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Arvizu v. Ryan

United States District Court, D. Arizona

February 10, 2016

Jose Luis Arvizu, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald United States Magistrate Judge

Currently pending before the Court is Petitioner Jose Luis Arvizu’s pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 15). Petitioner did not file a Reply. The Petition is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, [1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

I. FACTUAL AND PROCEDURAL BACKGROUND

Tucson Police Department (“TPD”) Officer Valerie Berg testified that on November 7, 2006 she was working as an undercover narcotics officer. Trial Tr. 11/27/2007 (Doc. 15-7) 128:4-134:18. Officer Berg further testified that she was introduced to Patricia Loya through a confidential informant, and made her first buy directly from Ms. Loya on August 8, 2006. Id. at 132:19-133:3. Officer Berg testified that on November 7, 2006, she placed a telephone call to Ms. Loya to tell her that she wanted to purchase two ounces of methamphetamine. Id. at 140:8-20, 179:17-24. Officer Berg further testified that she spoke with Ms. Loya and was directed to Ms. Loya’s apartment. Id. at 141:14-142:8. Officer Berg testified that she drove to Ms. Loya’s apartment, parked her vehicle, and observed Ms. Loya’s daughter, Angélica Ramirez going up the stairs to the second floor balcony. Id. Officer Berg further testified that Angélica motioned for her to come up to the apartment. Trial Tr. 11/27/2007 (Doc. 15-7) 143:6-22, 181:4-15. After Officer Berg went to the apartment, Ms. Loya informed her that they needed to meet the person, so Officer Berg, Ms. Loya, and Angélica returned to Officer Berg’s vehicle. Id. Officer Berg testified that she drove with Ms. Loya and Angélica to an apartment off of Country Club and Fifth Street. Id. at 146:11- 147:10. During the drive Ms. Loya and Angélica both used Officer Berg’s phone to try and contact the source. Id. Once they were in the apartment parking lot, Angélica used Officer Berg’s phone, asked for Jose, and told the person that they were waiting, and hung up. Id. at 151:1-13. Officer Berg testified that she gave Ms. Loya $2, 000.00, $1, 800.00 for the drugs and $200 for her. Id. at 151:21-152:16, 184:22-185:17. Officer Berg testified that Ms. Loya put the money in her purse, got out of her car and into a Dodge Neon, then returned in less than a minute or minute and a half, and handed Officer Berg three baggies of methamphetamine. Id. at 147:24-148:11, 153:16-154:16, 186:10- 19. Officer Berg further testified that she had audio and video recording equipment recording the November 7, 2006 encounter with Ms. Loya and Angélica. Id. at 144:9-20.

Officer Cardwell, who worked for TPD on November 7, 2006, testified that he was assigned to perform surveillance of undercover Officer Berg and whoever she was meeting with. Trial Tr. 11/27/2007 (Doc. 15-7) 162:8-22. Officer Cardwell testified that he took photographs of the meet at the Country Club Apartments on November 7, 2006. Id. at 162:23-163:1. Officer Cardwell further testified regarding photographs from that encounter showing Officer Berg’s vehicle, Ms. Loya exiting her vehicle and getting into a Dodge Neon, Ms. Loya returning to Officer Berg’s vehicle, and then two male subjects exiting the Dodge Neon after the transaction was completed. Id. at 163:2-167:22. Officer Cardwell identified one of the males who exited the Dodge Neon as Defendant Jose Arvizu. Id. 167:8-22.

Patricia Loya testified that on November 7, 2006, she accompanied the undercover officer and her daughter Angélica to an apartment complex at Country Club and Speedway to buy drugs from Defendant Jose Arvizu. Trial Tr. 11/28/2007 (Doc. 15-8) 41:7-42:23. Ms. Loya testified that she got out of the undercover officer’s vehicle and got in the car with Jose Arvizu and another unknown individual. Id. at 43:5-46:25. Ms. Loya testified that she got in the back seat and Jose Arvizu was in the front driver’s seat. Id. Ms. Loya further testified that she bought drugs from Jose Arvizu that day and had previously, as well. Id. at 47:1-20. Ms. Loya testified that the drugs she purchased from Jose Arvizu were to be sold to the undercover officer. Id. at 49:1-50:16.

