Opinion
CV-22-02050-PHX-DLR (DMF)
12-12-2023
Juan M Tolano, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 7 at 4)
Petitioner Juan M. Tolano (“Petitioner”), who is confined in the Arizona State Prison Complex in Tucson, Arizona, filed a pro se petition for writ of habeas corpus (“Petition”). (Doc. 1) On January 9, 2023, the Court dismissed the Petition for failure to use a court-approved form and granted Petitioner leave to file an amended petition within 30 days of the Court's Order. (Doc. 4)
On February 2, 2023, Petitioner filed an Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”). (Doc. 6) On March 15, 2023, the Court ordered Respondents to answer the Amended Petition. (Doc. 7 at 3-4) In doing so, the Court ordered that:
The Amended Petition was docketed by the Clerk of Court on February 6, 2023. (Doc. 1) The Amended Petition contains a declaration by Petitioner that he placed the Amended Petition in the prison mailing system on February 2, 2023. (Id. at 29) This Report and Recommendation uses February 2, 2023, as the operative filing date of the Amended Petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs, dates, and attests the petition was placed in the prison mailing system). Likewise, Petitioner initiated these proceedings on November 22, 2022. (Doc. 1 at 5) In any event, Respondents did not raise timeliness as an affirmative defense. (Doc. 13)
Respondents may file an answer that (a) is limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative defenses as to some claims and discusses the merits of others; or (c) discusses the merits of all claims. The failure to set forth an affirmative defense regarding a claim in an answer may be treated as waiver of the defense as to that claim, Day v. McDonough, 547 U.S. 198, 209-11 (2006), but an answer that is limited to affirmative defenses on a particular claim does not waive any argument on the merits as to that claim. If the answer only raises affirmative defenses, only those portions of the record relevant to those defenses need be attached to the answer. If not, the answer must fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2254 Cases.(Id.)
On June 5, 2023, Respondents filed their Limited Answer to the Amended Petition. (Doc. 13) On August 3, 2023, Petitioner filed a reply. (Doc. 16)
For the reasons set forth below, it is recommended that these proceedings be dismissed and denied with prejudice, that the Clerk of Court be directed to terminate this matter, and that a certificate of appealability be denied.
I. BACKGROUND
A. Charges, Pleas, and Sentences
Petitioner's Amended Petition challenges Petitioner's convictions and sentences in Maricopa County Superior Court case numbers CR2014-006097-001 and CR2016-002031-001. (Doc. 6) The Arizona Court of Appeals correctly summarized the proceedings leading to Petitioner's challenged convictions and sentences in the court of appeal's decision granting review and denying post-conviction relief:
¶2 The state charged [Petitioner], by indictments filed in 2014 and 2016, with committing multiple assaults (CR2014-006097-001) and drug crimes (CR2016-002031-001). In 2017, [Petitioner] accepted plea offers in both
cases. In the 2014 case, he pleaded guilty to committing aggravated assault by injuring his minor nephew. In the 2016 case, he pleaded guilty to possessing methamphetamine, a dangerous drug.
¶3 The superior court sentenced [Petitioner] to one year imprisonment for each conviction. It awarded him 365 days of presentence incarceration credit toward each sentence and ordered the sentences to run concurrently with one another and with a sentence imposed in a third case (CR2014-133407-001) that is not a part of this proceeding.(Doc. 13-1 at 163)
1. Case Number CR2014-006097-001
In Maricopa County Superior Court case number CR2014-006097-001, a grand jury indicted Petitioner with three crimes: two counts of aggravated assault, each a class 6 felony against a minor victim, and one count of assault, a class 1 domestic violence misdemeanor. (Doc. 13-1 at 4-6) During various stages of the proceedings, Petitioner was represented by trial court counsel Ernesto Quesada, trial court counsel Stephen Crawford, or proceeded pro se with advisory trial court counsel Jesus Acosta. (See Doc. 13-2 at 4, 63, 139)
On April 24, 2015, Maricopa County Superior Court Commissioner Charles Donofrio, III, held a settlement conference in case number CR2014-006097-001. (Id. at 2-59) At the settlement conference, Commissioner Donofrio stated that Petitioner could receive up to an 11.5-year term of imprisonment if convicted at trial of the charges in case number CR2014-006097-001. (Id. at 9-10)
The settlement conference also regarded case number CR2014-133407, but Petitioner does not challenge any conviction or sentence in case number CR2014-133407 in these habeas proceedings.
On August 19, 2016, Maricopa County Superior Court Judge Greg Como held a joint settlement conference in case number CR2014-006097-001 and case number CR2016-002031-001, which are the cases at issue in this habeas action. (Id. at 61-135) Petitioner proceeded pro se with advisory counsel Jesus Acosta at the settlement conference. (Id. at 63) At the settlement conference, the charges against Petitioner, potential consequences of convictions, sentencing ranges for each charge, and possible plea offers were discussed. (Id. at 74-134)
On June 28, 2017, Maricopa County Superior Court Judge Barbara Spencer held a change of plea hearing before in both case number CR2014-006097-001 and case number CR2016-002031-001, during and after which Petitioner was represented by counsel Stephen Crawford. (Doc. 13-1 at 12-13; Doc. 13-2 at 137-62) Petitioner had a separate plea agreement for each case number CR2014-006097-001 (Doc. 13-1 at 8-10) and case number CR2016-002031-001 (Id. at 25-27).
Judge Spencer was presiding over Judge Como's calendar. (Doc. 13-2 at 140)
In the plea agreement in case number CR2014-006097-001, Petitioner agreed to plead guilty to one count of aggravated assault as amended count one, a class 6 designated felony and domestic violence offense. (Doc. 13-1 at 8-10) As a term of the plea agreement, the state agreed to dismiss the remaining counts in case number CR2014-006097-001 and also dismiss the allegation of Petitioner's prior felony convictions in case number CR2014-006097-001. (Id. at 9) Petitioner's plea agreement in case number CR2014-006097-001 was “contingent upon [Petitioner's] entry into, and the Court's acceptance of, a plea agreement with the State in Maricopa County Superior Court Cause No. CR2016-002031-001” and was subject to revocation if Petitioner did not enter or the court did not accept the plea agreement in case number CR2016-002031-001. (Id.) In the plea agreement in case number CR2014-006097-001, Petitioner expressly acknowledged that he had read and understood the terms of the plea agreement, had discussed his rights and the charges against him with his counsel, and understood the rights he was giving up by entering into the plea agreement. (Id. at 10) Petitioner initialed next to each term of the plea agreement and signed the plea agreement. (Id. at 8-10; Doc. 13-2 at 142) The plea agreement called for an imprisonment sentence of the presumptive term, which was one year. (Doc. 13-1 at 9; 132 2 at 143)
The plea agreement in case number CR2014-006097-001 also contained an avowal by Petitioner that he had no more than four total prior felony convictions, he was not on supervision at the time of the offense to which he was pleading guilty, and his only other pending felony matters in any jurisdiction were in Maricopa County Superior Court case numbers CR2014-133407-001 and CR2016-002031-001. (Doc. 13-1 at 9)
As Judge Spencer explained at the change of plea hearing, the plea agreement in case number CR2014-006097-001 had been amended to reflect the presumptive term of imprisonment at the Department of Corrections, which was one year, rather than 365 days incarceration at the jail with 365 days credit for time already served in jail custody. (Doc. 13-2 at 140-141, 143-44) The change did not alter the incarceration period because Department of Corrections would credit Petitioner for the year served at the jail, but the change allowed imposition of the required domestic violence conviction community supervision. (Id.)
