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Valenzuela v. Ryan

United States District Court, D. Arizona

October 3, 2016

Pete Anthony Valenzuela, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          Honorable Roslyn O. Silver Senior United States District Judge

         Petitioner Pete Anthony Valenzuela filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254, raising three claims. (Doc. 1). Magistrate Judge John Z. Boyle filed a Report and Recommendation (“R & R”) that the petition be dismissed with prejudice. (Doc. 9). Valenzuela filed a timely objection. (Doc. 11). The Court will adopt the R & R with comments.

         BACKGROUND

         Valenzuela was charged with two counts of Burglary in the Second Degree. (Doc. 7-1, Exh. B at 8). He pled guilty to one count. (Doc. 7-1, Exh. C at 11). His pro se post-conviction relief (“PCR”) petition was denied on December 12, 2014[1], and the Arizona Court of Appeals dismissed his petition for review, filed January 27, 2015, as untimely. (Doc. 14 at 2). He then filed the present habeas petition, raising three claims:

1. The charges in the indictment were multiplicitous.
2. Warrantless search and seizure of his vehicle.
3. Ineffective assistance of counsel in the forms of:
a) failing to contest the indictment,
b) failing to challenge the stop and arrest,
c) refusing to take his case to trial.

(Doc. 1 at 6-8). The R & R recommends finding Valenzuela, by pleading guilty, waived the first two claims, as well as the first two bases for the third claim. (Doc. 9 at 6-7). In his objection, Valenzuela argues a guilty plea does not void prior constitutional violations in the criminal process. (Doc. 11 at 4).

         The R & R construed the claim of ineffective assistance of counsel for refusing to take his case to trial as a claim that Valenzuela's plea was involuntary. (Doc. 9 at 7-8). It recommended holding the claim is procedurally defaulted because it was not fairly presented in state court. (Id. at 8). Valenzuela did not directly address that section of the R & R in his objection.

         DISCUSSION

         I. ...


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