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Camacho v. Ryan

United States District Court, D. Arizona

June 24, 2016

Luis Avelino Camacho, Petitioner,
v.
Charles L. Ryan, Respondent.

          Luis 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

          DAVID K. DUNCAN, Magistrate Judge.

         TO THE HONORABLE G. MURRAY SNOW, U.S. DISTRICT COURT JUDGE:

         Luis 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.

         Factual and Procedural Background

         In May 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)

         In May 2006, Camacho was arrested. (Doc. 1 at ¶ 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.[1] (Doc. 1, Exs. K at 13-16, L)

         As part 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.[2] (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.

         The 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)

         Koestner's 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.

         On May 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. D)

         Camacho 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 ...


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