At the change of plea hearing, Petitioner stated that he wished to enter a guilty plea in case number CR2014-006097-001 to one count of aggravated assault pursuant to the plea agreement. (Doc. 13-2 at 141-142) Judge Spencer questioned Petitioner as to whether he understood the terms of the plea agreements in both case numbers CR2014-006097-001 and CR2016-002031-001 and whether he had discussed the plea agreements with his lawyer, and Petitioner answered in the affirmative:
THE COURT: Okay. Have you had enough time to go over the pleas with your lawyer, and has he answered all your questions?
[PETITIONER]: Yes, Your Honor.
THE COURT: Do you understand the plea agreements?
[PETITIONER]: Yes, I do.
THE COURT: Do they contain everything that you have agreed to with the State?
[PETITIONER]: Yes, Your Honor.(Id. at 142-143)
THE COURT: So have you had enough time to go over the pleas with your lawyer, and has he answered all your questions?
[PETITIONER]: Yes. I -- I -- I believe so.
THE COURT: Well, you believe so, or you're not sure?
[PETITIONER]: No. I -- I'm sure.
THE COURT: All right. Do you understand the plea agreements?
[PETITIONER]: I understand.
THE COURT: Do they contain everything you have agreed to with the State?
[PETITIONER]: They do.
THE COURT: All right. Answer yes or no -
[PETITIONER]: Yes.
THE COURT: -- so we're making a really clear record. Is there anything else written anywhere you did not agree to?
[PETITIONER]: No.
THE COURT: Has anybody forced you, threatened you, or promised you anything to get you to plead guilty?
[PETITIONER]: No.
THE COURT: If you plead guilty and the Court finds you guilty, there will be these two convictions on your record. Do you understand that?
[PETITIONER]: I understand it. Yes.
THE COURT: Are you currently on probation, parole or community supervision for any other case?
[PETITIONER]: No.
THE COURT: If the sentencing judge determines that any of the agreements or stipulations in your pleas are inappropriate or too harsh or too lenient, the judge could reject the pleas. In which case, you could take back your guilty pleas and go to trial on the original charges. Do you understand that?
[PETITIONER]: Yes.
THE COURT: Once the pleas are accepted, you can't withdraw from them, unless it's necessary to do what's called correct a manifest injustice. Do you understand that?
[PETITIONER]: Yes.(Doc. 13-2 at 144-46) During the change of plea colloquy, Judge Spencer also reviewed with Petitioner trial and appellate rights given up by entering a guilty plea:
THE COURT: By pleading, you give up certain Constitutional rights. You have the right to an attorney at all stages in the proceedings. You have the right to keep your plea of not guilty and be presumed innocent and have the State prove you guilty beyond a reasonable doubt at a jury trial.
At your trial, you have the right to call your own witnesses, cross-examine or question the State's witnesses, present your own evidence, testify or not and not have your silence used against you. You have the right to have the Court subpoena witnesses of your choosing to come to court for you.
You have the right to a jury determination beyond a reasonable doubt as to any aggravating factors that may be relevant to sentencing, and if you lose at trial, you have the right to appeal to a higher Court. Do you understand those rights?
[PETITIONER]: Yes, Your Honor.
THE COURT: And you want to give up those rights and plead guilty? [PETITIONER]: Yes, Your Honor.
THE COURT: Do you understand that by giving up those rights, your only right to review, if you think somebody made a legal mistake in your case, is to do what's called a petition for post-conviction relief. You have to do that within 90 days of your sentencing date, or you could lose that right.
And if you don't agree with the Court's finding in that matter, you can ask the Court of Appeals to hear your case, but they don't have to do so. Do you understand that?
[PETITIONER]: Yes, Your Honor.(Id. at 151-52)
Petitioner pleaded guilty pursuant to the plea agreements in both cases, and Petitioner agreed with the factual bases stated on the record. (Doc. 13-2 at 153-59) Judge Spencer found that the guilty pleas in both cases were made by Petitioner knowingly, voluntarily, and intelligently. (Id. at 159)
During the July 27, 2017, sentencing hearing, Judge Como found that Petitioner knowingly, intelligently, and voluntarily waived his constitutional and appellate rights and entered a guilty plea in case number CR2014-006097-001, accepted Petitioner's guilty plea in case number CR2014-006097-001, and sentenced Petitioner to a presumptive sentence of a one-year imprisonment term with 365 days of presentence incarceration credit, to run concurrently with Petitioner's sentences in case numbers CR2016-002031-001 and CR2014-133407-001, the latter of which is not the subject of this habeas action. (Id. at 1720; Doc. 13-2 at 164-76) Judge Como further imposed fees and a term of community supervision in case number CR2014-006097-001. (Doc. 13-1 at 18) Also on July 27, 2017, Petitioner signed and acknowledged his receipt of a Notice of Rights of Review After Conviction and Procedure form. (Id. at 15)
2. Case Number CR2016-002031-001
In Maricopa County Superior Court case number CR2016-002031-001, a grand jury indicted Petitioner with two crimes: one count of possession or use of dangerous drugs, a class 4 felony, and one count of possession of drug paraphernalia, a class 6 felony. (Id. at 22-23)
As discussed in Section 1(A)(1), supra, Maricopa County Superior Court Judge Como held a settlement conference on August 19, 2016, at which the charges against Petitioner, potential consequences of convictions, sentencing ranges for each charge, and possible plea offers were discussed. (Doc. 13-2 at 61-134) Petitioner proceeded pro se with advisory counsel Jesus Acosta at the settlement conference. (Id. at 63) Judge Como stated that if Petitioner were convicted at trial of the charges against him in case number CR2016-002031-001, Petitioner could receive a maximum sentence of 17 years' imprisonment for one count of possession of dangerous drugs, and 7.75 years' imprisonment for one count of possession of drug paraphernalia. (Id. at 95-101) Also discussed was Petitioner's motion to dismiss case number CR2016-002031-001, in which Petitioner disputed the police officers' reason for the vehicle stop that led to the charges against Petitioner. (Id. at 10406) Judge Como did not rule on Petitioner's motion to dismiss, but stated that the motion likely would be denied. (Id.)
