United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:
Petitioner James Joseph Zanzot, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 16), and Petitioner filed a Reply (Doc. 25).
On June 18, 2008, Petitioner was indicted on one count of burglary in the third degree, a class 4 felony, and 22 counts of voyeurism, class 5 felonies. (Exh. A.) Pursuant to a plea agreement, Petitioner was thereafter convicted in Maricopa County Superior Court, of burglary with sexual motivation and two counts of voyeurism, class 4 felonies and was subsequently sentenced to a cumulative 12.5-year term of imprisonment. (Exhs. A-D.)
Petitioner thereafter filed a "of-right" notice of post-conviction relief ("PCR"). (Exh. E.) Petitioner's appointed counsel filed a notice of completion of PCR review, avowing that, after reviewing the record, she was unable to find any colorable claims for relief. (Exh. F.) Petitioner thereafter filed a pro per PCR petition in the state trial court relief raising the following claims: (1) the state's grand jury proceedings were conducted without Petitioner's presence; (2) the prosecutor engaged in misconduct during the grand jury proceedings by, (a) misrepresenting evidence, and (b) suborning perjury; (3) there was insufficient evidence regarding the burglary count; (4) there was insufficient evidence of sexual motivation; (5) the trial court erred in imposing aggravated and consecutive sentences; (6) because the state failed to present sufficient evidence that the offenses involved a sexual motivation, the trial court erred in requiring Petitioner to register as a sex offender; (7) the plea agreement was invalid because there was an insufficient factual basis to support the burglary and voyeurism charges, defense counsel did not inform Petitioner regarding the consequences of the plea, and the state violated the terms of the plea agreement; (8) the state's DNA testing procedures were flawed; and (9) trial counsel rendered ineffective assistance by failing to, (a) raise an argument regarding prosecutorial misconduct and misrepresentation of evidence, (b) conduct a sufficient pretrial investigation or file motions regard the grand jury, (c) present mitigating factors at sentencing, and (d) challenge the imposition of aggravated and consecutive sentences. (Exh. G.)
On December 3, 2012, the state court dismissed the PCR petition, finding that Petitioner had failed to state a colorable claim for relief. (Exh. J.)
Petitioner thereafter filed a petition for review in the Arizona Court of Appeals raising the following claims: (1) defense counsel rendered ineffective assistance by failing to, (a) challenge a change to the offense date during the change of plea hearing, and (b) adequately convey the consequences of accepting the plea agreement; (2) the prosecutor engaged in misconduct by, (a) amending the dates of the offenses during the change of plea hearing, and (b) violating the terms of the plea agreement during sentencing; (3) the trial court erred in finding that Petitioner knowingly, intelligently, and voluntarily entered into the plea agreement; (4) the trial court erred by imposing consecutive sentences; (5) the trial court erred by imposing aggravated consecutive sentences; and (6) the trial court failed to give Petitioner the correct amount of pre-incarceration credit. (Exh. K.)
On March 18, 2014, the Arizona Court of Appeals granted review, but denied relief. (Exh. M.) The court found that Petitioner had only properly presented two issues for review: (1) a challenge to the grand jury proceedings; and (2) the trial court could not consider his prior convictions as an aggravating factor for sentencing purposes. (Id.) The court, however, rejected the claims finding that: (1) by pleading guilty, Petitioner had waived his right to challenge the grand jury proceedings; and (2) regarding the consideration of Petitioner's prior convictions of aggravating factors, the plea agreement stated that the state would not allege the prior convictions for purposes of enhancement (not aggravation), with the exception of burglary, which Petitioner expressly agreed to plead guilty to with one historical felony conviction for enhancement purposes. (Id.) The court further found that Petitioner's remaining claims were precluded, stating that:
While some of the issues may be similar to issues he presented below, [Petitioner] presents these issues in new contexts he did not present below and/or supports these issues with new arguments he did not present below. A petition for review may not present issues and arguments not first presented to the trial court.
(Id.) Petitioner did not seek review in the Arizona Supreme Court.
On March 16, 2015, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1.) Petitioner raises four grounds for relief. In Ground One, Petitioner alleges that the state breached the plea agreement in violation of the Fifth and Fourteenth Amendments. (Id.) In Ground Two, Petitioner alleges that the prosecutors committed misconduct, in violation of the Fifth and Fourteenth Amendments. (Id.) In Ground Three, Petitioner alleges that defense counsel rendered ineffective assistance by failing to object to the imposition of aggravated and consecutive sentences. (Id.) In Ground Four, Petitioner alleges that the trial court erred when it imposed an aggravated sentence. (Id.)
In their Answer, Respondents contend that Grounds One through Four are procedurally defaulted. As such, Respondents request that the Court deny and dismiss ...