Drug Enforcement Administration (“DEA”) Special Agent (“SA”) Richard Kivi testified regarding the wiretap that had been placed on Patricia Loya’s cellular telephone. Trial Tr. 11/28/2007 (Docs. 15-8 & 15-9) 103:4-112:12. SA Kivi testified that initially, he analyzed Ms. Loya’s cellular telephone records and obtained a warrant to install a pen register on that line. Trial Tr. 11/28/2007 (Doc. 15-9) 108:16-109:14. SA Kivi further testified that there were a significant number of phone calls between Ms. Loya’s cellular telephone and the telephone subscribed to by Jose Arvizu. Id. SA Kivi compared the subscriber account information with Jose Arvizu’s motor vehicle records and found a match. Id. at 109:19-110:21. SA Kivi also testified that the net weight of methamphetamine purchased on November 7, 2006 was 54.4 grams. Id. at 111:7- 112:12.

Petitioner was charged with one count of conspiracy to possess for sale, transport for sale, offer to transport for sale, sell, transfer or offer to sell or transfer dangerous drugs and one count of unlawful transport for sale or offer to transport for sale or sell, transfer or offer to sell or transfer a dangerous drug, methamphetamine, in violation of Arizona law. Trial Tr. 11/28/2007 (Doc. 15-7) 109:23-21; see also Answer (Doc. 15), Ariz. Superior Ct., Pima County, Minute Entry 11/29/2007 (Exh. “A”) at ¶ 1. On November 29, 2007, a jury found Petitioner guilty of both counts. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Minute Entry 11/29/2007 (Exh. “A”) at 1-2. On December 21, 2007, Petitioner was sentenced to the presumptive term of five (5) years imprisonment for the conspiracy count and the presumptive term of ten (10) years imprisonment for the unlawful transport and/or transfer count to run concurrently. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 12/21/2007 (Exh. “B”) at 2-3.

A. Direct Appeal

On September 16, 2008, Petitioner filed a Petition for a Delayed Appeal Pursuant to Rule 32.1(f) with the trial court. Answer (Doc. 15), Pet. for a Delayed Appeal 9/16/2008 (Exh. “E”). On September 19, 2008, the trial court granted Petitioner’s Petition for a Delayed Appeal. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 9/19/2008 (Exh. “F”). On November 16, 2009, Petitioner filed a Request for Amended Sentence; Notice to Court with the trial court. Answer (Doc. 15), Pet.’s Request for Amended Sentence; Notice to Ct. 11/16/2009 (Exh. “H”). Petitioner acknowledged the Court’s previous grant of his Petition for a Delayed Appeal, but stated that counsel was unable to file Petitioner’s direct appeal because counsel did “not have a contract with Pima County to accept such appointments.” Id., Exh. “H” at 1. As such, Petitioner sought amendment of his sentence to time served. Id., Exh. “H” at 2. On November 19, 2009, the trial court issued its Order noting “that counsel need not be appointed appellate counsel in order to file a Notice of Appeal on Petitioner’s behalf.” Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 11/19/2009 (Exh. “I”) at 1. The trial court granted counsel leave to “file the initial Notice of Appeal and request that appellate counsel be appointed for Petitioner.” Id., Exh. “I” at 1.

On February 8, 2010, Petitioner filed his Notice of Appeal. Answer (Doc. 15), Notice of Appeal 2/8/2010 (Exh. “J”). On August 5, 2010, counsel for Petitioner filed an Anders[2] brief with the Arizona Court of Appeals.[3] Answer (Doc. 15), Appellant’s Opening Br. 8/5/2010 (Exh. “K”). On August 9, 2010, the Arizona Court of Appeals granted Petitioner leave to file a pro se supplemental brief on or before September 8, 2010. Id., Ariz.Ct.App. Order 8/9/2010 (Exh. “L”). Petitioner did not file a pro se supplemental brief.

On October 27, 2010, the Arizona Court of Appeals dismissed Petitioner’s appeal as untimely. Answer (Doc. 15), Ariz.Ct.App. Order 10/27/2010 (Exh. “M”). Petitioner did not file a motion for reconsideration or petition for review. See Answer (Doc. 15), Ariz.Ct.App. Mandate 1/21/2011 (Exh. “N”) at 1.

