United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRIDGET S. BADE, Magistrate Judge.
Demetrio Acosta Urtusuastegui (Petitioner) has filed a timely Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents have filed an Answer asserting that Petitioner's claims are either not cognizable on habeas corpus review or are procedurally barred, and that his claims lack merit. (Doc. 7.) Petitioner has not filed a reply in support of his Petition and the time to do so has passed. For the reasons below, the Petition should be denied.
I. Procedural Background
A. Charges, Trial, and Sentencing
On July 23, 2007, Petitioner was indicted in the Maricopa County Superior Court (trial court) on one count of first degree murder, two counts of attempted first degree murder, three counts of kidnapping, one count of possession of marijuana for sale, and one count of misconduct involving weapons. (Doc. 7, Ex. A.) The State also filed a notice of its intent to seek the death penalty. (Doc. 7, Ex. B.)
On November 17, 2010, Petitioner entered into a plea agreement and pleaded no contest to second degree murder, and the State dismissed all other charges. (Doc. 7, Exs. C, D, E.) On January 21, 2011, in accordance with the plea agreement, the trial court sentenced Petitioner an aggravated sentence of twenty-two years' imprisonment. (Doc. 7, Ex. G.)
B. Post-Conviction Proceedings
On March 10, 2011, Petitioner filed a timely notice of post-conviction relief and the trial court appointed post-conviction counsel. (Doc. 7, Exs. H, I.) Post-conviction counsel (PCR counsel) subsequently filed a notice stating that she was unable to find any colorable issue to raise on post-conviction review, and requesting an extension of time for Petitioner to file a pro per petition. (Doc. 7, Ex. J.) Petitioner later filed a petition arguing that: (1) trial counsel "refused to honor" his request to withdraw the no contest plea and have the charges re-instated; (2) he was "misled to believe that the evidence against him was irrefutable and he would rather proceed to trial and make the State prove every element of its case"; (3) and he wanted to withdraw his plea and proceed to trial with a "correct interpreter." (Doc. 7, Ex. K.) On October 25, 2011, the trial court dismissed the petition pursuant to Arizona Rule of Criminal Procedure 32.6(c), explaining the petition contained "mere generalizations and unsubstantiated claims." (Doc. 7, Ex. N.)
Petitioner timely petitioned for review in the Arizona Court of Appeals (the court of appeals or appellate court). (Doc. 7, Ex. O.) On appeal, Petitioner raised essentially the same claims he had raised in his petition for post-conviction relief, but also asserted that the trial court abused its discretion by denying his petition for post-conviction relief, and that because he was a "Mexican national, " he was "not required to know law." ( Id. at 2.) On September 14, 2012, the appellate court denied relief. (Doc. 7, Ex. Q.) The appellate court explained that, as in the trial court, Petitioner "fail[ed] to set forth in any detail how counsel coerced him to accept a plea agreement or how the interpreter's purported difference in dialect affected his understanding of the proceedings." ( Id. at 3.) Additionally, the appellate court noted that the change-of-plea transcript showed that Petitioner affirmed that he understood the proceedings. ( Id. ) Thus, because Petitioner "ha[d] done nothing more than engage in unsupported speculation and attempt to contradict the record before us, " the appellate court concluded that the trial court did not abuse its discretion in denying post-conviction relief. ( Id. at 3-4.)
Petitioner petitioned for review in the Arizona Supreme Court, raising the arguments he made in the court of appeals. (Doc. 7, Ex. R.) On March 26, 2013, the Arizona Supreme Court denied review. (Doc. 7, Ex. S.)
C. Petition for Writ of Habeas Corpus
On October 15, 2013, Petitioner filed the pending Petition raising the following grounds for relief: (1) trial counsel was ineffective for failing to adequately advise him regarding the plea agreement and sentencing guidelines, and post-conviction counsel was ineffective for failing to "file a petition on his behalf" (Ground One(a) and Ground One(b)); and (2) his Sixth and Fourteenth Amendment rights were violated because Petitioner did not knowingly, voluntarily, and intelligently waive his right a jury trial (Ground Two). (Doc. 1 at 4-5.)
In Section II, below, the Court first addresses Petitioner's claim of ineffective assistance of post-conviction counsel, asserted in Ground One(b), and finds that this claim is not cognizable on federal habeas corpus review and, even if it were cognizable, he is not entitled to relief based on his conclusory allegations. In Sections III and IV, the Court sets forth the requirements for exhaustion and finds that Petitioner's ineffective assistance of counsel claims, asserted in Ground One(a), were properly exhausted, but fail on the merits. Finally, in Section V, the Court finds that Petitioner's claims in Ground Two, in which challenges his waiver of a jury trial, were not exhausted and fail on the merits. Therefore, the Court recommends that the Petition be denied.
