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Berrones v. Ryan

United States District Court, D. Arizona

July 20, 2015

Francisco Alberto Berrones, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

REPORT AND RECOMMENDATION

LESLIE A. BOWMAN, Magistrate Judge.

Pending before the court is a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254, filed on January 15, 2015, by Francisco Alberto Berrones, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1)

Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for report and recommendation.

The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the petition. Trial counsel was not ineffective in his handling of Berrones's change of plea. Alleged errors that occurred prior to his change of plea cannot be the basis for habeas relief.

Summary of the Case

Berrones pleaded guilty, on the fourth day of trial, to "two counts of sale and/or transfer of a narcotic drug, three counts of possession of a narcotic drug for sale, and one count of possession of drug paraphernalia." (Doc. 16-1, p. 3) He was sentenced to concurrent prison terms, the longest of which was a presumptive term of 9.25 years. Id.

Berrones filed a notice of appeal, which was construed by the trial court as a notice of post-conviction relief. (Doc. 16-1, p. 10) His post-conviction relief proceeding, however, did not proceed smoothly. All told, three different attorneys separately reviewed the record, each concluding there were no meritorious issues to be raised. (Doc. 16-1, pp. 10-11) Berrones filed a petition pro se on January 17, 2013. (Doc. 16-1, p. 11) The trial court denied the petition ruling that trial counsel was not ineffective in his handling of Berrones's change of plea and Berrones himself was competent to enter a plea of guilty. (Doc. 16-1, p. 12)

Berrones appealed arguing (1) trial counsel was ineffective for (a) failing to seek the exclusion of evidence on 4th Amendment grounds (b) failing to investigate a violation of his 6th Amendment rights, (c) failing to adequately impeach a witness based on his inconsistent statements, (d) failing to investigate potential evidence tampering, (e) failing to move for a mental exam to show he was not competent to stand trial or for use as mitigating evidence at sentencing, (f) failing to request a mitigation hearing, and (g) providing him with erroneous advice and encouraging him to plead guilty because Berrones was out of money and (2) his trial should have been severed from his codefendant's. (Doc. 16-1, pp. 4-5) The Arizona Court of Appeals granted review but denied relief on July 15, 2014. (Doc. 16-1, p. 2)

On January 15, 2015, Berrones filed the pending petition for writ of habeas corpus. (Doc. 1) He claims (1) trial counsel was ineffective for (a) "failure to obtain psychological evaluation, " (b) "failure to contest tampered evidence, " (c) "failure to contest perjured testimony, " (d) "conflict of interest for lack of payment, " (e) "plea bargain not reduced to writing nor fully explained, " and (f) "failure to move for mitigation hearing, " (2) the police engaged in misconduct during their investigation, (3) Detective Miller gave false testimony at trial, (4) evidence introduced at trial had been tampered with, (5) the prosecution committed misconduct by tampering with evidence, delaying discovery, and allowing false testimony to be presented at trial, (6) counsel was ineffective at sentencing and he was confused about the content of the plea agreement, (7) his trial should have been severed from his codefendant's, and (8) his post-conviction relief attorneys were ineffective for failing to secure a complete record. (Doc. 1)

In their answer, the respondents argue Claim (8) is procedurally defaulted as well as all claims that do not pertain to the voluntariness of his guilty plea. (Doc. 16, pp. 5-6) They argue the remaining ineffective assistance of counsel (IAC) claims should be denied on the merits. (Doc. 16) Berrones filed a reply on June 18, 2015. (Doc. 17)

The court finds all claims alleging error that occurred prior to Berrones's guilty plea are not cognizable. The court addresses the remainder of Berrones's claims on the merits. The court does not reach the respondents' procedural default arguments.

Discussion: Cognizability

Claims (1)(b), (1)(c), (2), (3), (4), (5), and (7) allege errors that occurred before Berrones pleaded guilty. These errors are not cognizable in habeas corpus.

"[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608 (1973). "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the ...


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