United States District Court, D. Arizona
Avelino Camacho, Petitioner, represented by Michael Philip
Denea, Law Offices of Michael P Denea PLC.
Charles L Ryan, Respondent, represented by Jacinda Ann Lanum,
Office of the Attorney General - Tucson - Criminal Appeals.
REPORT AND RECOMMENDATION
K. DUNCAN, Magistrate Judge.
HONORABLE G. MURRAY SNOW, U.S. DISTRICT COURT JUDGE:
Avelino Camacho filed a Petition for Writ of Habeas Corpus
challenging his convictions, and ensuing sentences, in
Maricopa County Superior Court for one count of kidnapping
and one count of conspiracy to commit first degree murder.
His habeas petition argues that he received ineffective
assistance of counsel. As explained below, the Court
recommends that Camacho's petition be denied and
dismissed with prejudice.
and Procedural Background
2004, a woman was forcibly driven to the desert by several
men, including Camacho, who threatened to kill her. (Doc. 8
at 3-4) She escaped and was later rescued by a passing
motorist. ( Id. ) For his role in this incident,
Camacho was indicted in January 2006 for one count of
conspiracy to commit first degree murder and one count of
kidnapping. (Doc.1, Ex. A)
2006, Camacho was arrested. (Doc. 1 at Â¶ 25) From his arrest
until August 2006, Camacho was represented by counsel from
the Public Defender's Office who learned that his office
had a conflict and so he moved to withdraw. (Doc. 1, Ex. H)
Camacho was then represented by counsel from the Office of
the Legal Advocate, Steve Koestner. (Doc. 1, Exs. K at 13-16,
of his representation of Camacho, Koestner sent the
prosecutor an email on April 19, 2007, about a plea offer.
(Doc. 1, Ex. L) Koestner subsequently testified that he would
only have done so because Camacho was
interested. (Doc. 1, Ex. K at 78-79) In this
email, Koestner stated that he had spoken to Camacho who had
"indicated that he would be amenable to a plea agreement
with a stipulated sentence of 15 years." (Doc. 1, Ex. L)
Later that day, the prosecutor replied that the only plea he
"may be able to offer... is a stip to 21 years. If
he'll take that we're don[e] - If not it looks like
trial." The prosecutor's email did not contain any
mention of a deadline for accepting the 21 year plea offer.
following morning, Koestner wrote back. His entire email
said, "He won't accept that. I will advise him of
the offer but he isn't going to accept 21 years. Looks
like trial." (Doc. 1, Ex. L) Koestner subsequently
testified that this reply indicates that Camacho had told him
that he would not "accept anything more than 15"
years but that Koestner would talk to Camacho about the
offer. (Doc. 1, Ex. K at 80-81)
May 1, 2007 timesheets showed that Koestner met with Camacho
that day. (Doc. 1-1, Ex. Z) Koestner subsequently testified
that he would have advised Camacho to accept the plea. (Doc.
1, Ex. K at 84) On May 2, 2007, Koestner filed a response to
the State's motion to designate the case as complex.
10, 2007, Camacho filed a motion to change counsel. (Doc. 1,
Ex. Q) As part of the rationale to justify the change, he
stated that he had not received a copy of the police report
until he had been incarcerated for eight months. (
Id. ) The Court granted his request and provided
Camacho with new counsel. (Doc. 1, Exs. N, R) This counsel
represented Camacho at his November 2007 jury trial in
Maricopa County Superior Court where he was found guilty of
the two charged counts. (Doc. 1, Ex. B) Camacho received
concurrent sentences, the longest being 25 years to life.
(Doc. 1, Exs. C, M) On direct appeal, the Arizona Court of
Appeals affirmed his convictions and sentences. (Doc. 1, Ex.
filed a petition for post-conviction relief. After it was
fully briefed, the Superior Court conducted an evidentiary
hearing and denied relief. (Doc. 1, Exs. E, F, O) On appeal
of this denial, the Arizona Court of Appeals granted review
and remanded for further findings. (Doc. 1, Exs. T, U, V, W,
X) On remand, the Superior Court accepted additional
materials from the parties, conducted oral argument, and then
issued a decision denying Camacho relief. (Doc. 1, Exs. Y, Z,
AA; Doc. 11-5, Ex. W) Camacho again appealed and the Arizona
Court of Appeals upheld the Superior ...