II. Ground One(b) - Ineffective Assistance of Post-Conviction Counsel
A. Ground One(b) is Not Cognizable on Federal Habeas Corpus Review
In Ground One(b), Petitioner argues that post-conviction counsel was ineffective for refusing "to file a petition on his behalf." (Doc. 1 at 4.) Respondents argue that this claim is not cognizable on habeas corpus review. (Doc. 7 at 14.) A criminal defendant has no federal constitutional right to counsel in state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Absent such a right, "a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman v. Thompson, 501 U.S. 722, 752 (1991); see also Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 1320 (2012) ("There is no constitutional right to an attorney in state post-conviction proceedings); Moran v. McDaniel, 80 F.3d 1261, 1271 (1996) (stating that the Supreme Court has "concluded there is no Sixth Amendment right to effective assistance of counsel during state or federal habeas corpus proceedings").
Moreover, the federal statute providing for habeas corpus review of state convictions prohibits claims based on the ineffectiveness of counsel during "State collateral post-conviction proceedings." 28 U.S.C. § 2254(i) (stating that "[t]he ineffectiveness or incompetence of counsel during Federal or State post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). Because Petitioner had no Sixth Amendment right to counsel for his state post-conviction proceeding, he cannot claim ineffective assistance during those proceedings. Additionally, the statute under which Petitioner brings his habeas petition prohibits him from raising this claim.
B. Petitioner's Conclusory Allegations Are Insufficient
Although there is no Sixth Amendment right to effective assistance of post-conviction counsel, Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005), a criminal defendant is entitled to effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 396 (1985) (holding that the Sixth Amendment right to the effective assistance of counsel applies to the first appeal of right).
Because Petitioner was convicted pursuant to a plea, he waived his right to a direct appeal under Arizona law. See Ariz. Rev. Stat. § 13-4033(B). However, he retained the right to seek collateral review pursuant to Rule 32. See Ariz. R. Crim. P. 32.1 and 32.4. Consequently, his first, and only, post-conviction proceeding was a Rule 32 "of-right" proceeding, which the Ninth Circuit has recognized as a "form of direct review." See Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007) (concluding "that Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A)."). Accordingly, Petitioner arguably had the right to the effective assistance of counsel in his Rule 32 of-right proceeding. See Ramon v. Ryan, 2010 WL 3564819, at *11 (D. Ariz. Jul. 23, 2010) (citing Evitts for the proposition that a defendant has a right to the effective assistance of counsel in a Rule-32 of right proceeding in Arizona).
The Court, however, need not resolve this issue because, even if Petitioner's claim of ineffective assistance of PCR counsel were cognizable on § 2254 review, he is not entitled to relief on that claim. Petitioner's claim of ineffective assistance of PCR counsel consists of the statement that "Petitioner requested counsel to file a petition on his behalf, counsel of record refused, " without reference to any facts or other explanation. (Doc. 1 at 4.) Petitioner's "conclusory suggestions that his [post-conviction] counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation." See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (affirming district court's denial of habeas corpus relief based on its conclusion that a petitioner's "bald assertions of ineffective assistance" did not entitle him to relief). Accordingly, Petitioner's claim alleging the ineffective assistance of PCR counsel should be denied.
III. Federal Habeas Corpus Review
Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary opportunity, ' the prisoner must fairly present' his claim in each appropriate state court... thereby alerting that court to the federal nature of the claim"); Castille v. Peoples, 489 U.S. 346, 349 (1989) (same). "A claim has been fairly presented' if the petitioner has described both the operative facts and the federal legal theory on which his claim is based." Baldwin, 541 U.S. at 33. A "state prisoner does not fairly present' a claim to a state court if that court must read beyond a petition or brief... that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. at 31-32. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, .. (2) through the proper vehicle, ... and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
B. Procedural Bar
The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also require federal courts to respect state procedural bars to review of a habeas petitioner's claims. See Coleman, 501 at 731-32. Pursuant to these principles, a habeas petitioner's claims may be precluded from federal review in two situations.
First, a claim may be procedurally defaulted and barred from federal habeas corpus review when a petitioner failed to present his federal claims to the state court, but returning to state court would be "futile" because the state court's procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). If no state remedies are currently available, a claim is technically exhausted, but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1.
Second, a claim may be procedurally barred when a petitioner raised a claim in state court, but the state court found the claim barred on state procedural grounds. See Beard v. Kindler, 558 U.S. 53 (2009). "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claim has deprived the state courts of an opportunity to address those claims in the first instance." Coleman, 501 U.S. at 731-32. In this situation, federal habeas corpus review is precluded if the state court opinion relies "on a state-law ground 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). A state procedural ruling is "independent" if the application of the bar does not depend on an antecedent ruling on the merits of the federal claim. See Stewart v. Smith, 536 U.S. 856, 860 (2002); Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985). A state court's application of the procedural bar is "adequate" if it is "strictly or regularly followed." See Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). If the state court occasionally excuses non-compliance with a procedural rule, that does not render its procedural bar inadequate. See Dugger v. Adams, 489 U.S. 401, 410-12 n.6 (1989). "The independent and ...