B. Initial Post-Conviction Relief Proceeding

On January 4, 2008, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 15), Not. of PCR 1/4/2008 (Exh. “C”). On November 19, 2008, the Rule 32 court stayed the pending Rule 32 proceedings in light of having granted his request for a delayed appeal. See Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 11/19/2008 (Exh. “G”). On February 3, 2011, Petitioner filed a Request to Reinstate Rule 32 Proceedings. Answer (Doc. 15), Pet.’s Request to Reinstate Rule 32 Proceedings 2/3/2011 (Exh. “O”). The Rule 32 court granted Petitioner’s request and ordered that Petitioner file his PCR petition on or before April 5, 2011. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 2/7/2011 (Exh. “P”).

On April 5, 2011, Petitioner filed his Petition for Post Conviction Relief. Answer (Doc. 15), Pet. for PCR (Exh. “Q”). Petitioner asserted three (3) grounds for relief: “1) defense counsel was ineffective in failing to provide a jury instruction on Petitioner’s prior bad acts, 2) defense counsel was ineffective in advising Petitioner with respect to plea negotiations, and 3) Petitioner’s sentence is disproportionate to a more culpable co-defendant’s prison sentence.” Id., Exh. “Q” at 1. On July 28, 2011, the Rule 32 court held an evidentiary hearing. See Answer (Doc. 15), Ariz. Superior Ct., Pima County, Minute Entry 7/28/2011 (Exh. “W”) & Hr’g Tr. 7/28/2011 (Doc. 15-12).

On August 1, 2011, the trial court denied Petitioner’s PCR petition. See Answer (Doc. 15), Ariz. Superior Ct., Pima County, Under Advisement Ruling, Rule 32 Petition 8/1/2011 (Exh. “X”). The trial court recognized that “[t]o prove ineffective assistance of counsel, a defendant must show that counsel’s representation fell below the standard of care in the profession, and that defendant was prejudiced by counsel’s defective performance.” Id., Exh. “X” at 1 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Rodriguez, 227 Ariz. 58 ¶ 7, 251 P.3d 1045, 1046-47 (Ct. App. 2010)).

The Rule 32 court further stated that “[t]o reverse a conviction based on ineffective assistance of counsel, a defendant must establish that counsel’s actions were unreasonable in that they fell below the threshold of what minimally competent counsel would do, and that but for counsel’s unprofessional performance, the outcome of the case would have been different.” Id., Exh. “X” at 1-2 (citations omitted).

With regard to counsel’s alleged failure to seek a jury instruction limiting Loya’s testimony, the Rule 32 court found that counsel’s strategic decision not to seek such an instruction, because of a concern that it might “draw attention to or emphasize the importance of unfavorable testimony” was within counsel’s discretion and insufficient to sustain a finding of ineffective assistance of counsel. Answer (Doc. 15), Exh. “X” at 2. The Rule 32 court further noted that “[e]ven if failing to request the limiting instruction fell below reasonable professional standards, . . . Defendant has not shown that, but for this error, the outcome of his trial would have been different.” Id., Exh. “X” at 2. Regarding plea negotiations, the Rule 32 court found that the record did not support a finding of ineffective assistance of counsel. Id., Exh. “X” at 2-3. The Rule 32 court held that Defendant understood the terms of the State’s second and final plea offer and noted “that Defendant’s real issue [was] his strong feeling that a better plea agreement should have been offered.” Id., Exh. “X” at 2-3. The Rule 32 court also found that counsel’s decision not to call Petitioner’s brother Carlos as a witness was a strategic decision that could not “be said to constitute ineffective assistance of counsel.” Id., Exh. “X” at 3 (citations omitted). Regarding Defendant’s claim that his sentence should not have exceeded that given to co-defendant Lorenzo Sanchez, the Rule 32 court stated that this issue could and should have been raised on direct appeal. Answer (Doc. 15), Exh. “X” at 3. The Rule 32 court further noted that Petitioner was given the presumptive sentence, which was well within the Judge’s discretion and not subject to modification unless it was clearly excessive. Id., Exh. “X” at 3-4. The Rule 32 court also acknowledged that Sanchez was sentenced following a guilty plea, was not convicted of participating in the drug conspiracy, and did not have a prior felony conviction. Id., Exh. “X” at 4. As such, the Rule 32 court found that Petitioner was “not entitled to relief based on any disparity in sentence with co-defendant Sanchez.” Id., Exh. “X” at 4.

