United States District Court, D. Arizona
BERNARDO P. VELASCO, Magistrate Judge.
On February 22, 2013, Petitioner, Daniel Logan Tapia, confined in the Arizona State Prison Complex - Yuma, filed a pro se Petition for Writ of Habeas Corpus pursuant to Title 28, U.S.C. § 2254. (Doc. 1) Respondents have filed an answer to the petition ("Answer") with exhibits A through G attached. (Doc. 9). Petitioner did not file a reply.
In accordance with the provisions of Title 28, U.S.C. § 636(c)(1), all parties consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 14.)
For the reasons discussed below the Court denies the Petition and dismisses this case with prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2011, a grand jury indicted Petitioner on five drug related charges for offenses committed in August and September, 2011. Ex. B. Petitioner and trial counsel appeared in court on January 10, 2012 for a pretrial conference, at which time Petitioner's counsel informed the court that here had been a plea offer and requested that the Court proceed with a Donald  hearing. Ex. C. Consequently, counsel for the State explained the terms of the offer and the "exposure" to Petitioner if he accepted the plea agreement. Id. The Court addressed Petitioner regarding the plea offer and the range of sentencing and requirement that a fine be imposed. Id. The Court further addressed Petitioner regarding the consequences of going to trial and the range of sentencing if Petitioner went to trial and lost. Id. Petitioner affirmed his understanding of the offer. Id.
On January 23, 2012, Petitioner accepted the State's offer and entered a plea of guilty to the knowing sale of methamphetamine. (Exs. D, E.) In exchange, the State dismissed four additional drug-related charges. (Exs. B, D.) On February 21, the trial court imposed a 9-year flat time sentence, as specified by the plea agreement. (Exs. D, F.) Petitioner acknowledged that he received a copy of the Notice of Rights of Review after Conviction but did not file anything in the state courts challenging his conviction or sentence. See Ex. G and Petition, at 5-7.
Petitioner's habeas corpus petition raises two grounds in support of his request for habeas relief:
(1) Petitioner was denied effective assistance of counsel in violation of the Sixth Amendment; and
(2) Petitioner's Fourth Amendment rights were violated when evidence from an illegally monitored phone was used against him and when he was wrongfully identified as the person being monitored.
Respondents argue that the Petitioner has procedurally defaulted his claims by failing to raise them in the state courts, and any return to state court to raise them now would be futile. Answer at 6-7.
A. The petition is timely.
A one year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of ...