United States District Court, D. Arizona
BERNARDO P. VELASCO, Magistrate Judge.
On December 16, 2013, Jose Alfredo Peralta, ("Petitioner"), an inmate confined in the Arizona State Prison Complex, Kaibab Unit, in Winslow, Arizona, filed through counsel a Petition for Writ of Habeas Corpus by a person in state custody, pursuant to title 28, U.S.C. § 2254. (Doc. 1.) Before this Court are the Petition, with accompanying appendix, Respondents' Answer with accompanying exhibits (Doc. 12), and Petitioner's Reply (Doc. 18).
In accordance with 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. (Docs. 11 & 12.)
For the reasons discussed below, the Magistrate denies the Petition and dismisses this case in its entirety.
I. Factual and Procedural Background
A. Trial Court Proceedings
Petitioner was indicted in Arizona Superior Court, Pima County, cause number CR 20010421, on one count of attempted armed robbery and attempted aggravated robbery, one count of burglary in the first degree, four counts of aggravated assault with a deadly weapon, and four counts of aggravated assault of a minor under fifteen. (App 1, Indictment.) The appellate court summarized the facts of the case as follows:
Late one night, Peralta and another man knocked on the door of a one-bedroom house where S. lived with his girlfriend, her niece, and four children. Peralta pointed a gun at S., demanding to know who had "jacked [his] cousin." After S. denied knowing what Peralta was talking about, Peralta pointed the gun at the children and threatened to shoot them. S., his girlfriend, and the four children fled to the bathroom and locked themselves inside it. Peralta ordered S. to come out and began kicking in the bathroom door, threatening to shoot through it. After another associate outside yelled the "cops" were coming, Peralta ran out of the house and fled. He was apprehended shortly thereafter.
(Ex. A at 2.)
Following a jury trial conducted in Petitioner's absence, Petitioner was convicted of burglary, three counts of aggravated assault, and four counts of aggravated assault on a minor under the age of fifteen. ( See Ex. A at 1-2, Ex. D, Reporter's Transcript ("R.T."), 08/20/01 at 2-6.) Petitioner was apprehended in March, 2005 ( see Ex. P at 1), and, on May 11, 2005, the trial court sentenced Petitioner and imposed presumptive concurrent prison terms except on the counts involving the minors, for which it imposed consecutive prison terms of seventeen years for each, without the possibility of early release under the dangerous crimes against children statute, A.R.S. § 13-604.01 for a total sentence of 78.5-years' imprisonment. (Ex. A, at 1-2; Ex. F, R.T. 05/11/05 at 6-7; App. 1 Minute Entry 05/11/05.)
B. Direct Appeal
Petitioner, through counsel, timely filed an appeal, arguing that the trial court had committed fundamental error by sentencing him under the Dangerous Crimes Against Children statute, arguing that the jury should have, but did not expressly find, that he had "targeted" the child victims for sentencing purposes under the statute. (Ex. G.) The appellate court found the claim legally meritless because targeted conduct was inherent in the convictions for intentional assault, i.e., intentional assault and "targeted" assault were synonymous concepts. (Ex. A, at 3-5.) On December 12, 2006, the Arizona Supreme Court denied a petition for review of the appellate court's decision. ( See Ex. J.)
C. Petition for Post-Conviction Relief
On May 25, 2006, Petitioner filed a notice of post-conviction relief. (Ex. K.) On July 31, 2007, Petitioner, through counsel, filed a petition for post-conviction relief (PCR) asserting that he was deprived of his state and federal constitutional rights to the effective assistance of counsel because trial counsel advised him to leave the country prior to trial without advising Petitioner he had the right to confront witnesses against him, and appellate counsel failed to raise the issue of trial counsel's ineffectiveness on appeal. (Ex. L, at 2.) Petitioner filed an affidavit stating that he had spoken to counsel the morning of trial, and that counsel told him he "should abscond to Mexico if possible" because he "faced certain conviction." (Ex. L, Ex. 1 "Peralta Affidavit".) Petitioner also avowed that local relatives had heard this advice and urged him to follow it. Id.
