United States District Court, D. Arizona
HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
MICHELLE H. BUMS UNITED STATES MAGISTRATE JUDGE
Petitioner Manuel Contreras-Galdean, an inmate currently incarcerated in the Arizona State Prison, in Winslow, Arizona, has filed a pro se Petition for a Writ of Habeas Corpus (hereinafter “habeas petition”) pursuant to 28 U.S.C. §2254 (Doc. 1). Respondents have filed an Answer (Doc. 11), and Petitioner has filed a Reply and Memorandum of Points and Authorities in Support of Reply (Docs. 16, 17). Petitioner raises two claims in his Petition: (1) trial counsel was ineffective in telling Petitioner that he could back out of the plea agreement after signing it, and (2) trial counsel was ineffective for failing to object to the sentencing court’s consideration of aggravating factors not found by a jury. (Doc. 1 at 6-7, 12-21.) Respondents assert that ground one of Petitioner’s habeas petition lacks merit, and ground two is procedurally barred. (Doc. 11.)
On November 24, 2008, Petitioner was indicted by an Arizona grand jury on one count of Manslaughter, a class 2 dangerous felony, and one count of Aggravated Assault, a class 3 dangerous felony. The charges stemmed from an auto accident that killed one person, and seriously injured another. Petitioner ultimately agreed to plead guilty, and in doing so, he admitted the following facts:
On November 15, 2008, in Maricopa County, [Petitioner] was driving east down Guadalupe Road preparing to take a left turn on Sossaman. [Petitioner] took the left turn failing to yield to oncoming traffic, which resulted in a traffic accident. The driver of that vehicle was Matthew Tracy, who sustained a fractured left rib. And Matthew Tracy’s sister, Kelly Tracy, was the passenger. She passed away due to her injuries.
Within three hours of driving, [Petitioner]’s blood was taken. The BAC came back at a .192. . . .[D]riving with an alcohol concentration of that degree and failing to yield while taking the left-hand turn is reckless. Those reckless actions caused the death of Kelly Tracy and the cracked left rib of Mr. Matthew Tracy.
(Exh. B at 17-18.)
Petitioner entered into a plea agreement on October 2, 2009, in which he agreed to plead guilty to the Manslaughter count as charged, and to the Aggravated Assault charge as amended to a class 3 non-dangerous offense. (Exh. C.) In the plea agreement, Petitioner agreed to be sentenced to 10.5 to 14 years in prison on the Manslaughter count, and a consecutive sentence of probation on the Aggravated Assault count. (Id. at 1) Petitioner waived and gave up any objection to any sentence imposed consistent with his plea agreement, gave up his right to appeal, and gave up his right to have a jury to determine any fact used to impose a sentence within the 10.5 to 14 years agreed to. (Id. at 1-2) Petitioner initialed each paragraph of his plea agreement and signed at the end, agreeing that he had approved all of the paragraphs in the agreement. (Id. at 1-3) Court interpreter SR Loos also signed the agreement at the end. (Id. at 3.)
Petitioner appeared before the trial court on October 6, 2009, to change his plea. (Exh. B.) Court interpreter Scott Loos was present to translate from English to Spanish for Petitioner, and Petitioner acknowledged that he had no difficulty understanding Mr. Loos. (Id. at 4.) During the plea colloquy, the court asked Petitioner if anyone made “any promises to [him] that are not written down, ” and whether or not anyone had “forced or threatened [Petitioner] in any way to get [him] to plead guilty.” To each question Petitioner answered “no.” (Exh. B at 6-7.) The court advised Petitioner that he was free to back out of the agreement if he had any second thoughts before entering his guilty plea. (Id. at 14.) More specifically, the court warned that:
[I]f I ask a question that scares the heck out of you, and I will give you 30 seconds to talk to your lawyer, and if he can’t satisfy you with his response that everything is o.k., you could say: Time out, Judge. Stop. We’re not finishing this. . . .
[I]n about three pages I’m going to say the plea was accepted and entered of record. When I say that. . .assuming that everything is fine and we get to that point, when I say those words, that’s when this thing drives into concrete. From that point on, you cannot back out of the plea agreement. You understand that?
(Id. at 14.)
Petitioner replied “Yes.” (Id.) The court explained there was one exception to this rule where Petitioner could later have the plea agreement rescinded if “something went wrong in the plea bargaining process and that as a result of whatever that was that went wrong you are being. . .subjected to an injustice.” (Id.) Petitioner also acknowledged that his attorney had read and explained the plea agreement to him, that he had initialed and signed the plea agreement, and that he understood it. (Id. at 5-6.) Petitioner indicated that he understood the charges he was pleading guilty to and understood he would be sentenced to between 10.5 and 14 years in prison. (Id. at 6-7.) Before the proceedings concluded, once again the court asked Petitioner if anyone had forced or threatened him in any way to plead guilty, and once again Petitioner said “no.” (Id. at 17.)
A month later Petitioner filed a Motion to Change Counsel, claiming that a “major communication barrier” existed between him and his counsel, that his counsel had told Petitioner that he had no choice but to sign the plea agreement, and that “when [Petitioner] went back to court [he] could refuse it after being signed.” (Exh. D at 1-2.) Petitioner claimed his counsel never gave him “all the paperwork including the police report, ” and requested that the court appoint new counsel. (Id., at 2-3.) Petitioner also claimed that he resisted signing the plea agreement “in the first place, ” and indicated his desire to “withdraw [his] guilty plea.” (Id. at 3.)
At a status hearing before the court on February 10, 2009, Petitioner was represented by new counsel, who advised the court that, after consulting with Petitioner and reviewing with him the transcript of the change of plea proceeding, that he did “not have enough legal basis to file [a motion to withdraw from the guilty plea].” (Exh. E at 4.) Petitioner’s counsel also indicated that, in any event, he did not feel it was in Petitioner’s best interest to withdraw. (Id.) The court allowed Petitioner to present his own “argument for the record which forms the basis, at least in [Petitioner’s] mind, for withdrawing from the plea agreement.” (Id. at 9.) In response, Petitioner stated that “many things have not been brought to light, . . .that the other attorney never showed me the discovery or anything, . . . [that] he never gave it to me until I pled guilty.” (Id. at 12.) Petitioner then stated that he had asked for the paperwork/discovery some time before his ...