Also as discussed supra, on June 28, 2017, Maricopa County Superior Court Judge Spencer held a change of plea hearing in both case number CR2014-006097-001 and case number CR2016-002031-001, the cases at issue in this habeas action. (Doc. 13-1 at 29-30) Petitioner stated that he understood the terms of his plea agreements, that he had discussed the agreements with his lawyer, that he was not forced into entering his plea agreements, and that he understood he was giving up numerous rights by entering guilty pleas. (Doc. 13-2 at 142-46, 151-52) Pursuant to the terms of the plea agreement in case number CR2016-002031-001, Petitioner pleaded guilty to one count of possession of dangerous drugs, a class 4 felony. (Doc. 13-1 at 25-27) The state agreed to dismiss the remaining count of possession of drug paraphernalia, an allegation of Petitioner's prior felony convictions, and an allegation that Petitioner was on felony release in case numbers CR2014-006097-001 and CR2014-133407-001 when he committed the offense charged in case number CR2016-002031-001. (Id. at 26) Petitioner's plea agreement in case number CR2016-002031-001 was “contingent upon [Petitioner's] entry into, and the Court's acceptance of, a plea agreement with the State in Maricopa County Superior Court Cause No. CR2014-006097-001” and was subject to revocation if Petitioner did not enter or the court did not accept a plea agreement in case number CR2014-006097-001. (Id.) Petitioner initialed next to each term of the plea agreement in case number CR2016-002031-001, including a term stating that he had read and understood the terms of the plea agreement, had discussed his rights and the charges against him with his counsel, and understood the rights he was giving up by entering into the plea agreement, and signed the plea agreement. (Id. at 25-27)
On June 28, 2017, Petitioner pleaded guilty pursuant to the plea agreements in both case numbers CR2014-006097-001 and CR2014-133407-001, and Petitioner agreed with the factual bases stated on the record. (Doc. 13-2 at 153-59) Judge Spencer found that the guilty pleas in both cases were made by Petitioner knowingly, voluntarily, and intelligently. (Id. at 159) Judge Spencer accepted Petitioner's guilty plea in case number CR2016-002031-001. (Doc. 13-1 at 30)
On July 27, 2017, Judge Como found that Petitioner knowingly, intelligently, and voluntarily waived his constitutional and appellate rights and entered a guilty plea in case number CR2016-002031-001. (Id. at 35) Pursuant to the plea agreement in case number CR2016-002031-001, Judge Como sentenced Petitioner to a mitigated sentence of a one-year imprisonment term with 365 days of presentence incarceration credit, and he ordered the sentence to run concurrently with Petitioner's sentences in case numbers CR2014-006097-001 and CR2014-133407-001. (Id. at 33, 35-38) Judge Como further imposed fees and a term of community supervision. (Id. at 36-37) Also on July 27, 2017, Petitioner signed and acknowledged his receipt of a Notice of Rights of Review After Conviction and Procedure form. (Id. at 32)
B. Petitioner's Post-Conviction Relief (“PCR”) Proceedings in Case Numbers CR2014-006097-001 and CR2016-002031-001
On September 27, 2017, Petitioner filed the same pro se PCR Notices in the superior court in case numbers CR2014-006097-001 and CR2016-002031-001 and requested appointment of PCR counsel. (Doc. 13-1 at 40-42, 91-93) On June 14, 2018, appointed PCR counsel Cedric Martin Hopkins (“PCR counsel”) filed a notice of completion of review, determined that the record in both case numbers CR2014-006097-001 and CR2016-002031-001 contained no basis for PCR relief, and requested an extension of time for Petitioner to file a pro se PCR petition. (Id. at 103-07) On June 25, 2018, the Court granted Petitioner leave to file a pro se PCR petition and ordered that PCR counsel remain in an advisory capacity for Petitioner. (Id. at 109-10) On August 2, 2019, the superior court dismissed Petitioner's PCR proceedings because Petitioner had not filed a PCR petition or requested an extension to do so by the appropriate deadline of May 29, 2019. (Id. at 112)
The prison mailbox rule applies to Petitioner's PCR notice. Melville, 68 F.4th at 1159 (“We assume that [Melville] ‘turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.' Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam).'). Petitioner's PCR notice was signed and dated on September 27, 2017. (Doc. 13-1 at 42)
On October 3, 2017, prior to PCR counsel's completion of review, Petitioner filed a pro se PCR petition in case number CR2014-006097-001, which did not become the operative PCR petition. (Doc. 13-1 at 44-53)
The filing date is the operative date of the superior court's ruling. See Ariz. R. Crim. P. 1.10(c) (see former Ariz. R. Crim. P. 1.3(c)).
Following Petitioner's motion for a stay and for an extension to file a pro se PCR petition, the superior court reinstated Petitioner's PCR proceedings on November 6, 2019. (Id. at 114-15) On February 25, 2020, Petitioner filed the same pro se PCR petition in both case numbers CR2014-006097-001 and CR2016-002031-001. (Id. at 55-64, 117-26) In his PCR petition, Petitioner argued that he received disparate treatment under the Equal Protection Clause in case number CR2014-006097-001 because his trial court counsel could not review all the discovery in his case and discuss it with Petitioner, that Petitioner entered the plea agreements under duress despite wanting to proceed to trial, that an evidentiary hearing should have been held regarding medical evidence, that a hearing should have been held regarding the inability of any trial court counsel to review all discovery, and that the state discriminated against Petitioner in case number CR2016-002031-001 because the state successfully argued against dismissal of the case due to an alleged Fourth Amendment violation. (Id. at 56-62)
On June 9, 2020, the state filed a response to Petitioner's PCR petition, arguing that Petitioner's claims were precluded due to Petitioner's guilty pleas and that Petitioner knowingly, voluntarily, and intelligently entered his guilty pleas. (Id. at 66-75, 128-37) On July 1, 2020, Petitioner filed a reply. (Id. at 77-89)
On August 12, 2020, the superior court summarily dismissed Petitioner's PCR petition in case numbers CR2014-006097-001 and CR2016-002031-001. (Id. at 139-40) In doing so, the superior court stated:
The most pertinent fact is that [Petitioner] pled guilty in both cases after goingthrough a thorough change of plea colloquy. (6-28-17, Change of Plea Tr.). During this plea colloquy, [Petitioner] stated that he was “sure” that he had gone over the plea agreements with his counsel and that counsel had answered all of his questions. (6-28-17 Tr. at 8). He further acknowledged that no one had forced him, threatened him, or promised him anything to get him to plead guilty. Id. at 9.
A valid guilty plea forecloses a defendant from raising nonjurisdictional defects. State v. Hamilton, 142 Aris. 91, 94 (1982). This waiver includes claims of deprivation of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267 (1973). [Petitioner's] conclusory claim that the prosecutor denied him equal protection under the law through disparate treatment was thus waived.
Without expressly raising an ineffective assistance of counsel claim, [Petitioner] criticizes his three attorneys for not adequately reviewing the discovery. (Pet. at 3-4) However, a claim of ineffective assistance of counsel is waived by entry of a guilty plea except those claims that relate to the validity of the plea. State v. Leyva, 241 Ariz. 521, 527 (App. 2017). [Petitioner's] criticisms of counsel do not relate to the advice he received regarding the plea agreement. Thus, to the extent [Petitioner] is claiming ineffective assistance, that claim is also waived.
[Petitioner] also makes an unsupported claim that he was under duress when he entered into the plea agreements. He offers no factual support for this assertion, nor does he explain the source of the alleged duress. In fact, [Petitioner] entered into very favorable plea agreements, which resulted in being sentenced to “time-served”, one-year prison sentences that ran concurrently with a longer prison sentence he had already received. When the [Petitioner] tells the court that he understands the plea, and he was not coerced into entering it, his statements create a “formidable barrier” to a subsequent challenge to the plea's validity. Leyva, 241 Ariz. at 525, ¶12. [Petitioner's] vague claims of duress do not approach, much less clear, this barrier.
In sum, [Petitioner's] petitioner fails to raise a material issue of fact or law which would entitle him to relief on any of the grounds set forth in Rule 32.1, Ariz. R. Crim. Proc.(Id.)