The trial court denied the petition, making several findings. (Ex. P.) First, the trial court found "overwhelming evidence in the record showing that trial counsel did not, in fact, advise the Petitioner to abscond from trial" including an affidavit from trial counsel, as well as the evidence contained in the record from the trial and sentencing, which demonstrated that counsel informed the court that he had phoned Petitioner the morning of trial and told him to appear for trial. (Ex. P at 3.) Additionally, the trial court noted that after Petitioner was apprehended he never informed anyone that he fled the country on the advice of counsel, that he told a pretrial services representative that he failed to appear for trial because a relative in Mexico had died, and later told a presentence report writer that he had been too scared to appear for trial. (Id. ) The court found no need to address Petitioner's assertion that counsel was unaware that A.R.S. § 13-604.01 required the State to prove that Petitioner had "targeted" the child victims in this case, and that it was this failure to know the law that led him to advise the Petitioner to abscond, because the Court found no evidence that Petitioner was advised to flee, thus there was no need to address these particular facts. (Id. at 3, n.2.) Finally, the trial court found no need to address Petitioner's claims of prejudice because the court found that counsel's performance was not deficient. The trial court further found that Petitioner's claim that appellate counsel was ineffective failed because it lacked merit and because the effectiveness of trial counsel could not be challenged on direct appeal. (Id. at 4.) Finding no colorable claim, the trial court summarily dismissed the petition. (Id. at 4.)
Petitioner moved for a rehearing, arguing that the contradictory affidavits regarding whether counsel advised Petitioner to abscond warranted an evidentiary hearing. (Ex. Q) The trial court denied Petitioner's motion, and affirmed its earlier ruling. (Ex. R.) In a petition for review to the Arizona Court of Appeals, Petitioner argued that the trial court abused its discretion in denying Petitioner an evidentiary hearing. (Ex. S.) The state conceded the error, and the appellate court remanded the case for further proceedings, including, upon a finding of a colorable claim of prejudice, an evidentiary hearing. (Ex. T.)
On September 9, 2009, the trial court noted that, as to prejudice, Petitioner had indicated "on multiple occasions that he would have testified if given the chance." (Ex. U.) The trial court found it necessary to set an evidentiary hearing to address both counsel's performance and whether, if counsel's performance was deficient, Petitioner suffered any prejudice as a result. (Id. ) Following an evidentiary hearing, the trial court considered the testimony at the evidentiary hearing, the credibility of the witnesses including their memories and the consistency of their testimony. (Ex. O, at 107.) The trial court found that, pursuant to the Strickland  test, trial counsel was not ineffective, that is "he didn't fall below the standard of the community, and that even the alleged ineffectiveness, had it existed... would not have prejudiced [Petitioner]." (Id.; ) (Ex. O; see also Ex. V, at 2.) The trial court affirmed its previous order and denied the petition for post-conviction relief. (Ex. V, at 2.)
Petitioner, through counsel, filed a petition for review from the trial court's denial of PCR relief in the court of appeals. (Ex. W.) Petitioner argued, generally, that the trial court improperly ignored the weight of the evidence, and the credibility of the witnesses when deciding whether counsel advised Petitioner to flee to another country, and the court failed to apply clearly established law regarding counsel's responsibility to ensure his client was aware of his right to testify at trial. (Ex. W at 8.)
The appellate court first addressed Petitioner's claim that trial counsel was ineffective in failing to advise him "he had the right to testify about not targeting the children, " thereby failing to discuss the possibility of an inconsistent defense that Petitioner had not committed the charged offenses, but if he had, he had not targeted children. (Ex. X at 3.) The appellate court described trial counsel's testimony, though lacking in specific recollection, that Petitioner "would have gone through... impeachment with prior felony convictions, and [whether to testify] would have been [Peralta's] decision." (Ex. X at 4.) Counsel further explained that "he had not believed an inconsistent defense or a defense specific to the dangerous crimes against children charges was possible "[u]nder the facts of the case." (Id. ) The appellate court, citing Strickland, found that the Petitioner presented no evidence that counsel's performance in this regard fell below prevailing professional norms, and therefore, could not say that the trial court abused its discretion in rejecting this claim. (Id. ) The appellate court also refused to ...