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Albeno v. Ryan

United States District Court, D. Arizona

February 18, 2014

Nelson Alejandro Flores Albeno, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

MARK E. ASPEY, Magistrate Judge.

TO THE HONORABLE G. MURRAY SNOW:

Petitioner, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 on or about June 24, 2013. Respondents filed a Limited Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 12) on January 6, 2014. Any reply to the answer to the petition was due February 4, 2014.

I Procedural History

A grand jury indictment returned in Yuma County

Superior Court on October 5, 2006, charged Petitioner with two counts of kidnapping (Counts 1 and 2); one count of aggravated assault (Count 3); and one count of unlawful flight from pursuing law enforcement (Count 4). See Answer, Exh. B. In essence, the indictment alleged that on September 27, 2006, Petitioner kidnapped and held hostage a victim under the age of 15 (the victim was born in 1991), assaulted her with a knife, and fled from a pursuing law enforcement vehicle. Id., Exh. B.

Petitioner entered into a written plea agreement with regard to the charges against him on January 31, 2008. Id., Exh. C. In the plea agreement Petitioner agreed to plead guilty to Count 3, aggravated assault, a class two felony and dangerous crime against a child. Id., Exh. C. The plea agreement did not provide for a specific length of the sentence, but recited that the crime carried a presumptive sentence of 17 years, a minimum sentence of 10 years, and a maximum sentence of 24 years. Id., Exh. C.

During the change of plea hearing conducted January 31, 2008, Petitioner was examined by the state trial judge with the aide of a court interpreter. Id., Exh. D. The trial court ascertained that Petitioner was satisfied with his counsel's representation. The trial court found that the plea had been knowingly, voluntarily and intelligently made and that Petitioner understood the rights and privileges he was giving up by voluntarily pleading guilty. Id., Exh. D. The court further found that Petitioner had not been subjected to force or promised anything to enter into the plea, and that there was a factual basis for the guilty plea. Id., Exh. D.

On April 15, 2008, again with the aide of a court interpreter, the court held a mitigation hearing where Petitioner's counsel presented mitigating factors and closing argument. Id., Exh. E. On April 17, 2008, again employing a court interpreter, Petitioner was sentenced to the presumptive term of 17 years imprisonment pursuant to his conviction for aggravated assault, and given credit for 568 days of presentence incarceration credit. Id., Exh. F & Exh. G. At that time Petitioner received his notice of rights of review, in English and Spanish. Id., Exh. H.

Petitioner initiated a timely action for state post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Id., Exh. I. On June 1, 2009, Petitioner's appointed counsel filed a notice indicating he could find no colorable claim to raise on Petitioner's behalf. Id., Exh. J. On June 22, 2009, the state trial court ordered Petitioner's counsel to provide the record to Petitioner and permitted Petitioner to file a supplemental pleading by August 6, 2009, "urging any and all claims which he wants considered by the court." Id., Exh. K. On August 13, 2009, after Petitioner did not file a supplemental pleading, the court dismissed Petitioner's Rule 32 action. Id., Exh. L.

On February 10, 2010, Petitioner filed a pleading in his Rule 32 action alleging that his counsel was ineffective at sentencing for failing to present testimony about the severe abuse and frequent beatings inflicted on Petitioner by his grandparents, and for failing to present hospital documents about serious injury to his head, which he asserted would have supported a neurological evaluation of him and also would have supported the imposition of a mitigated sentence. Id., Exh. M. Petitioner also claimed that his counsel was ineffective at trial for failing to file a Rule 11 motion and for failing to investigate his case. Id., Exh. M.

The state trial court summarily dismissed Petitioner's pro se pleading on February 10, 2010, finding that the notice was untimely and that Petitioner "failed to state the specific reasons as to why his claim based on newly discovered evidence was not filed in a timely manner." Id., Exh. N.

On March 4, 2010, Petitioner filed a motion for reconsideration of the state trial court's order dismissing his "Rule 32 Petition, " asserting essentially the same claims raised in his pleading dated February 10, 2010. Id., Exh. O. On March 10, 2010, the state trial court denied Petitioner's motion for reconsideration and affirmed its previous order dismissing Petitioner's Rule 32 action. The trial court also concluded:

(1) Defendant was examined by two psychiatrists, Dr. Potts and Dr. Johnson, to determine defendant's mental status at the time of the offense. Specifically, defendant was examined to determine if there were any grounds for defendant to enter a guilty but insane plea. Both experts found the defendant was legally sane at the time of the offense; (2) Defendant was also examined by psychiatrist Dr. Johnson to determine if he was competent to stand trial pursuant to Rule 11, Ariz. R. Crim. Proc. Dr. Johnson determined that defendant was competent to stand trial; and (3) Evidence regarding mitigating circumstances was previously presented to the Court at the April 15, 2008, Mitigation Hearing. Thereafter, defendant was sentenced to a presumptive prison term of 17 years.

Id., Exh. P.

The trial court further found:

As to the untimeliness of defendant's Petition, the Court notes the defendant was sentenced April 17, 2008. Defendant filed a Notice of Post-conviction Relief on May 28, 2008. Counsel was appointed on June 2, 2008. A Notice of Completion was filed by defendant's counsel on June 1, 2009, stating that defendant's counsel was unable to discover any colorable claims to raise in defendant's Rule 32 Proceeding. Defendant was granted until August 6, 2009, to file a Pro Per Petition. Defendant failed to file a Petition by August 6, 2009. Thereafter, On February 10, 2010, defendant filed a Notice of Post-Conviction Relief. As noted in the Court's February ...

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