On September 17, 2020, Petitioner filed a motion for reconsideration of the superior court's order dismissing his PCR petition. (Id. at 142-49) On October 27, 2020, the superior court denied Petitioner's motion for reconsideration for Petitioner's failure to show good cause for reconsideration. (Id. at 151)
On November 9, 2020, Petitioner filed a petition for review in the Arizona Court of Appeals. (Id. at 153-59) In his petition for review, Petitioner raised the same grounds as in his PCR proceedings in the superior court. (Id.) Petitioner argued that his plea agreement was an exception to Tollett v. Henderson, 411 U.S. 258 (1973); that PCR counsel failed to raise Petitioner's arguments in Petitioner's PCR petition, reply in support of his PCR petition, and motion for reconsideration of the superior court's order dismissing his PCR petition; that none of Petitioner's counsel reviewed all discovery; and that Petitioner's plea agreement was not informed and intelligent. (Id. at 154-55)
On January 4, 2022, the court of appeals granted review of Petitioner's petition for review but denied relief, stating:
“A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilty and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569 (1989). Given “the admissions inherent” in a guilty plea, id. at 576, a defendant who “voluntarily and knowingly pleads guilty” waives “all non-jurisdictional defenses, defects and irregularities in the proceedings.” State v. Nicholson, 109 Ariz. 6, 8 (1972). Accordingly, a defendant convicted after a plea is limited to challenging “whether the underlying plea was both counseled and voluntary” or whether “on the face of the record the court had no power to enter the conviction or impose the sentence.” Broce, 488 U.S. at 569.
[Petitioner's] claims that the state selectively and vindictively prosecuted him, and that it violated his Fourth Amendment rights, are non-jurisdictional defenses that he waived by pleading guilty. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”); State v. Murphy, 97 Ariz. 14, 15 (1964) (holding that a defendant's guilty plea forecloses challenges to the legality of a search or seizure); State v. Webb, 140 Ariz. 321, 323 (App. 1984) (holding that a vindictive prosecution claim is a non-jurisdictional defense waived by a guilty plea).
A guilty plea does not bar a claim “that counsel's ineffective assistance led the defendant to make an uninformed decision to accept . . . a plea bargain, thereby making his or her decision involuntary.” State v. Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013).
To establish such a claim, the defendant must show that counsel's performance “fell below an objective standard of reasonableness” and “there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985) (citation and internal quotation marks omitted). The showing of prejudice requires the defendant to allege “specific facts which would allow a court to meaningfully assess why [counsel's] deficiency was material to the plea decision.” State v. Bowers, 192 Ariz. 419, 425, ¶ 25 (App. 1998).
Here, [Petitioner's] ineffective-assistance claim is based on his conclusory assertion that none of his defense attorneys ever reviewed the discovery in the 2014 assault case. Assuming for the sake of argument that this unsubstantiated claim is correct, it is not colorable because [Petitioner] fails to demonstrate that counsel's alleged incompetence led him to plead guilty rather than proceed to trial. See id. [Petitioner] acknowledges in his petition for post-conviction relief that he knew the contents of the discovery when he decided to plead guilty. When he entered the plea, he confirmed that he had sufficient time to discuss it with his attorney and that the attorney had answered all his questions. He also admitted that he had committed the charged offense. “Such ‘[slolemn declarations in open court carry a strong presumption of verity,' and ‘constitute a formidable barrier' in a subsequent challenge to the validity of the plea.” State v. Leyva, 241 Ariz. 521, 525, ¶ 12 (App. 2017) (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). Because [Petitioner] does not articulate, and the record does not otherwise disclose, how defense counsel's review of the discovery would have altered [Petitioner's] decision to plead guilty, he fails to establish a colorable claim.
[Petitioner] did not waive his claim that he pleaded guilty by reason of duress. See State v. Murray, 101 Ariz. 469, 469 (1966) (“A showing that a plea of guilty was induced by fraud or duress is clearly grounds for setting aside a judgment on the plea.”). But the superior court permissibly denied relief. [Petitioner] told the court that nobody had forced him to plead guilty, and the record shows no evidence to the contrary. The only concern [Petitioner] expressed during the change-of-plea proceeding was that he receive the stipulated sentence of time served without any additional incarceration or term of probation. On this record, [Petitioner's] claim that he pleaded guilty because he believed he would not receive a fair trial is unconvincing and does not demonstrate that his plea was procured by duress. See Leyva, 241 Ariz. at 525, ¶ 12; see also United States v. Jiminez-Dominguez, 296F.3d 863, 869 (9th Cir. 2002) (“Although it is difficult to probe the highly subjective state of mind of a criminal defendant, the best evidence of his understanding when pleading guilty is found in the record of the [change-of-plea] colloquy”); United States v. Pellerito, 878 F.2d 1535, 1541-42 (1st Cir. 1989) (distinguishing between the defendant's motivation to plead guilty and whether the plea was involuntary because it was the product of duress).(Id. at 164-66)
On February 8, 2022, the court of appeals denied Petitioner's motion for reconsideration. (Id. at 161) Petitioner did not file a petition for review to the Arizona Supreme Court, and on March 7, 2022, the court of appeals issued its mandate. (Id.)
II. PETITIONER'S HABEAS CLAIMS
In his February 2, 2023, Amended Petition, Petitioner raises two grounds for relief. (Doc. 6) In both grounds for relief, Petitioner references his reply filed in support of his PCR petition in the Maricopa County Superior Court, which Petitioner attached to the Amended Petition. (Id. at 8, 9, 15-25) Petitioner's factual allegations from his attached reply in support of his PCR petition are incorporated in the Amended Petition insofar as the factual allegations relate to and support Petitioner's claims alleged in the Amended Petition. See Ross v. Williams, 950 F.3d 1160, 1166 (9th Cir. 2020) (interpreting Federal Rule of Civil Procedure 10(c) to allow consideration of brief attached to habeas petition where brief detailed claims in the petition); Dye v. Hofbauer, 546 U.S. 1, 4 (2005).
In Ground One, Petitioner asserts “Disparate Treatment under the Equal Protection Clause; Issues invalidating the plea (violations within Prosecutorial Misconduct and/or Vindictive Prosecution).” (Doc. 6 at 8) Petitioner asserts that he faced additional charges because of his desire to proceed to trial in other criminal cases previously brought against him. (Id. at 17-20) As part of Ground One, Petitioner alleges that the state wanted to avoid trial, caused law enforcement to “insidiously” stop and search Petitioner's car for substances, and brought the charges against Petitioner in case number CR2016-002031-001 to leverage plea offers. (Id.)
In Ground Two, Petitioner asserts that he received ineffective assistance of counsel because none of his three trial court counsel reviewed all the discovery in his cases. (Id. at 9, 11-13) Petitioner asserts that although he knew the contents of his discovery, his trial court counsel did not review the discovery, thereby denying Petitioner the opportunity to discuss the discovery with his trial court counsel. (Id. at 11-13) Petitioner states that trial court counsel Ernesto Quesada “was on his way off the case as he was receiving the discovery” and “had no reason to discuss any further information with [P]etitioner”; that trial court counsel Jesus Acosta discussed only case number CR2014-133407 with Petitioner; and that trial court counsel Stephen Crawford did not have discovery because Petitioner possessed the discovery instead. (Id. at 22-23) This Report and Recommendation will refer to the above-described portion of Ground Two as Petitioner's Ground Two (a) claim. In Ground Two, Petitioner also argues that the superior court should have held an evidentiary hearing regarding whether his trial court counsel had reviewed the discovery. (Id. at 12) This Report and Recommendation will refer to the above-described portion of Ground Two as Petitioner's Ground Two (b) claim.
