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Frasquillo v. Ryan

United States District Court, D. Arizona

September 5, 2014

Carlos Alejandro Frasquillo, Petitioner,
Charles L. Ryan, et al. Respondents.


BRUCE G. MacDONALD, Magistrate Judge.

Currently pending before the Court is Petitioner Carlos A. Frasquillo's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody ("Petition") (Doc. 1) and Motion for Status of Case (Doc. 14). Respondents have filed an Answer to Petitioner for Writ of Habeas Corpus ("Answer") (Doc. 10) and Petitioner has filed a Reply to the Attorney General's Response for Writ of Habeas Corpus (Doc. 11).


The Arizona Superior Court, Pima County stated the facts[1] as follows:

[O]n April 16, 2008, ... the Petitioner was fleeing from a police officer. The Petitioner's license was suspended, and it was later discovered that he had a metabolite of marijuana in his blood. During the chase, the Petitioner raced around oncoming traffic at speeds exceeding 100 miles per hour and drove in oncoming lanes and over blind hills. The Petitioner forced vehicles off the road and caused a collision that resulted in an injury to Stephanie Parraz that caused her to lose her unborn child.

Answer (Doc. 10), In Chambers Ruling, re: Petition for Post Conviction Relief 11/29/2010 (Exh. "B") at 1.

A jury convicted Carlos A. Frasquillo of "two counts of aggravated assault, one count of aggravated driving with an illegal drug or metabolite in his system while his driver license was suspended (DUI), one count of manslaughter, and various other charges." Answer (Doc. 10), Arizona Court of Appeals Mem. Decision 4/7/2011 (Exh. "C") at 2. Petitioner was sentenced "to 10.5 years for Manslaughter, 7.5 years for each count of Aggravated Assault, 2.5 years for Aggravated Driving Under the Influence/Drug or Metabolite, 2.5 years for Criminal Damage, 1.5 years for Fleeing from Law Enforcement, and 2.5 years for each count of Endangerment." Answer (Doc. 10), Exh. "B" at 1. "The Manslaughter sentence was to run consecutive to the Aggravated Assault sentences, which would run concurrent to each other, and the Aggravated Driving Under the Influence/Drug or Metabolite sentence was to run consecutive to each of the Manslaughter and Aggravated Assault sentences." Id. "The endangerment sentences would each run concurrent to each other but consecutive to the above groupings." Id. at 1-2. "The Criminal Damage and Fleeing from Law Enforcement sentences would run concurrent to every other sentence." Id. at 2.

A. Direct Appeal

Petitioner appealed his convictions to the Arizona Court of Appeals, raising the single claim that the trial court erred in allowing the State to show an "emotionally charged video" at sentencing. Answer (Doc. 10), Appellant's Opening Brief (Exh. "A") at 14.

On November 27, 2009, the Arizona Court of Appeals affirmed Petitioner's convictions. See Petition (Doc. 1), Arizona Court of Appeals Mem. Decision 11/27/2009 (Exh. "F"). The Arizona Court of Appeals found that Petitioner had not fulfilled his "duty to see that the record before [the court] contains the material to which [he] take[s] exception.'" Petition (Doc. 1), Exh. "F" at 5 (citations omitted) (2d and 3d alterations in original). The court declined to "speculate on the contents of the videotape presented during the sentencing hearing and therefore affirm Frasquillo's convictions and sentences." Id.

Petitioner did not file a petition for review with the Arizona Supreme Court.

B. Post-Conviction Relief Proceeding

On September 30, 2010, Petitioner filed his petition for post-conviction relief. Petition (Doc. 1) at 12. Petitioner claimed, inter alia, that 1) the state court's order that the aggravated DUI sentence run consecutively to the manslaughter sentences violated A.R.S. § 13-116 and his state and federal rights against double punishment; and 2) Petitioner was denied his Sixth Amendment right to effective assistance of counsel when his trial and appellate attorneys failed to challenge the state court's sentencing order. Petition (Doc. 1) at 13-14.

On November 29, 2010, the trial court dismissed Petitioner's post-conviction relief petition. See Answer (Doc. 10), Exh. "B." The court noted that pursuant to Missouri v. Hunter, 459 U.S. 359, 366 (1983), "the Double Jeopardy Clause is only implicated if the legislature and the Arizona Supreme Court crafted unconstitutional statues and rules." Answer (Doc. 10), Exh. "B" at 2. The state court went on to analyze Petitioner's claim regarding consecutive sentences in light of A.R.S. § 13-116 and the test delineated by the Arizona Supreme Court in State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989). Answer (Doc. 10), Exh. "B" at 3. The trial court concluded that "Petitioner did not receive double punishment for the same acts." Id. at 4. Moreover, his "commission of Manslaughter and Aggravated Assault [were] different acts from his commission of Aggravated Driving Under the Influence/Drug or Metabolite[, ]" and therefore the consecutive sentences were proper. Id.

The court additionally held that Petitioner's claim of ineffective assistance of trial and appellate counsel failed because the court "properly imposed consecutive sentences on the Petitioner[, ] [and] [t]herefore, the Petitioner cannot establish that he suffered prejudice as a result of his counsels' actions or lack thereof." Id. at 5. As such, Petitioner "failed to establish the second prong" under Strickland v. Washington, 466 U.S. 668, 687 (1984), and his ineffective assistance of counsel claim was unsustainable. Id. Accordingly, the trial court summarily dismissed Petitioner's PCR petition. See id.

Petitioner filed a petition for review by the Arizona Court of Appeals. On April 7, 2011, the Arizona Court of Appeals granted review, but denied relief. Answer (Doc. 10), Exh. "C." Upon review of the trial court's minute entry, the court of appeals analyzed Petitioner's claim pursuant to A.R.S. § 13-116 and State v. Gordon, supra . Id. at 2-4. The court "[t]herefore conclude[d] Frasquillo's conduct did not constitute a single act and thus the trial court's imposition of consecutive sentences did not violate § 13-116." Id. at 6. As such, the court further concluded that Petitioner had "failed to state a colorable claim for relief" with regard to both the consecutive sentences and the alleged ineffective assistance of counsel. See Answer (Doc. 10), Exh. "C." Petitioner did not seek review with the Arizona Supreme Court.

C. The Instant Habeas Proceeding

On August 1, 2011, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner claims four (4) grounds for relief. First, Petitioner asserts a claim for "[i]naffective assistance of counsel at every critical stage, in violation of the 6th Amendment to the United States Constitution and it's [sic] Arizona counterpart." Petition (Doc. 1) at 6. Second, Petitioner asserts "prosecutorial misconduct in violation of ethical rules of professional conduct." Id. at 7. Third, Petitioner claims "Due Process violations, [which] caused fundamental errors that's [sic] reflected by the record." Id. at 8. Fourth, Petitioner asserts a "5th Amendment infraction, not to incriminate oneself or be subjected to multiple punishments by double counting aggravating factors at sentencing." Id. at 9. Respondents filed their Answer to Petition for Writ of Habeas Corpus (Doc. 10), and Petitioner replied (Doc. 11).


A. In General

The federal courts shall "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. " 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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.

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, "[t]he statute's design is to further the principles of comity, finality, and federalism.'" Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential "for evaluating state-court rulings, [and] which demands that state-court decisions be given the benefit of the doubt." Pinholster, 131 S.Ct. at 1398 (citations and internal quotation marks omitted).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must "presume the correctness of state courts' factual findings unless applicants rebut this presumption with clear and convincing evidence.'" Schriro v. Landrigen, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at ___, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). ...

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