United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
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.
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, 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.