United States District Court, D. Arizona
Alfredo Camargo, Petitioner, Pro se, TUCSON, AZ.
For Charles L Ryan, Attorney General of the State of Arizona, Respondents: David Andrew Simpson, LEAD ATTORNEY, Office of the Attorney General - Phoenix, Phoenix, AZ.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS
James F. Metcalf, United States Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, filed a First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 2, 2014 (Doc. 6). On August 1, 2014 Respondents filed their Answer (Doc. 14). Petitioner filed a Reply on August 15, 2014 (Doc. 15).
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
The Presentence Investigation reflected the following summary from police reports:
On July 11, 2007, the defendant, armed with a handgun, kidnapped [YM] from inside the garage of her residence. The defendant forced her inside an awaiting vehicle that was being driven by another suspect. The suspects drove in [a] North bound direction and subsequently stopped in the parking lot of a business complex. When they exited the vehicle, [YM] called 9-1-1. [YM] exited the vehicle when she observed a police officer drive by, and she reported what had happened to her. Police chased the suspects, but only apprehended the defendant with the assistance of a K9 police dog. The handgun used in the kidnapping was recovered near by, which officers observed the defendant throw as he fled on foot. A search of the suspect's vehicle revealed a rifle, a scarf, gloves, tape, and ammunition.
When interviewed, [YM] stated she, her husband [AM}, and her three nieces had just arrived to their home, and they were in the process of closing the garage when the suspect opened the other garage door and stated, " Where is Marquis?" When she stated she did not know a Marquis, the suspected grabbed her by the hand and forced her into a vehicle that was parked in front of her residence. While they were driving, the defendant gave her a cell phone, and the person on the other end asked where Marquis was, and if she was his sister. She indicated she did not know who Marquis was and that she was not related to him. The defendant took the phone back and told the driver to stop in the parking lot where both suspects exited from the vehicle. [YM] stated she feared for her life and believed she might never see her family again.
(Exhibit B, Present. Invest. At 1.) (Exhibits to the Answer, Doc. 14, are referenced herein as " Exhibit .")
B. PROCEEDINGS AT TRIAL
On July 18, 2007, Petitioner was indicted in Maricopa County Superior Court on charges of burglary, aggravated assault (two counts, one for YM and one for YM's husband, AM), kidnapping, and weapons misconduct. (Exhibit A, Indictment.)
Counsel was appointed, and the case proceeded through a series of failed settlement conferences and plea negotiations, with Petitioner seeking to have new counsel appointed because of perceptions that trial counsel was attempting to bully him into taking a plea offer, and failing to adequately investigate the case and prepare for trial. Counsel consistently responded that the promising avenues of investigation had been pursued and that he had indeed advised his client to accept the favorable plea offers. The final plea offer included a prison sentence cap of 15 years, but was rejected ( See Exhibit C, Mot. Dismiss Counsel; Exhibit D, R.T. 11/13/07; Exhibit CC, R.T. 2/11/08; Exhibit E, Mot. Dismiss Counsel; and Exhibit F, R.T. 3/20/08.)
Change of Plea - On April 8, 2008, Petitioner appeared for trial, but asked to change his plea to a plea of guilty to the charges. (Exhibit I, R.T. 4/8/08 at 1-8.) The trial court reviewed the charges and the potential sentences, as well as allegations of prior convictions, and commission while on probation. Petitioner admitted the prior convictions and that he was on probation. (Id. at 8-10.) Counsel provided a factual basis, with which Petitioner agreed. (Id. at 10-16.) The plea was accepted and Petitioner was found guilty of the offenses and the matter was set for sentencing. (Id. at 16-19.)
Sentencing -- On May 30, 2008, Petitioner appeared for sentencing, which was continued to and completed on July 22, 2008. (Exhibit DD, R.T. 5/30/08; Exhibit J, R.T. 7/22/08.) Petitioner was sentenced to 25 years in prison, followed by community supervision. (Id. at 25; Exhibit H, Amend. Order Conf.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner did not file a direct appeal. (Amend. Petition, Doc. 6 at 2.)
