United States District Court, D. Arizona
REPORT AND RECOMMENDATION
JACQUELINE M. RATEAU, Magistrate Judge.
Pending before the Court is Steven Nietos's Amended Petition for Writ of Habeas Corpus (Doc. 11) filed pursuant to 28 U.S.C. § 2254. In accordance with the Rules of Practice of the United States District Court for the District of Arizona and 28 U.S.C. § 636(b)(1), this matter was referred to the Magistrate Judge for report and recommendation. As explained below, the Magistrate Judge recommends that the District Court, after an independent review of the record, dismiss the Petition with prejudice.
On October 31, 2012, after a two-day jury trial, Nietos was found guilty of sale and/or transfer of a narcotic drug (cocaine base). Ex. A. On December 3, 2012, the trial court sentenced Nietos to serve 17.75 years in prison. Ex. B. The court stated that the "sentence is comprised of the aggravated sentence of 15.75 years, and an additional 2.0 years because the offense was committed while the defendant was on parole." Ex. B.
On direct appeal, Nietos argued that (1) the trial court had erroneously imposed an additional two years' imprisonment based on the finding that Nietos was on parole when he committed the offense, and (2) that the 17.75 year sentence violated constituted cruel and unusual punishment under the Eighth Amendment. Ex. D. The State agreed with Nietos's first argument, that the matter should be remanded for resentencing, and argued, inter alia, that the Eighth Amendment claim was therefore moot. Ex. E. In a Memorandum Decision filed on August 21, 2013, the Arizona Court of Appeals agreed with Nietos and the State that the trial court had erred in concluding that Nietos's parole status at the time of his offense required the trial court to add two years to his sentence. Ex. F. The Court of Appeals vacated the sentence and remanded for resentencing, and therefore found that Nietos's argument that the 17.75 year sentence violated the Eighth Amendment was moot, noting that Nietos had not argued that his sentence, absent the two-year enhancement, would constitute cruel and unusual punishment. Ex. F. Nietos did not seek review by the Arizona Supreme Court and the mandate issued on October 10, 2013. Ex. G.
On December 19, 2013, the trial court resentenced Nietos to 15.75 years in prison. Ex. H. In its Minute Entry Order, the trial court erroneously stated that Nietos, who had been convicted after a jury trial, had waived his right to a trial and that the determination of guilt was "based upon a plea of guilty." Ex. H.
Through counsel, Nietos filed a Notice of Appeal. Ex. I. Apparently misled by the trial court's misstatement that the determination of guilt was based on a guilty plea, the Court of Appeals issued an Order on February 5, 2014, stating: "It appearing to the court that this appeal is taken from the entry of a plea of guilty or no contest in a non-capital case... and such appeal not being permitted, Ariz. R. Crim. P. 17.1(e)... [Nietos] may, within ten days, show why this appeal should not be dismissed, and if no showing is made, the appeal will be dismissed." Ex. J. Nietos did not respond to the Court of Appeals' February 5, 2014 Order, and on March 12, 2014, the Court of Appeals dismissed the direct appeal. Ex. K. Nietos filed nothing more and the mandate issued on May 7, 2014. Ex. L.
On February 21, 2014, Nietos, through counsel, filed a Notice of Post-Conviction Relief in which he requested the appointment of counsel. Ex. M. The trial court did not issue any orders regarding the notice and Nietos did not file anything further in that action.
Nietos commenced this action with the filing of his original petition on March 3, 2014 (Doc. 1). He subsequently filed the now pending amended petition on October 6, 2014. (Doc. 11). Nietos raises four grounds for relief in the amended petition. In Ground One, he claims that sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment and in violation of state law. In Ground Two, he claims that he was drunk at the time of the offense and that his counsel was ineffective. In Ground Three, he claims that his prior convictions were minor, that he has learning disabilities and mental health issues, that he has an alcohol and drug problem and that his counsel was ineffective for failing to file a motion to suppress illegally obtained evidence. In Ground Four, he alleges that the State alleged and the trial court found that he was on parole when he committed the present offense. Amended Petition, pp. 6-9.
A. Grounds Two, Three and Four are not cognizable.
1. Grounds Two and Three
Grounds Two and Three of the Amended Petition appear to raise claims of ineffective assistance of trial counsel. In both claims, Nietos provides general references to the law applicable to claims of ineffective assistance of counsel, including references to the Sixth Amendment and Strickland v. Washington, 466 U.S. 668 (1984). Additionally, in Ground Two, Nietos offers his version of the events that led to arrest and indicates that, if convicted, "he faces up to thirty-five years, " and states that "he was drunk at the time of the offense." Amended Petition, p. 7. In Ground Three, he adds that:
Mr. Nietos[s] priors were minor and he also has learning disabilities and mental health issues and has had problems with drugs and alcohol his whole life particularly when he is off of his medication. Mr. Nietos [has not] been ...