United States District Court, D. Arizona
David G. Campbell United States District Judge
Petitioner objects to the Magistrate Judge’s Report and Recommendation (“R&R”). Doc. 13. The R&R suggests that this Court deny the pro se petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Doc. 12. Specifically, the Magistrate Judge found that Petitioner failed to exhaust his state court remedies under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). The matter is fully briefed, and no party has requested oral argument. For the reasons that follow, the Court will deny the petition for habeas relief.
On August 11, 2010, a grand jury indicted Petitioner on kidnapping, first-degree burglary, theft of a means of transportation, trafficking in stolen property, two counts of misconduct involving weapons, and three counts of armed robbery. Doc. 12 at 2. At the time, Petitioner was on probation, and the state moved to revoke the probation after the indictment was issued. Id.
After he was found competent to stand trial, Petitioner pled guilty on February 18, 2011, to two counts of armed robbery and one count of misconduct involving weapons. Id. The remaining counts were dismissed, and Petitioner was sentenced to concurrent sentences of 21 years on the two armed robbery counts and a concurrent sentence of 2.5 years on misconduct involving weapons. Id. Petitioner received a 5-year sentence for violating his probation, to be served concurrently with the other sentences. Id.
On March 25, 2011, Petitioner filed a motion for post-conviction relief under Arizona Rule 32 challenging his guilty plea and the revocation of his probation. Id. at 2-3. Petitioner’s court-appointed counsel filed a notice that he could raise no colorable claims on Petitioner’s behalf. Id. at 3. Petitioner then filed a pro se motion, and the state conceded that Petitioner was entitled to be resentenced. Id. In his motion, Petitioner raised seven other claims: (1) his right to a speedy trial was violated; (2) the court’s finding that he was competent to stand trial violated due process; (3) he was threatened and coerced by the prosecutor into pleading guilty; (4) the court modified the plea agreement; (5) his plea was not made knowingly, intelligently, and voluntarily; (6) the court failed to set forth the aggravating factors when imposing his sentence; and (7) Maricopa County jail subjected him to mental torture. Id.
On October 16, 2012, the state court partially granted Petitioner’s motion for post-conviction relief, ordered that he be resentenced, and denied his other claims. Id. The court found that because Petitioner pled guilty, he had waived all non-jurisdictional defects and defects occurring prior to the plea, as well as all claims of ineffective assistance of counsel not relating to his plea. Id. As a result, Petitioner was precluded from raising his speedy trial claim, his competency claim, the mental torture claim, and his claim that the court failed to properly consider his pro per motions. Id. at 4. The court also found that Petitioner’s claims that he did not understand his potential sentence and was coerced into pleading guilty were meritless. Id.
On November 5, 2012, Petitioner appealed the trial court’s decision to the Arizona Court of Appeals, which granted review and denied relief on February 25, 2014. Doc. 10-5 at 35-58; 101-04, see also State v. Barrientes, Docket No. 1-CA-CR-12-0677-PRPC (Ariz.Ct.App. Nov. 5, 2012). The Court of Appeals also denied Petitioner’s motion for special action jurisdiction. Doc. 10-5 at 124, 132.
On November 12, 2012, Petitioner was resentenced to the same terms previously imposed. Doc. 12 at 4. Petitioner then filed a second petition for post-conviction relief in September 2013 (Doc. 10-3 at 46-90, Doc. 10-4), which was denied by the trial court in January 2014 (Doc. 10-5 at 32-33). The Arizona Court of Appeals docket indicates that Petitioner has appealed the denial of his second petition, but the matter is still pending. See State v. Barrientes, Docket No. 1-CA-CR-14-0069-PRPC (Ariz.Ct.App. Jan. 27, 2014).
There has been considerable confusion in this case about when and whether Petitioner appealed the denials of his two Rule 32 petitions and when the Arizona Court of Appeals ruled on them. The Magistrate Judge concluded that Petitioner did not appeal the denial of his first petition. Doc. 12 at 4. Respondents contend that Petitioner filed an appeal of the first petition, but assert that “the Court of Appeals did not do anything with the case” because it was improperly appealed. Doc. 14 at 3. The Court’s review of the record suggests that both are incorrect.
Petitioner did appeal the denial of his first Rule 32 motion. The appeal was filed on November 5, 2012, as shown at Doc. 10-1 at 4. The appeal was assigned case number 1-CA-CR-12-0677-PRPC. See State v. Barrientes, Docket No. 1-CA-CR-12-0677-PRPC (Ariz.Ct.App. Nov. 5, 2012). The Arizona Court of Appeals decided this appeal on February 25, 2014, and found that Petitioner had failed to present the petition in the form required by Arizona law. Doc. 10-5 at 101-04. The fact that this decision concerned the first petition and not the second is clear from at least two facts: the decision bore the number of the first appeal (1-CA-CR-12-0677-PRPC), and noted that “[t]he trial court granted relief on a sentencing issue and resentenced Barrientes to the same sentence in both cases, ” a clear reference to the first petition. Id. at 101-02.
Petitioner appealed the trial court’s denial of his second Rule 32 petition on January 27, 2014, and it was assigned appeal number 1-CA-CR-14-0069-PRPC. See State v. Barrientes, Docket No. 1-CA-CR-14-0069-PRPC (Ariz.Ct.App. Jan. 27, 2014). A review of the docket of the Arizona Court of Appeals shows that no decision has been made on this appeal. Id.
The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. See id.; Fed.R.Civ.P. 72(b)(3); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner’s sole objection is that the Magistrate Judge incorrectly found that he failed to ...