR 201703129 and a prior conviction for theft of a means of transportation from 2018 were historical prior felony convictions for purposes of enhancement. Robles did not file a memorandum, but argued at sentencing that, because he had entered his guilty plea in CR 2017-03129 on the same day as his guilty plea in this proceeding, those convictions could not be historical prior felony convictions. At sentencing, the trial court accepted the state's position and sentenced Robles as a category-three repetitive offender. It imposed a nine-year prison term on the methamphetamine count, a five-year term on the paraphernalia count, and time served for resisting arrest.
Robles thereafter sought post-conviction relief, arguing the trial court had “imposed an illegal sentence” by imposing an enhanced sentence. He maintained that because “his convictions in both case numbers occurred at the same time, ” the convictions in CR 2017-03129 could not be used to enhance the sentences in this case. He also argued counsel had been ineffective by “failing to adequately research the relevant case law and present a cogent argument” after the court sought input on whether Robles could be sentenced as a category-three offender. The court summarily dismissed the petition, concluding the sentence was lawful and therefore
Robles had not been prejudiced by any failure of counsel to adequately argue the issue.(Doc. 1-2 at 111-12.)
On March 10, 2021, the Arizona Court of Appeals ruled that Petitioner's 2017 conviction qualified as a historical prior felony conviction for his 2018 conviction. (Id. at 112-15.)
On January 4, 2022, the Arizona Supreme Court denied Petitioner's Petition for Review. (Doc. 6, Exhibit A.)
III. Petition for Writ of Habeas Corpus.
On February 9, 2023, Petitioner filed the instant habeas petition. (Doc. 1). As summarized by the Court:
The Petition is timely. Petitioner had 90 days to file a petition for writ of certiorari in the United States Supreme Court after the Arizona Supreme Court denied relief. Sup. Ct. R. 13. Consequently, Petitioner's convictions and sentences became final on April 4, 2022. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (“[T]he period of ‘direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition.”).
Petitioner raises two grounds for relief:
(1) “Trial counsel rendered ineffective assistance of counsel by failing to research state law on sentencing enhancements based on prior convictions”; and
(2) “The Petitioner is entitled to relief because he received incompetent advice regarding sentencing, which prompted his decision to enter a plea of guilty.”(Doc. 3 at 1). On March 27, 2023, Respondents filed a Response. (Doc. 6). On April 21, 2023, Petitioner filed a Reply. (Doc. 7).
IV. Legal Standards.
A. Requisites for Federal Habeas Review.
1. Federal Claim.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citations omitted); see Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). “[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.” Dugger v. Adams, 489 U.S. 401, 409 (1989). A petitioner “may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
2. Exhaustion of State Remedies.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity, ' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires a prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
3. Absence of State Procedural Bar.
“A federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. Under this doctrine, a claim is procedurally defaulted and consequently barred from federal review “if the state court denied the claim on state procedural grounds” or “if [the] claim is unexhausted but state procedural rules would now bar consideration of the claim.” Id.; see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))).
To preclude federal review, the state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Martinez, 566 U.S. at 9. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Under these rules, a defendant is precluded from relief on any constitutional claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). A defendant waives a claim by failing to assert it during the appropriate proceeding unless the claim implicates a “right . . . of sufficient constitutional magnitude to require personal waiver by the defendant, ” e.g., the right to a jury and the right to counsel. Stewart v. Smith, 202 Ariz. 446, 449-50 (2002).
To obtain review of a procedurally defaulted claim, the prisoner must show “cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005). The latter requires a showing of actual innocence. Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
B. Ineffective Assistance of Counsel.
To succeed on a claim of ineffective assistance of counsel, Petitioner must show: (1) counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness, ” and (2) “the deficient performance prejudiced the [petitioner's] defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). This test also applies to ineffective assistance of counsel charges in the guilty plea setting. Hill v. Lockhart, 474 U.S. 52, 58 (1985). To satisfy the second prong in the context of a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.
If a petitioner fails to establish one of Strickland's two prongs, the Court need not address the other. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998) (“We have previously held that it is unnecessary to consider the prejudice prong of Strickland if the petitioner cannot even establish incompetence under the first prong.” (citation omitted)).
“[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689 (citation omitted). To establish prejudice, the movant must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
V. Analysis.
A. Ground One.
In Ground One, Petitioner asserts “counsel rendered ineffective assistance of counsel by failing to research state law on sentencing enhancements based on prior convictions.” (Doc. 1 at 14.) Petitioner did not present this claim in the Arizona Court of Appeals, so Ground One is unexhausted and procedurally defaulted.
