CINDY K. JORGENSON, District Judge.
On May 16, 2013, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation, (Doc. 14), in which she recommended denying Petitioner's Petition Under 28 U.S.C. §2254 for a Writ of Habeas Corpus by a Person in State Custody, (Doc. 1), and denying Petitioner's Motion for Evidentiary Hearing. (Doc. 11). Magistrate Judge Bowman advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. §636(b). Petitioner has filed an objection. (Doc. 15). Respondents have not filed a response.
On April 7, 2009, Petitioner was indicted for Aggravated Robbery, Robbery, Attempted Fraudulent Scheme and Artifice, Taking the Identity of Another, and two counts of Forgery, case number CR XXXXXXXX-XXX. (Doc. 7-1, Ex. A). On April 13, 2009, Petitioner was indicted for one count of Armed Robbery, case number CR XXXXXXXX-XXX. (Doc. 7-1, Ex. B). After the indictments were issued, the County Attorney alleged that Petitioner had seven prior convictions, which would enhance Petitioner's sentences. (Doc. 1 at p. 21).
On September 23, 2009, pursuant to two plea agreements, Petitioner pled guilty in Pima County Superior Court to Robbery and Attempted Fraudulent Scheme and Artifice in case number CR XXXXXXXX-XXX and Armed Robbery in case number CR XXXXXXXX-XXX. (Doc. 7-1, Ex. C, D). Petitioner signed both plea agreements. Each plea agreement explicitly provided that "[t]he defendant admits to having previously been convicted of the following: Possession of a Narcotic Controlled Substance in Riverside County Superior Court, Riverside, California." Id. During the change of plea hearing, Petitioner admitted in court that he had previously been convicted of Possession of a Narcotic Controlled Substance in Riverside, California. (Doc. 7-1, Ex. E).
Petitioner's Presentence Report outlined Petitioner's seventeen prior contacts with law enforcement, which included multiple prior felony convictions and Petitioner's contact for Possession of Narcotic Controlled Substance in Riverside, California. (Doc. 1 at pp. 37-40). The Presentence Report reflected that the disposition of the Riverside, California contact was unknown. (Doc. 1 at p. 39). On December 18, 2009, Petitioner was sentenced to a presumptive term of four and a half years incarceration for the Robbery conviction and six and a half years incarceration for the Attempted Fraudulent Scheme conviction, with these sentences to run concurrently. (Doc. 1 at p. 32). Additionally, Petitioner was sentenced to nine and a quarter years incarceration for the Armed Robbery conviction. (Doc. 1 at p. 32-33). Petitioner's sentence for Armed Robbery runs consecutively to his sentence for Robbery, resulting in a total period of incarceration of thirteen and three quarter years. (Doc. 1 at p. 33-34).
Petitioner filed a notice of post-conviction relief pursuant to Ariz.R.Crim.P. 32. Post-conviction counsel was appointed pursuant to Ariz.R.Crim.P. 32.4(c) to file a petition for post-conviction relief. On June 1, 2010, the appointed Rule 32 counsel filed a notice explaining that after a complete and thorough study of the record, he could not find any tenable issue for review. (Doc. 7-1, Ex. F). Petitioner subsequently filed his own petition pro se, in which he argued that his trial and Rule 32 counsel had been ineffective. (Doc. 7-2, Ex. G). Specifically, Petitioner argued that his trial counsel was ineffective because he failed to object to the state's assertion at sentencing that he had five prior felony convictions, failed to present certain mitigating evidence at sentencing, and failed to investigate the prior convictions alleged by the state. Id. According to Petitioner, if trial counsel had investigated his prior convictions, he would have discovered that there was insufficient evidence to find that he had been convicted of Possession of a Narcotic Controlled Substance in Riverside, California. Id. Petitioner further argued that his Rule 32 counsel was ineffective because he failed to argue that there was insufficient evidence to establish that Petitioner had been convicted of the Riverside, California narcotics offense. Id.
The Arizona trial court denied relief on March 1, 2011. (Doc. 1 at pp. 47-51). The trial court concluded that trial counsel was not ineffective for failing to investigate the convictions alleged by the state, including the Riverside, California conviction. The trial court reasoned that because counsel and the court reviewed the plea agreement with Petitioner, which specifically referred to the Riverside, California conviction and Petitioner never claimed that the Riverside, California conviction was improper, there was no evidence that Petitioner's counsel was ineffective for failing to investigate that conviction. (Doc. 1 at p. 49).