In the Amended Petition, Petitioner refers to discovery in CR2014-006097-001, but does not specify whether the discovery in case number CR2016-002031-001 is part of his claim. (Doc. 6)
In their Limited Answer, Respondents assert that Petitioner's Ground One disparate treatment claim and Ground Two (b) evidentiary hearing claim are procedurally defaulted, that Petitioner's Ground One disparate treatment claim is waived due to Petitioner's guilty plea, and that Petitioner's Ground One (a) claim of ineffective assistance of counsel fails on the merits. (Doc. 13 at 12-29) Respondents request that the Court deny a certificate of appealability. (Id. at 29-30)
In reply in support of the Amended Petition, Petitioner asserts that he sufficiently supported his claims that the state discriminated against him by charging him in case number CR2016-002031-001 and that his trial court counsel Ernesto Quesada, Jesus Acosta, and Stephen Crawford in case numbers CR 2014-006097-001 and CR2016-002031-001 did not review discovery. (Doc. 16 at 2-7) Petitioner asserts that if he had discussed the discovery with trial court counsel, he would have chosen to proceed to trial. (Id. at 3-5)
III. PROCEDURAL DEFAULT
In their Limited Answer to the Amended Petition, Respondents assert that Petitioner's Ground One claim of disparate treatment under the Equal Protection Clause and Ground Two (b) claim that the superior court should have held an evidentiary hearing are procedurally defaulted without excuse. (Doc. 13 at 19-23) As set forth below, Respondents are incorrect as to Petitioner's Ground One claim, but Respondents are correct that the Ground Two (b) claim is procedurally defaulted without excuse.
A. Legal Framework of Procedural Default
1. Exhaustion
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O 'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description of “both the operative facts and the federal legal theory on which [a] claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon [the] constitutional claim.” McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, that “all the facts necessary to support the federal claim were before the state courts ... or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Netherland, 518 U.S. at 163; see also McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Fair presentment is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
2. Procedural Default
A corollary to the exhaustion requirement is the “procedural default doctrine.” The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default.
First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. This is called an express procedural bar. An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court 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.” Coleman, 501 U.S. at 735 n.1; Boerckel, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for postconviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 postconviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) (“We have held that Arizona's procedural default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted), rev'd on other grounds, Stewart, 536 U.S. 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who completely fails to attempt to exhaust his state remedies. In Arizona, “ineffective assistance of counsel claims should be raised in postconviction relief proceedings pursuant to rule 32, Arizona Rules of Criminal Procedure.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (quoting State v. Atwood, 171 Ariz. 576 (1992)) (finding that failure to raise ineffective assistance of counsel claims on direct appeal did not bar federal habeas review).
3. Excuse for Procedural Default
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.” Id.
The miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo, 340 F.3d at 882-83. Significantly, “[t]o be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998).).
B. Exhaustion
1. Ground One
In Ground One of the Amended Petition, Petitioner asserts “Disparate Treatment under the Equal Protection Clause; Issues invalidating the plea (violations within Prosecutorial Misconduct and/or Vindictive Prosecution).” (Doc. 6 at 8; Doc. 16 at 2, 7-8) Petitioner raised his Ground One claim in his PCR petition in the superior court. (Doc. 13-1 at 56-60) Respondents conceded that Petitioner raised his Ground One claim in his petition for review to the court of appeals. (Doc. 13 at 19, lines 18-19; see also Doc. 13-1 at 153-59) In their argument, Respondents conflate procedural default and waiver (Doc. 13 at 18-19). Because Petitioner exhausted his Ground One claim in his petition for review to the Arizona Court of Appeals, the claim was exhausted and is not procedurally defaulted. Waiver of Petitioner's Ground One claim by his guilty plea will be addressed in Section IV, below.
2. Ground Two (b)
In Ground Two (b) of the Amended Petition, Petitioner asserts that the superior court should have held an evidentiary hearing regarding whether his trial court counsel had reviewed the discovery in Petitioner's cases. (Doc. 6 at 12)
Petitioner did not raise his Ground Two (b) claim in his petition for review in the court of appeals, where he was required to raise such. Swoopes, 196 F.3d at 1010. Further, although Petitioner asserted in his PCR proceedings in the superior court that he should have been granted an evidentiary hearing regarding discovery, Petitioner did not cite the Constitution or other federal law in connection with his claim that he should have received an evidentiary hearing regarding discovery. Because Petitioner did not provide a federal legal theory on which his claim was based, Petitioner did not fairly present his Ground Two (b) claim to the state courts. See McFadden, 399 F.3d at 999. For these reasons, Petitioner's Ground Two (b) claim was not properly exhausted.
C. Ground Two (b) Is Procedurally Defaulted
Petitioner's Ground Two (b) claim is unexhausted and implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to properly exhaust such claims. See Ariz. R. Crim. P. 33.2(a)(3) (a defendant is precluded from relief pursuant to Rule 33.1(a) that was waived in previous PCR proceedings); Ariz. R. Crim. P. 33.4(b)(3)(A) (claims filed pursuant to Rule 33.1(a) must be filed within 90 days after oral pronouncement of sentence); Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B) (allowing a defendant to assert claims identified in Rule 33.1(b) through (h) “within a reasonable time after discovering the basis for the claim.”). Petitioner does not argue that he is able to return to state court to properly exhaust his Ground Two (b) claim, nor does the record support such an argument. Petitioner's Ground Two (b) claim is therefore procedurally defaulted.
Arizona Rule of Criminal Procedure 33.2(a)(3) provides that PCR relief is precluded on any claim “waived at trial or on appeal, or 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.” (emphasis supplied). The italicized language was added to the rules in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See id. Petitioner's procedurally defaulted claim at issue in this matter does not allege a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by a defendant.
D. Petitioner Fails to Establish Cause and Prejudice or Miscarriage of Justice/Actual Innocence to Excuse the Procedural Default of Ground Two (b)
To excuse the procedural default of Ground Two (b), Petitioner bears the burden of establishing either: (1) both cause and actual prejudice, or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750.
1. Cause and Prejudice
In his Amended Petition and reply in support, Petitioner does not assert that any “objective factor external to the defense” prevented him from asserting his Ground Two (b) claim in state court. Id. at 753. Petitioner has not sufficiently explained his failure to properly present his Ground Two (b) claim during his state court PCR proceedings. Moreover, Petitioner has not shown that he could not raise his Ground Two (b) claim during his PCR proceedings and prior to these habeas proceedings. Indeed, the record reveals that Petitioner had opportunity to present the claim but did not do so.
Even if Petitioner could establish cause to excuse his procedural default of Ground Two (b), Petitioner has not shown that he suffered prejudice or that any alleged constitutional violation “worked to his actual and substantial disadvantage[]” United States v. Frady, 456 U.S. 152, 170 (1982). See also Section V, infra, addressing Ground Two on its merits.