On December 16, 2011, Petitioner filed his Petition for Review in the Arizona Court of Appeals. See Answer (Doc. 15), Pet. for Review 12/16/2011 (Exh. “Y”). On March 8, 2012, the Arizona Court of Appeals granted review, but denied relief. Answer (Doc. 15), Ariz.Ct.App. Mem. Decision 3/8/2012 (Exh. “Z”). The court of appeals considered Petitioner’s claims of ineffective assistance of counsel due to an alleged failure not to seek a limiting instruction, noting that “Arvizu suggests that, because any limiting instruction would have been given well after the evidence had been admitted and would not have listed the evidence specifically, the failure to request the instruction as not a reasoned choice.” Id., Exh. “Z” at 4. The court of appeals found that “Arvizu cites no authority or evidence supporting his assertion or suggesting the court was incorrect.” Id., Exh. “X” at 4. Regarding the Petitioner’s refusal of the state’s plea offer based on a belief that a particular witness would be called, the court of appeals stated that “it was the trial court’s duty to resolve conflicts in the evidence, and we will not disturb its conclusions absent clear error. Id., Exh. “Z” at 4 (citations omitted). The court of appeals did not find clear error with regard to the trial court’s findings. Id., Exh. “Z” at 4. Regarding Petitioner’s contention that his sentencing claim was not precluded because he did not have a direct appeal, the court of appeals found that “Arvizu cites no authority, and we find none, suggesting the preclusive effect of Rule 32.2. does not apply to a defendant who has not exercised his right to an appeal.” Answer (Doc. 15), Exh. “Z” at 4-5. Accordingly, the court of appeals held that “[t]he trial court did not err in finding this claim precluded.” Id., Exh. “Z” at 5.

On April 7, 2012, Petitioner sought review of the denial of his PCR petition by the Arizona Supreme Court. See Answer (Doc. 15), Pet. for Further Review 4/17/2012 (Exh. “AA”). On June 20, 2012, the Arizona Supreme Court denied review without comment. Answer (Doc. 15), Ariz. Supreme Ct. ME 6/20/2012 (Exh. “BB”).

C. The Instant Habeas Proceeding

On February 19, 2013, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner claims five (5) grounds for relief. First, Petitioner alleges that “Defense Counsel at trial was ineffective in failing to provide a Jury [sic] instruction on Petitioner’s prior bad acts[.]” Petition (Doc. 1) at 43. Second, Petitioner alleges that “Defense Counsel was ineffective in advising Petitioner with respect to plea negotiations, and effectively explain [sic] plea that was being offered to defendant.” Id. at 44. Third, Petitioner claims that his “sentence is disproportionate to a more culpable co-defendant’s prison sentence.” Id. at 47. Fourth, Petitioner asserts that “Defense Counsel was ineffective and negligent in representing Petitioner with Defense Counsel’s defense, at trial.” Petition (Doc. 1) at 48. Petitioner argues that the defense that he “never sold meth, but instead bought drugs from state’s witness, Loya, this [sic] very defense finds Petitioner guilty of the transfer of drugs.” Id. Subsumed within this claim, Petitioner also asserts that he “was under a lot of stress, depressed and taking 4 different medications; [sic] Remoron [sic], Celexa, Doxipin [sic] and thorsin [sic], the side effect [of] these medications diminished Petitioner’s ability to participate adequetly [sic] in trial” in violation of his Due Process rights pursuant to the Fifth Amendment. Id. at 49. Fifth, Petitioner alleges ineffective assistance of counsel based upon his post-conviction relief counsel’s failure to file a timely appeal.” Id. at 54. On December 23, 2013, Respondents filed their Answer (Doc. 15). Petitioner did not file a reply.

II. STANDARD OF REVIEW

A. In General


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