United States District Court, District of Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE: Petitioner Benjamin Mercado Valdez, who is confined in the Arizona State Prison-Kingman, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents have filed an Answer (Doc. 8), and Petitioner has filed a Reply (Docs. 9, 10).
The presentence report provides the following factual background:
On April 8, 2009, [Petitioner] stole a vehicle belonging to Cookson Door Sales. It was located through a tracking device and found to have been at a storage facility. The stolen vehicle was found stripped of its equipment. Police found the contents taken from the vehicle[, ] in addition to multiple other stolen items[, ] inside the storage unit rented by [Petitioner].
(Exh. I at 1).
Petitioner was booked into jail, and the State filed an indictment in the Maricopa County Superior Court charging him with seven counts of theft, class 3 felonies. (Exh. A.) The State later amended the indictment and alleged that Petitioner had six prior convictions for burglary and theft. (Exh. B.)
On July 17, 2009, the prosecutor extended an initial plea offer to Petitioner, which called for Petitioner to plead guilty to one count of theft, with one historical prior conviction, and receive a 10-year prison sentence. (Exh. C at 3-4; Exh. T at 5-6, 18-19.) However, after negotiations by defense counsel and a policy-deviation request, the prosecutor subsequently presented Petitioner with a proposed plea-agreement that would result in a prison sentence ranging from 7-8 years. (Exh. T at 19-20.)
The proposed agreement was communicated to Petitioner a week before a settlement conference that was held on September 18, 2009. (Exh. E at 19-20.) During the conference, the terms from the proposed agreement were explained to Petitioner. (Id. at 5-18.) The court informed Petitioner that he faced a possible 175-year prison sentence if he were convicted on all seven counts in the indictment. (Id. at 6.) Petitioner acknowledged the potential punishment for his offenses, and declared that he intended to plead guilty, but he complained that the proposed sentence of 7-8 years was “a very long sentence.” (Id. at 8) Petitioner, consequently, asked the prosecutor to “lower [the sentence] a little bit more.” (Id. at 11.) The prosecutor refused Petitioner’s request because the proposed agreement already included a special deviation from the State’s policies, resulting in a much shorter sentence than he would have otherwise received. (Id. at 10-12.) The court told Petitioner that the proposed agreement was “a better deal than [it] would have anticipated.” (Id. at 10.) Nonetheless, Petitioner rejected the proposed agreement and indicated that he preferred to have a trial. (Id. at 18.)
Later, before a trial-management conference on September 24, 2009, the State re-extended the proposed agreement to Petitioner, per his request. (Exh. T at 23.) Petitioner then signed the proposed agreement, but he refused “to enter the plea agreement on the record that day.” (Id. at 23.) Despite signing the proposed agreement, Petitioner maintained that he wanted a “better plea agreement” and, as a result, refused to enter into it in open court. (Id. at 23-26.) The State, again, declined Petitioner’s request for a better offer, but it stated that Petitioner could accept the agreement in court later that day if he changed his mind. (Id. at 14.) Petitioner chose not to accept the proposed agreement. (Id. at 15, 25-26.)
Instead, during the trial-management conference, Petitioner told the court that he wanted to hire a different attorney to represent him. (Exh. F at 3-5.) After a discussion off the record, the court asked Petitioner why he wanted a new attorney, and Petitioner responded that he wanted a different legal opinion regarding his case because he did not like the advice that he was receiving. (Id.) The trial court denied Petitioner’s request for a new attorney, but it stated that a new attorney could represent him at trial if that attorney would avow to the court that he or she would be prepared for trial the following week. (Id. at 4-5.) Petitioner never mentioned the proposed agreement during the trial-management conference, nor did he contact defense counsel after the conference adjourned to say that he wanted to enter the agreement on the record. (Exh. F; Exh. T at 14, 23-26, 29-30, 34-35.)
On October 1, 2009, Petitioner decided that he no longer wanted to go to trial, and instead chose to plead guilty because he “felt that he would get more leniency if he pled to the [c]ourt.” (Exh. T at 33.) The court told Petitioner that there was no plea agreement related to his guilty plea, and, as a result, his plea would involve all seven counts that were charged in the indictment. (Exh. G at 4-5.) Petitioner stated that he understood, waived his right to trial, and elected to plead guilty to all seven offenses. (Id. at 4-8; Exh. H.) The State subsequently proved that Petitioner had previously been convicted of six theft-related felonies, and the trial court sentenced him to concurrent, 15-year sentences for all seven convictions. (Exh. J at 32-33, 41-42.)
On December 9, 2009, Petitioner timely filed a notice of his “Rule 32 of-right proceedings” with the superior court. (Exh. K.) The superior court appointed counsel, who later avowed that he was unable to find any colorable claims for relief. (Exhs. L & M.) Petitioner subsequently filed a pro se petition that alleged his trial counsel was ineffective by failing to have the signed, proposed agreement accepted by the trial court. (Exh. O at 5-6.) Petitioner also requested to have counsel appointed to represent him at an evidentiary hearing on the PCR petition. (Exh. R.) Petitioner’s request was granted, and an evidentiary hearing was held on September 13, 2011, when the court heard testimony from the prosecutor, defense attorney, and Petitioner. (Exh. S.)
The prosecutor testified that he initially extended Petitioner the 10-year plea offer but, after negotiations with Petitioner’s counsel, was convinced to offer Petitioner the proposed agreement that would have resulted in a 7-8 year sentence. (Exh. T at 6, 10.) The prosecutor stated that Petitioner signed the proposed agreement on September 24, 2009, but he refused to ...