Accordingly, Petitioner has not established cause and prejudice to excuse his procedural default of Amended Petition Ground Two (b).
2. Miscarriage of Justice/Actual Innocence
As set forth above, the miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson, 541 F.3d at 937. To meet this exception to procedural default, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. 324, and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327).
Petitioner does not argue miscarriage of justice or actual innocence in his Amended Petition. To the Amended Petition, Petitioner attached his July 1, 2020, reply in support of his PCR petition in the superior court (Doc. 6 at 15-25) and the superior court's October 27, 2020, order denying Petitioner's motion for reconsideration of the superior court's dismissal of his PCR petition (Id. at 30). Petitioner's attachments are not “new reliable evidence” that would likely prevent a jury from convicting him. Schlup, 513 U.S. at 324. Although Petitioner asserts that he was subjected to disparate treatment and vindictive prosecution and that he was coerced into entering his guilty pleas, Petitioner does not assert factual innocence of the charges to which Petitioner pleaded guilty. A claim of actual innocence requires a petitioner to show factual innocence, as opposed to mere legal insufficiency. Bousley, 523 U.S. at 623. Further, Petitioner pleaded guilty and agreed to the factual bases of his guilty pleas on the record.
Petitioner has not met his burden to establish actual innocence that would excuse his procedural default of Ground Two (b) of the Amended Petition.
IV. AMENDED PETITION GROUND ONE WAS WAIVED BY GUILTY PLEAS
In their Limited Answer to the Amended Petition, Respondents argue that by pleading guilty, Petitioner waived his Ground One claim that he received disparate treatment under the Equal Protection clause. (Doc. 13 at 18-19)
A. Waiver of Constitutional Claims by Pleading Guilty
“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973); see United States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991) (a guilty plea generally waives all claims of a constitutional nature occurring before the plea). Unless the petitioner alleges his plea was involuntary, or improperly induced by ineffective assistance of counsel (“IAC”), a conviction based on a guilty plea may not be challenged in a federal habeas proceeding, “despite various forms of misapprehension under which a defendant might [have] labor[ed].” Lambert v. Blodgett, 393 F.3d 943, 981 n.26 (9th Cir. 2004) (internal marks omitted) (collecting cases). It is also firmly established that a conscious “waiver” is not necessary “with respect to each potential defense relinquished by a plea of guilty.” United States v. Broce, 488 U.S. 563, 569 (1989) (holding that double jeopardy challenge was waived by guilty plea, even if defendant and attorney were unaware of the basis for the challenge at the time of plea).
B. 28 U.S.C. § 2254 Habeas Petition - Merits Standard of Review
On habeas review of claims adjudicated on the merits in a state court proceeding, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of the claim either “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This is a “‘highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). A federal court “looks to the last reasoned state court decision” to make a determination on a claim pursuant to § 2254(d). White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, 584 U.S., 138 S.Ct. 1188, 1192 (2018)).
Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409.
To make a determination pursuant to § 2254(d)(1), the Court first identifies the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
Regarding § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014)). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.
A habeas petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt v. Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301).
C. Discussion
In Ground One, Petitioner asserts that he received disparate treatment under the Equal Protection Clause due to prosecutorial misconduct and vindictive prosecution. (Doc. 6 at 8; Doc. 16 at 2, 6-7) Petitioner has not established that the state courts' adjudication of his Ground One claim as waived was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable evaluation of the facts. 28 U.S.C. § 2254(d).
In providing the last reasoned decision on this issue, the Arizona Court of Appeals stated:
“A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilty and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569 (1989). Given “the admissions inherent” in a guilty plea, id. at 576, a defendant who “voluntarily and knowingly pleads guilty” waives “all non-jurisdictional defenses, defects and irregularities in the proceedings.” State v. Nicholson, 109 Ariz. 6, 8 (1972). Accordingly, a defendant convicted after a plea is limited to challenging “whether the underlying plea was both counseled and voluntary” or whether “on the face of the record the court had no power to enter the conviction or impose the sentence.” Broce, 488 U.S. at 569.
[Petitioner's] claims that the state selectively and vindictively prosecuted him, and that it violated his Fourth Amendment rights, are non-jurisdictional defenses that he waived by pleading guilty. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”); State v. Murphy, 97 Ariz. 14, 15 (1964) (holding that a defendant's guilty plea forecloses challenges to the legality of a search or seizure); State v. Webb, 140 Ariz. 321, 323 (App. 1984) (holding that a vindictive prosecution claim is a non-jurisdictional defense waived by a guilty plea).
A guilty plea does not bar a claim “that counsel's ineffective assistance led
the defendant to make an uninformed decision to accept ... a plea bargain, thereby making his or her decision involuntary.” State v. Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013). To establish such a claim, the defendant must show that counsel's performance “fell below an objective standard of reasonableness” and “there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985) (citation and internal quotation marks omitted). The showing of prejudice requires the defendant to allege “specific facts which would allow a court to meaningfully assess why [counsel's] deficiency was material to the plea decision.” State v. Bowers, 192 Ariz. 419, 425, ¶ 25 (App. 1998).
Here, [Petitioner's] ineffective-assistance claim is based on his conclusory assertion that none of his defense attorneys ever reviewed the discovery in the 2014 assault case. Assuming for the sake of argument that this unsubstantiated claim is correct, it is not colorable because [Petitioner] fails to demonstrate that counsel's alleged incompetence led him to plead guilty rather than proceed to trial. See id. [Petitioner] acknowledges in his petition for post-conviction relief that he knew the contents of the discovery when he decided to plead guilty. When he entered the plea, he confirmed that he had sufficient time to discuss it with his attorney and that the attorney had answered all his questions. He also admitted that he had committed the charged offense. “Such ‘[slolemn declarations in open court carry a strong presumption of verity,' and ‘constitute a formidable barrier' in a subsequent challenge to the validity of the plea.” State v. Leyva, 241 Ariz. 521, 525, ¶ 12 (App. 2017) (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). Because [Petitioner] does not articulate, and the record does not otherwise disclose, how defense counsel's review of the discovery would have altered [Petitioner's] decision to plead guilty, he fails to establish a colorable claim.
[Petitioner] did not waive his claim that he pleaded guilty by reason of duress. See State v. Murray, 101 Ariz. 469, 469 (1966) (“A showing that a plea of guilty was induced by fraud or duress is clearly grounds for setting aside a judgment on the plea.”). But the superior court permissibly denied relief. [Petitioner] told the court that nobody had forced him to plead guilty, and the record shows no evidence to the contrary. The only concern [Petitioner] expressed during the change-of-plea proceeding was that he receive the stipulated sentence of time served without any additional incarceration or term of probation. On this record, [Petitioner's] claim that he pleaded guilty because ne believed he would not receive a fair trial is unconvincing and does not demonstrate that his plea was procured by duress. See Leyva, 241 Ariz. at 525, ¶ 12; see also United States v. Jiminez-Dominguez, 296 F.3d 863, 869 (9th Cir. 2002) (“Although it is difficult to probe the highly subjective state of mind of a criminal defendant, the best evidence of his understanding when pleading guilty is found in the record of the [change-of-plea] colloquy”); United States v. Pellerito, 878 F.2d 1535, 1541-42 (1st Cir. 1989) (distinguishing between the defendant's motivation to plead guilty and whether the plea was involuntary because it was the product of duress).(Doc. 13-1 at 164-66)
Petitioner cannot claim “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett, 411 U.S. at 267. Petitioner “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 771 (1970)].” Id. The record is clear that any vindictive prosecution or prosecutorial misconduct related to the charges against Petitioner in case number CR2016-002031-001 (and even case number CR2014-006097-001) would have occurred prior to Petitioner's entry of a guilty plea in both case numbers CR2014-006097-001 and CR2016-002031-001. Further, Petitioner's Ground One claim does not assert a jurisdictional defect.