1. Procedural Default.
On November 15, 2018, Petitioner pleaded guilty in two cases during the same plea hearing. In CR 2017-3129, he pleaded guilty to Possession of a Dangerous Drug (a class four felony). In CR 2018-1105, Petitioner pleaded guilty to Possession of a Dangerous Drug (a class four felony). At sentencing on April 8, 2019, the State argued that Petitioner's conviction in the CR 2017-3129 case qualified as a prior historical conviction because the plea colloquy in the 2017 case preceded (if only by minutes) the plea colloquy in the 2018 case. (Doc. 1-2 at 42-44.) If the 2017 case qualified as a prior conviction, Petitioner faced a longer sentence in the 2018 case as a Category 3 offender rather than a Category 2 offender. The trial court found the 2017 conviction qualified as a prior conviction for the 2018 case, which permitted a longer total sentence of nine years of imprisonment in the 2018 case compared to a sentence of five years of imprisonment in the 2017 case (doc. 12 at 71). The Arizona Court of Appeals affirmed the sentences. (Doc. 1-2 at 110.)
Petitioner does not dispute he had a prior felony conviction in an unrelated case for Theft of Means of Transportation (CR 2016-2826). (Doc. 1-2 at 89.) Petitioner had other prior felony convictions that were too old to qualify for sentencing enhancement.
In both the 2017 and 2018 cases, Petitioner also pleaded guilty to other class 6 felony and misdemeanor charges. Those sentences all ran concurrently to the other sentences and had no meaningful effect in his cases.
While this Court is sympathetic to Petitioner's claim, he is not entitled to habeas relief. In his Petition for Post-Conviction Relief in the Superior Court, Petitioner raised a claim of ineffective assistance of counsel. (See Doc. 1-2 at 93.) But, in his Petition for Post-Conviction Relief in the Arizona Court of Appeals, Petitioner raised only one claim: Petitioner “should not have been subjected to an enhanced sentence based upon his guilty plea in CR 2017-3129 which was entered during the same hearing as the one in which he pled guilty in this case.” (Doc. 1-2 at 99.) Petitioner did not raise the claim in Ground One in the Arizona Court of Appeals as he is required to do. Petitioner also filed a Petition for Review in the Arizona Supreme Court, but he also did not raise a claim on ineffective assistance of counsel in this Petition. (Doc. 1-2 at 117.) See Baldwin v. Reese, 541 U.S. 27, 29 (2004).
As the Arizona Court of Appeals correctly found, the trial court accepted Petitioner's plea in the 2017 case before beginning the plea in the 2018 case. (See Doc. 1-2 at 21, 31.) Under Arizona law, “[o]ne is convicted when there has been a determination of guilt by verdict, finding, or the acceptance of the plea.” (Id. at 113.) Petitioner was advised that he faced enhanced sentencing in the 2018 case as a result of the 2017 case. (Id. at 25.) Nonetheless, Petitioner faced enhanced sentencing in the 2018 case because the plea in the 2017 case was accepted minutes before the court accepted his plea in the 2018 case. His actual sentence in the 2018 case was four years greater than the 2017 case, perhaps in part because the court chose not to accept both pleas at the same time. This Court is troubled that a defendant can face additional years of imprisonment based solely on how a judge decides to conduct a plea proceeding.
Petitioner incorrectly asserts the Arizona Court of Appeals addressed his claim. In his Reply, Petitioner states the “Court of Appeals addressed Petitioner's argument.” (Doc. 7 at 8.) This statement is false. The Arizona Court of Appeals noted that Petitioner raised an ineffective assistance of counsel claim in the trial court. The Arizona Court of Appeals did not address the issue of ineffective assistance of counsel.
In his Reply, Petitioner argues that he raised a claim of ineffective assistance of counsel by noting in his Petition in the Arizona Supreme Court that “[d]efense counsel did not file a memorandum [regarding prior convictions], but he argued at sentencing that the conviction in CR 2017-3129 preceding the conviction on the instant offense by only a matter of minutes.” (Doc. 7 at 5; doc. 1-2 at 120.) At no time did Petitioner allege ineffective assistance of counsel or address Strickland in his PCR petitions in the Arizona Court of Appeals or the Arizona Supreme Court. Petitioner's claim he exhausted Ground One is incorrect.
2. Martinez v. Ryan.
In his Reply, Petitioner cites to Martinez v. Ryan, 566 U.S. 1 (2012). Under Martinez, the ineffective assistance or lack of post-conviction counsel may serve as cause for the procedural default of an ineffective assistance of trial counsel claim. Martinez, 566 U.S. at 14. For the Martinez exception to apply, a petitioner must show that that the underlying ineffective assistance of counsel claim is “substantial, ” which means that it “has some merit” and is not “wholly without factual support.” Martinez, 566 U.S. at 14-16. Notwithstanding that Petitioner argues his claim was raised in the Arizona Court of Appeals, this Court will liberally construe his claim to determine whether it is sufficiently substantial to excuse his procedural default.
