United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Pending before the Court are Petitioner Victor Lira's petition for writ of habeas corpus (Doc. 1), United States Magistrate Judge James Metcalf's Report and Recommendation ("R&R") (Doc. 16), and Petitioner's objections to the R&R (Doc. 17). The R&R recommends that the Court deny the petition, and, if the Court adopts the R&R findings, that a certificate of appealability be denied. Doc. 16 at 32. The Court will accept the R&R with slight modifications, deny the petition, and deny the certificate of appealability.
In 2005, Petitioner was involved in a knife fight. He fatally cut the victim and then drove away in the victim's car with her purse and cash. Doc. 16 at 1-2. Petitioner was charged in Pinal County Superior Court with first-degree murder, armed robbery, and theft. On September 13, 2007, he was indicted in a second indictment on charges of second-degree murder, automobile theft, and armed robbery. Id. at 2. The two indictments were consolidated. Id. Petitioner entered into a plea agreement with the state in which he agreed to plead guilty to manslaughter. Id. On April 8, 2008, the plea was accepted and Petitioner was sentenced to 19 years in prison. Id.
On October 1, 2013, Petitioner, through his counsel, filed a petition for writ of habeas corpus on the following two grounds: (1) insufficient factual basis for the plea, and (2) ineffective trial counsel.
II. Legal Standard.
A party may file specific, written objections to an R&R within ten days of being served with a copy the R&R. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1).
Petitioner objects to the R&R's recommendations that (1) Petitioner's insufficient factual basis claim should be denied for lack of merit; (2) Petitioner's ineffective assistance of counsel claim should be denied for lack of merit; and (3) Petitioner should not be granted a certificate of appealability. Doc. 17 at 1.
A. Insufficient Factual Basis.
Petitioner objects to the R&R's finding that a factual basis was not required because he did not protest his innocence. Doc. 17 at 4. "[T]he due process clause does not impose on a state court the duty to establish a factual basis for a guilty plea absent special circumstances." Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985); see also Loftis v. Almager, 704 F.3d 645, 648 (9th Cir. 2012) ("habeas courts have held that, unless a plea is accompanied by protestations of innocence or other special circumstances, ' the Constitution does not require state judges to find a factual basis"). A special circumstance, such as a "defendant's protestation of innocence, " may "impose on a state court the constitutional duty to make inquiry and to determine if there is a factual basis for the plea." Id. "When a defendant pleads guilty or no contest without claiming innocence or otherwise making statements calling into question the voluntariness of his plea... the finding of a factual basis is not essential to voluntariness." Loftis, 704 F.3d at 650.
During his change of plea hearing, Petitioner responded to the court's question of whether his cut led to the victim's ultimate death by saying: "[i]t's never been - they never established that." Id. Petitioner contends that he thereby "expressed his belief that he was not responsible for the victim's death." Doc. 17 at 6. The R&R found, however, that "Petitioner merely equivocated on whether the prosecution had established' that he was the cause of death, he did not assert that he in fact was not." Doc. 16 at 15. The Court agrees that Petitioner's assertion was not a protestation of innocence.
Petitioner contends that he attempted to "unequivocally express his innocence, " but he was "cut off by his own counsel." Doc. 17 at 6. The record does not support this contention. When Petitioner's counsel stated that "there's every reason to believe that it was this cut or more than one cut that did lead to her death, " the Court asked whether Petitioner was satisfied by the investigation conducted by his attorney. He responded "[y]es." Doc. 16 at 14. Because "it is the defendant's duty to assert innocence, " and Petitioner did not do so, the state court did not need to find a factual basis for the plea. Id. at 15; Orman v. Cain, 228 F.3d 616, 621 (5th Cir. 2000).
Petitioner also objects to the R&R's finding that he did not assert that the state court's decision was "unsupported by sufficient evidence." Doc. 16 at 6. Pursuant to 28 U.S.C. § 2254(d)(2), "[a]n application for a writ of habeas corpus... shall not be granted... unless the adjudication of the claim.... 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." When a petitioner makes a challenge based on an unreasonable determination of the facts, the ...