Moreover, as a pleading Arizona defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
D. PROCEEDINGS ON POST-CONVICTION RELIEF
First PCR Proceeding - On August 16, 2008, Petitioner filed a Notice of Post-Conviction Relief (Exhibit K). Counsel was appointed who ultimately filed a Notice of Completion of Review (Exhibit L), evidencing an inability to find an issue for review.
On August 11, 2009, Petitioner filed his PCR Petition (Exhibit M), arguing that his rights to counsel had been denied when his request for new counsel was denied and because he was required to proceed with counsel under a breakdown in communication, and his right to counsel on appeal was denied when PCR counsel failed to find an issue for review. The state responded (Exhibit N) that any challenge to Petitioner's right to pre-conviction counsel was waived by Petitioner's guilty plea, and that Petitioner had no right to counsel in his PCR Proceeding. The PCR Court summarily dismissed the Petition " [f]or the reasons stated in the Response to the Petition." (Exhibit P, Order 7/7/10.)
On July 26, 2010, Petitioner filed, through counsel, a motion for a 30 day extension of time to seek reconsideration or review. (Exhibit Q, Motion.) On the same date, Petitioner filed a pro per Motion to Extend, seeking an extension through September 30, 2010 (Exhibit S). On July 28, 2010, the PCR court summarily granted " defense counsel's Request for Extension of Time." (Exhibit R, Order 7/28/10, emphasis added.)
On August 9, 2010, Petitioner submitted a petition for review to the Arizona Supreme Court. That filing was rejected on August 10, 2010 as properly submitted only to the Arizona Court of Appeals. (Exhibit EE, at Notice 8/10/10.)
On August 30, 2010, Petitioner filed a petition for review with the Arizona Court of Appeals. (Exhibit EE.) ( See Exhibit T, Order 9/3/10 at 1.) The petition was dated August 24, 2010. (Exhibit EE, Petition at 3.) On September 3, 2010 the Arizona Court of Appeals denied the Petition as untimely (Exhibit T).
Second PCR Proceeding --
On September 30, 2010, Petitioner filed his second Notice of Post-Conviction Relief (Exhibit U). On October 25, 2010, the PCR court summarily dismissed the proceeding as untimely. (Exhibit V, Order 10/25/10.)
On January 18, 2011, Petitioner filed a Petition for Review with the Arizona Court of Appeals (Exhibit W). On December 4, 2012, the Arizona Court of Appeals summarily denied review. (Exhibit Z, Order 12/4/12.)
On January 14, 2013, Petitioner filed a Petition for Review with the Arizona Supreme Court (Exhibit AA). On March 27, 2013, the Arizona Supreme Court summarily denied review. (Exhibit BB, Order 3/27/13.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petitioner commenced the current proceeding by filing his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on December 6, 2013 (Doc. 1). On March 12, 2014, the Court dismissed that Petition with leave to amend as improperly challenging the denial of his second PCR petition, rather than his conviction.
On April 2, 2014, Petitioner filed his First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 6). Petitioner's Petition asserts the following three grounds for relief:
In Ground One, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated by the " constructive denial of the right to counsel." Petitioner asserts that the trial court constructively denied him the right to counsel when it denied his motion for change of counsel, in which Petitioner explained that he had an irreconcilable conflict with his defense counsel.
In Ground Two, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated because Petitioner was denied effective assistance of post-conviction relief counsel. Specifically, Petitioner alleges that his post-conviction relief counsel was ineffective for failing to raise the trial court's constructive denial of Petitioner's right to counsel in a Rule 32 Petition.
In Ground Three, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated by the actions of counsel as described in Grounds One and Two.
(Order 5/5/14, Doc. 7 at 2.) Service and a response was ordered on May 5, 2014. (Id.)
On August 1, 2014, Respondents
filed their Response (" Answer") (Doc. 14). Respondents argue the Petition is
untimely, Ground 1 is procedurally defaulted, and ...