Petitioner presents three arguments that trial counsel provided ineffective assistance. Petitioner first argues that failure “to research case law and sentencing is textbook deficient performance.” (Doc. 1 at 17.) Assuming arguendo Petitioner demonstrates deficient performance, he fails to demonstrate prejudice. Regardless of counsel's conduct, the Arizona Court of Appeals ruled that Petitioner was properly sentenced as a Category 3 offender under Arizona law. Counsel's failure to conduct research did not affect the ruling of the Arizona Court of Appeals.
Petitioner next argues that Petitioner's plea of guilty was not voluntary because counsel provided incompetent advice. (Doc. 1 at 19-20.) But counsel did advise Petitioner during the change of plea that he would face sentencing in the 2018 case as a “Category 3” offender based upon his 2017 plea. (Doc. 1-2 at 23.) During the 2018 colloquy (a few minutes after the 2017 colloquy), the court advised Petitioner that he faced enhanced sentencing with “two prior felony convictions” and faced a sentence between “6 to 15 years” in the 2018 case. (Doc. 1-2 at 25.) Even if counsel performed deficiently, Petitioner fails to demonstrate prejudice because the court informed Petitioner he would be sentenced in the 2018 case as a Category 3 offender. In his habeas petition, Petitioner agrees he was advised during the change of plea proceeding that he “would be subject to sentencing as a Category 3 offender in the instant case.” (Doc. 1 at 20.) These advisements and counsel's advice mirrored the conclusion of the Arizona Court of Appeals. Counsel did not provide ineffective assistance by providing legal advice the Arizona Court of Appeals found to be correct. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (finding the merits of a “claim control the resolution of the Strickland claim because trial counsel cannot have been ineffective for failing to raise a meritless objection.”).
During the 2017 plea colloquy, counsel advised on the record that Petitioner would be “Category 2 on [the 2017 case]” but would “be category 3 on [the 2018 case].” (Doc. 1-2 at 23.)
Petitioner next argues that he was “prejudiced by counsel's incompetent advice.” (Doc. 1 at 20.) He submits that “at the change of plea proceeding defense counsel Mark Mendoza incorrectly told the court that Petitioner would be subject to sentencing as a Category 3 offender in the instant case.” (Id.) But counsel did not “incorrectly” advise Petitioner. The Arizona Court of Appeals confirmed his counsel's advice that Petitioner would face sentencing as a Category 3 offender.
Petitioner's claim is not substantial because he cannot establish that, but for trial counsel's alleged errors or omissions, there is a reasonable probability that the outcome of his criminal proceeding would have been more favorable. See Strickland, 466 U.S. at 694.
The Court notes that any claim based upon a violation of state law is not cognizable. Swarthout, 562 U.S. at 219. Petitioner does not allege actual innocence to excuse his procedural default, and such a claim is likely insufficient. See United States v. Jones, 758 F.3d 579, 586 (4th Cir. 2014) (concluding that “McQuiggin [v. Perkins, 569 U.S. 383, 386 (2013)] does not extend to cases in which a movant asserts actual innocence of his sentence, rather than of his crime of conviction” and citing cases in support).
B. Ground Two.
In Ground two, Petitioner argues that he “is entitled to relief because he received incompetent advice regarding sentencing, which prompted his decision to enter a plea of guilty.” (Doc. 1 at 21.) Petitioner again submits that counsel “rendered incompetent advice regarding the plea and sentencing” and “did not file a memorandum” on the sentencing enhancement issue. (Id. at 22-23.) To establish prejudice on a claim of ineffective assistance of counsel challenging the voluntary and intelligent character of a guilty plea, a “defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Petitioner did not raise this claim in the Arizona Court of Appeals, so this claim is unexhausted and procedurally defaulted. Petitioner fails to establish cause and prejudice to excuse this default. Regarding Martinez, Petitioner's claim is not substantial. As noted above, Petitioner's counsel did not err when he advised Petitioner that the 2017 charge would qualify as a prior conviction in the 2018 case. (Doc. 1-2 at 23.) Petitioner also fails to establish prejudice because the court similarly advised Petitioner. During his 2018 plea colloquy, the court informed Petitioner he would have “two prior felony convictions” and would be “looking at 8 to 17 years on this count only, you understand that?” (Doc. 1-2 at 25.) The court told Petitioner, “[T]he best you could do would be looks like six plus two would be eight years, you understand that.” (Doc. 1-2 at 28.) Petitioner pleaded guilty in each case after counsel and the court correctly advised him of his potential sentences. Because Petitioner's claim is not substantial, he fails to establish cause and prejudice to excuse the procedural default of his claim.
Petitioner is not entitled to relief on this claim.
VI. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Hab. R. 11(a). The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As to all of Petitioner's claims, Petitioner has failed to make the requisite showing and the Court will recommend that a certificate of appealability be denied.
Accordingly, IT IS RECOMMENDED that the Petition for a Writ of Habeas Corpus (Doc. 1) be DENIED and DISMISSED with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied as to all of Petitioner's claims.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.