Petitioner argues that waiver does not apply because his guilty pleas were neither voluntary nor intelligent and that his trial court counsel provided insufficient advice regarding the plea agreements (see Doc. 6 at 20-24; Doc. 16 at 4-5). Petitioner asserts that the only purpose of the plea agreements executed on June 28, 2017, was for the parties to agree that Petitioner would not receive probation. (Doc. 6 at 20-21) Petitioner further asserts that he did not receive a copy of the plea agreements to review between the change of plea hearing and sentencing, and that Petitioner's trial court counsel did not review all discovery and could not thoroughly discuss the facts of Petitioner's cases, preventing Petitioner from making an informed and intelligent decision to enter the plea agreements. (Id. at 20-24)
However, the superior court record clearly belies Petitioner's assertions, including that the only purpose of the plea agreements was for Petitioner not to receive probation. For example, at Petitioner's change of plea hearing for case numbers CR2014-006097-001 and CR2016-002031-001, Petitioner stated on the court's record that he understood the terms of his plea agreements, that he had discussed the plea agreements with his attorney that he had been afforded enough time to review the plea agreements with his attorney, that his attorney had answered all his questions, that he was not forced into entering his plea agreements, and that he understood that he was giving up certain rights by entering his guilty pleas. (Doc. 13-2 at 142-46, 151-52) Petitioner initialed next to each term of the plea agreements and signed the plea agreements. (Doc. 13-1 at 8-10, 25-27; Doc. 13-2 at 142) Petitioner's plea agreements provided that unless the plea agreements were “rejected by the court or withdrawn by either party, [Petitioner] hereby waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement. By entering this agreement, [Petitioner] further waives and gives up the right to appeal.” (Id. at 9, 26) The superior court found that Petitioner's guilty pleas entered in open court on the record were knowing, voluntary, and intelligent. (Id. at 17, 35)
Further, Petitioner acknowledges in his Amended Petition that he knew the contents of the discovery that counsel allegedly did not review; that he had time to discuss the discovery with his counsel; and that his counsel answered all of Petitioner's questions. (Doc. 6 at 11) Petitioner nevertheless argues that his decision to plead guilty was not informed because his counsel did not know the contents of discovery and could not provide Petitioner an attorney's point of view on the discovery. (Id. at 11-12) Yet, Petitioner does not provide the challenged contents of the discovery, does not assert which questions he would have asked his counsel about the discovery, and does not demonstrate how discussions with counsel about the discovery would have led Petitioner to proceed to trial instead of pleading guilty. Petitioner only states that “counsel could have raised a defense to show the alleged victims could have been shown to be deceitful. Armed with that information petitioner would have taken his chances at a trial where the majority of cases go against witnesses shown to be deceitful.” (Id. at 12-13) In light of Petitioner's in-court, on the record statements during trial court proceedings, including Petitioner's during the changes of plea, Petitioner's assertions in the Amended Petition are inadequate to demonstrate that Petitioner did not make an informed decision to plead guilty. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (defendant's representations during change of plea “constitute a formidable barrier in any subsequent collateral proceedings” and “[s]olemn declarations in open court carry a strong presumption of verity”).
Because Petitioner's Ground One claim alleges the deprivation of constitutional rights occurring prior to Petitioner's entry of his guilty pleas, Petitioner has not established that the state court decision that Petitioner waived Ground One claim was contrary to or an unreasonable application of clearly established federal law. Nor has Petitioner established that the state court decision was based on an unreasonable determination of the facts in light of the evidence. In sum, Petitioner's Ground One claim was waived with Petitioner's knowing, voluntary, and intelligent guilty pleas.
V. MERITS OF AMENDED PETITION GROUND TWO
In Ground Two (a), Petitioner asserts that he received ineffective assistance of counsel because none of his trial court counsel reviewed the entire discovery in his cases, and in Ground Two (b), Petitioner argues that the superior court should have held an evidentiary hearing regarding whether his trial court counsel had reviewed such discovery. (Doc. 6 at 9, 11-13) In their Limited Answer, Respondents argue that Petitioner's Ground Two (a) claim of ineffective assistance of trial court counsel fails on the merits. (Doc. 13 at 23-29) As set forth below, Petitioner's Ground Two (a) and (b) claims fail on the merits.
A. 28 U.S.C. § 2254 - Legal Standard of Review
On habeas review of claims adjudicated on the merits in a state court proceeding, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of the claim either “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This is a “‘highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt.” Woodford, 537 U.S. at 24 (quoting Lindh, 521 U.S. at 333 n.7). A federal court “looks to the last reasoned state court decision” to make a determination on a claim pursuant to § 2254(d). White, 895 F.3d at 665 (citing Wilson, 138 S.Ct. at 1192).
Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409.
To make a determination pursuant to § 2254(d)(1), the Court first identifies the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
Regarding § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340. A “statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood, 558 U.S. at 301. As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor, 366 F.3d at 1000. “This is a daunting standard-one that will be satisfied in relatively few cases.” Id. The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt, 571 U.S. at 18, citing Wood, 558 U.S. at 293, 301.
B. Applicable Law - Ineffective Assistance of Counsel (“IAC”)
Under clearly established federal law on IAC, a petitioner must show that his counsel's performance was both (a) objectively deficient and (b) caused him prejudice. Stricklandv. Washington, 466 U.S. 668, 687 (1984). In federal habeas corpus review, this results in a “doubly deferential” review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in a 28 U.S.C. § 2254 case, deference is due both to defense counsel's performance and to the state court's ruling). A habeas court reviewing an IAC claim must determine “whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). Moreover, “[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 669. When review of the Strickland test is under § 2254(d), “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 562 U.S. at 105. The Court has discretion to determine which Strickland prong to apply first, and the failure to satisfy either prong of the Strickland test obviates the need to consider the other prong. Strickland, 466 U.S. at 697.