The trial court further explained that even if the Riverside, California conviction had been objected to prior to sentencing, the state would have used one of Petitioner's other prior convictions to enhance Petitioner's sentence. Id. The court found that Petitioner had not "established that counsel should have objected to the use of the prior convictions as aggravators, " since the convictions existed in the presentence report and could properly be used as sentence aggravators. Id. at 50. As such, Petitioner could not establish that he was prejudiced by counsel's failure to object. Id. Petitioner's claim regarding counsel's failure to present mitigating evidence was denied because the mitigating evidence asserted by Petitioner was determined to be cumulative and would not have changed his sentence. Finally, the trial court concluded that Petitioner failed to establish that he was prejudiced by the actions of his Rule 32 counsel. Id.
Petitioner sought review of the trial court's ruling by the Arizona Court of Appeals. (Doc. 7-3, Ex. I). The Arizona Court of Appeals explained:
[o]n review [Petitioner] re-urges his claims that trial counsel was ineffective in failing to investigate the validity of the alleged prior convictions and at sentencing and that his Rule 32 counsel was ineffective. We conclude the trial court correctly resolved these claims in a thorough and well-reasoned minute entry, and we therefore adopt the court's order summarily denying [Petitioner's] petition for post-conviction relief. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993)(when trial court has identified and ruled correctly on issues raised in a fashion that will allow any court in the future to understand the resolution, no useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision.').
We write further, however, to amplify the trial court's ruling in one respect. The presentence report stated the disposition of the California charge was [u]known.' Thus, upon receiving the presentence report following [Petitioner's] guilty plea, trial counsel arguably would have had cause to investigate the validity of [Petitioner's] California conviction. Assuming that conviction was, in fact, nonexistent, [Petitioner's] only avenue for relief would have been to seek to withdraw from the plea pursuant to Rule 17.5, Ariz. R. Crim.P. We agree with the trial court's implicit determination such a motion would not have been granted in light of [Petitioner's] extensive criminal history.
Rule 17.5 gives a trial court discretion to permit a party to withdraw form a plea agreement when necessary to correct a manifest injustice.' [Petitioner] was sentenced as a category two repetitive offender pursuant to A.R.S. §13-703(B) and (I). Several of the previous felony convictions listed in [Petitioner's] presentence report similarly could have served to enhance his sentence. See A.R.S. §13-105(22)(defining historical prior felony conviction). [Petitioner] does not assert any of those convictions are invalid, and, based on those convictions, he undoubtedly would have faced an enhanced sentence upon conviction after a trial or pursuant to a new guilty plea. Nor can [Petitioner] reasonably assert his purported misapprehension regarding the California conviction rendered his plea involuntary. The plea agreement plainly provided for enhanced sentences, and we find no material difference between an enhanced sentence based on one historical prior felony conviction rather than another. See §13-703(I). Accordingly, there would have been no manifest injustice' to correct by permitting [Petitioner] to withdraw from the plea. Ariz. R. Crim. P. 17.5; cf. State v. Stevens, 154 Ariz. 510, 515, 744 P.2d 37, 42 (App. 1987)(manifest injustice when parties and the trial court erroneously believed' defendant subject to enhanced sentence and mistake directly impacted defendant's calculation of the acceptability of the plea bargain.').
(Doc. 8-2, Ex. K). Petitioner sought further review by the Arizona Supreme Court, which denied Petitioner's petition for review on February 23, 2012. (Doc. 1 at p. 19). Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254 on August 6, 2012. (Doc. 1). In his Petition, Petitioner raises four grounds for relief. First, he alleges that his state sentences are illegal because they are based on a prior conviction that was never proven; second, he argues that his trial counsel was ineffective because his prior conviction was used improperly to enhance and aggravate his sentence resulting in improper double counting; third, his trial counsel was ineffective because he failed to challenge or investigate his prior California conviction; and fourth, his Rule 32 counsel was ineffective for failing to challenge his prior California conviction. Respondent's filed their Answer on October 17, 2012. (Doc. 7). Petitioner filed a Motion for Evidentiary Hearing on November 21, 2012. (Doc. 11). Petitioner filed his Reply on November 26, 2012. (Doc. 12). Respondent then filed its Opposition to Petitioner's Motion for Evidentiary Hearing on November 29, 2012. (Doc. 13).
On May 16, 2013, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation. (Doc. 14). In her Report and Recommendation, Magistrate Judge Bowman recommended dismissing Petitioner's claim that his state sentences are illegal because they are based on a prior conviction that was never proven and his claim that his trial counsel was ineffective because his prior conviction was used improperly to enhance and aggravate his sentence resulting in improper double counting because these claims are procedurally defaulted. (Doc. 14). Magistrate Judge Bowman further recommended denying on the merits, Petitioner's ...