C. Ground Two Lacks Merit
In Ground Two (a) of the Amended Petition, Petitioner asserts that his several trial court counsel were ineffective for failing to review all the discovery in Petitioner's cases. (Doc. 6 at 9, 11-13; Doc. 16 at 2-5) Petitioner states that trial court counsel Ernesto Quesada “was on his way off the case as he was receiving the discovery” and “had no reason to discuss any further information with [Petitioner”; that trial court counsel Jesus Acosta discussed only case number CR2014-133407 with Petitioner; and that trial court counsel Stephen Crawford did not have discovery because Petitioner possessed the discovery instead. (Doc. 6 at 22-23; Doc. 16 at 4) Petitioner asserts that because his counsel did not review all discovery, Petitioner was unable to discuss the contents of the discovery with each of his counsel and may have proceeded to trial if he had discussed the discovery with counsel. (Doc. 6 at 11-13) Petitioner asserts that his trial court counsel could have raised a defense that victims or witnesses were deceitful. (Id. at 12-13) Petitioner acknowledges that he knew “the contents of the discovery” and that he “had time to discuss it with his then attorney and that the attorney had answered all of [Petitioner's] questions,” yet asserts that his counsel, particularly trial court counsel Stephen Crawford, nevertheless had not reviewed the contents of the discovery. (Id. at 11; Doc. 16 at 3-5) In Ground Two (b), Petitioner argues that the superior court should have held an evidentiary hearing regarding whether his trial court counsel had reviewed the discovery. (Doc. 6 at 12)
In their Limited Answer, Respondents assert that Petitioner has not established that trial court counsel was deficient because Petitioner has not shown “evidence supporting his allegations, including the specific discovery documents that would have allegedly created questions to discuss with his trial attorney, and fails to state: what the alleged discovery was, what the documents showed, how the discovery allegedly demonstrated the victims were deceitful, and whether the discovery would have led him to reject the plea, or could have resulted in a different plea offer.” (Doc. 13 at 28) Respondents point to Petitioner's acknowledgment that Petitioner knew the contents of discovery and discussed the discovery with his trial court counsel prior to entering his guilty pleas. (Id. at 28-29) Further, because Petitioner received favorable sentences under the terms of the plea agreement compared to the potential sentences if Petitioner proceeded to trial, Respondents assert that Petitioner has not shown that his trial court counsel was deficient or that Petitioner was prejudiced by counsel's performance. (Id. at 29)
To prevail on an IAC claim, Strickland requires that Petitioner show that his trial court counsel's performance was objectively deficient and also caused Petitioner prejudice. 466 U.S. at 687. Because Petitioner pleaded guilty in case numbers CR2014-006097-001 and CR2016-002031-001, to show that his trial court counsel's performance caused him prejudice, Petitioner must show “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, 58-59 (1985).
In providing the last reasoned decision on this issue, the Arizona Court of Appeals stated:
A guilty plea does not bar a claim “that counsel's ineffective assistance led the defendant to make an uninformed decision to accept . . . a plea bargain, thereby making his or her decision involuntary.” State v. Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013). To establish such a claim, the defendant must show that counsel's performance “fell below an objective standard of reasonableness” and “there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985) (citation and internal quotation marks omitted). The showing of prejudice requires the defendant to allege “specific facts which would allow a court to meaningfully assess why [counsel's] deficiency was material to the plea decision.” State v. Bowers, 192 Ariz. 419, 425, ¶ 25 (App. 1998).
Here, [Petitioner's] ineffective-assistance claim is based on his conclusory assertion that none of his defense attorneys ever reviewed the discovery in the 2014 assault case. Assuming for the sake of argument that this unsubstantiated claim is correct, it is not colorable because [Petitioner] fails to demonstrate that counsel's alleged incompetence led him to plead guilty rather than proceed to trial. See id. [Petitioner] acknowledges in his petition for post-conviction relief that he knew the contents of the discovery when he decided to plead guilty. When he entered the plea, he confirmed that he had sufficient time to discuss it with his attorney and that the attorney had answered all his questions. He also admitted that he had committed the charged offense. “Such ‘[slolemn declarations in open court carry a strong presumption of verity,' and ‘constitute a formidable barrier' in a subsequent challenge to the validity of the plea.” State v. Leyva, 241 Ariz. 521, 525, ¶ 12 (App. 2017) (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). Because [Petitioner] does not articulate, and the record does not otherwise disclose, how defense counsel's review of the discovery would have altered [Petitioner's] decision to plead guilty, he fails to establish a colorable claim.(Doc. 13-1 at 165)
As the Arizona Court of Appeals recognized, Petitioner acknowledged that he knew the contents of the discovery, that he had time to discuss any discovery with trial court counsel Stephen Crawford, and that trial court counsel Stephen Crawford answered Petitioner's questions. (See Doc. 6 at 11; Doc. 16 at 3-4) Given the state court record in Petitioner's cases, Petitioner's conclusory assertions after his convictions that he would have proceeded to trial instead of entering his guilty pleas if any of his trial court counsel had reviewed all discovery is insufficient to demonstrate a reasonable probability that he would have chosen to proceed to trial. Petitioner does not present the contents of the alleged discovery that his trial court counsel did not review. In the Amended Petition, without further detail, Petitioner only states that none of his counsel reviewed discovery “which contains purported assailants ‘abuse' over a perpetual period of time and alleged victims and witnesses misbehavior, lieing [ sic ] and the use or threat of law enforcement against purported assailants when not getting their way or something they want.” (Doc. 6 at 22) In his reply in support of the Amended Petition, Petitioner states that a discussion about discovery with trial court counsel “would have raised questions” as to the truthfulness of the victims and witnesses in Petitioner's cases. (Doc. 16 at 5) Yet, Petitioner does not make specific assertions regarding the alleged untruthfulness of victims and witnesses in his cases, nor does he demonstrate how additional discussions with trial court counsel would have affected Petitioner's decision to plead guilty instead of proceeding to trial. Importantly, while represented by trial court counsel Stephen Crawford, Petitioner stated at his change of plea hearing in both cases that his trial court counsel had answered all of Petitioner's questions, and Petitioner's guilty pleas were supported by factual bases to which Petitioner agreed in open court. (Doc. 13-2 at 142, 144)
Moreover, pursuant to the terms of his plea agreements, Petitioner received concurrent, one-year terms of imprisonment with 365 days' credit for time served for each conviction in case numbers CR2014-006097-001 and CR2016-002031-001. Petitioner's sentences pursuant to the plea agreement were considerably less than the potential sentences Petitioner would have faced if convicted at jury trials. (See id. at 9-10, 95-101) Petitioner has not shown a reasonable probability that but for trial court counsel's alleged failure to review all the discovery, he “would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 58-59; see also Reel v. Ryan, 2013 WL 2284988, at *8-9 (D. Ariz. May 22, 2013) (no prejudice where petitioner received favorable sentence under plea and evidence supported guilt).
Petitioner has not shown that the state court's adjudication of his I AC claim was contrary to or an unreasonable application of clearly established federal law, or that the state court decision was an unreasonable determination of the facts. Accordingly, Petitioner's Ground Two (a) claim fails on the merits. Given the failure of Petitioner's Ground Two (a) claim on the state court record, Petitioner's Ground Two (b) claim that the superior court should have held an evidentiary hearing on whether counsel had reviewed all the discovery also fails on the merits.
VI. CONCLUSION
For the reasons set forth above: Petitioner's Ground Two (b) claim is procedurally defaulted without excuse; Petitioner waived his Ground One claim by his knowing, voluntary, and intelligent guilty pleas; and Petitioner's Ground Two fails on the merits. Therefore, it is recommended that the Petition be denied and dismissed with prejudice and that this matter be terminated.
Assuming the recommendations herein are followed in the District Judge's judgment, the undersigned recommends that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, because Petitioner has not “made a substantial showing of the denial of a constitutional right[,]” and because jurists of reason would not find the Court's rejection on constitutional grounds of Petitioner's claims to be “debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE RECOMMENDED that Petitioner Juan M. Tolano's Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 6) be denied and dismissed with prejudice and that this matter be terminated.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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. The parties shall have fourteen days within which to file responses to any 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).