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Trevizo v. Ryan

United States District Court, D. Arizona

December 21, 2016

Jesus J. Trevizo, 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 Jesus J. Trevizo'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 a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 11). Petitioner never replied. 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

         A. Initial Charge and Sentencing

         On April 28, 2011, Petitioner was charged via Information on five felony counts: 1) possession of a dangerous drug for sale; 2) possession of a dangerous drug; 3) possession of drug paraphernalia; and 4) two counts of misconduct involving weapons. Answer (Doc. 11), Information (Exh. “A”) at 1-2. Also contained in the Information were three (3) allegations of prior convictions including 1) attempted possession of a dangerous drug; 2) possession of a dangerous drug as a second drug offense; and 3) possession of marijuana for sale and possession of drug paraphernalia. Id., Exh. “A” at 2. Counsel was appointed to represent Petitioner. See Answer (Doc. 11), Ariz. Superior Ct., Graham County, Case No. CR2011-0143, Guilty/No Contest Plea Proceeding (Exh. “C”-Guilty Plea) at 1.[2]

         On August 29, 2011, pursuant to a plea agreement, Petitioner pleaded guilty to one count of attempted possession of a dangerous drug for sale, a class 3 nondangerous and nonrepetitive felony, in violation of A.R.S. §§ 13-1001, 13-3407(A)(2), 13-3401, 13-701, 13-702(C), and 13-801. Answer (Doc. 11), Ariz. Superior Ct., Graham County, Case No. CR2011-0143, Plea Agreement (Exh. “C”-Plea Agreement) at 1. Pursuant to the plea agreement, Petitioner also admitted to the prior convictions of possession of marijuana for sale, a class 4 felony, and possession of drug paraphernalia, a class 6 felony, in the Superior Court of Graham County, State of Arizona, Case No. CR2006-194. Answer (Doc. 11), Exh. “C”-Plea Agreement at 1. Petitioner initialed each paragraph of the plea agreement and also signed it indicating that he understood the terms of the agreement, that he had discussed the case and constitutional rights with his lawyer, and understood the rights that he was giving up as a result of the plea agreement. See Answer (Doc. 11), Exh. “C”-Plea Agreement; see also Answer (Doc. 11), Exh. “C”-Guilty Plea. On the same date, Petitioner signed and received a Notice of Rights of Review After Conviction, which indicated that he had waived his right to appeal and advised him of the time by which he must file a Notice of Post-Conviction Relief. Answer (Doc. 11), Ariz. Superior Ct., Graham County, Case No. CR2011-00143, Not. of Rights of Review After Conviction (Exh. “D”) at 1-2. The court reviewed the terms of Petitioner's Plea Agreement with him and Petitioner indicated that he was satisfied with the representation of his counsel. Answer (Doc. 11), Ariz. Superior Ct., Graham County, Case No. CR2011-00143, Minute Entry 8/29/2011 (Exh. “E”).

         On October 3, 2011, Petitioner was sentenced to a presumptive term of six and one half (6.5) years of imprisonment, with credit for seventeen (17) days time served. Answer (Doc. 11), Ariz. Superior Ct., Graham County, Case No. CR2011-00143, Minute Entry 10/3/2011 (Exh. “F”). The court advised Petitioner regarding the right of review and again provided him with written notice of those rights. Id., Exh. “F.”

         B. Post-Conviction Relief Proceeding

         On January 6, 2014, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 11), Not. of PCR 1/6/2014 (Exh. “G”). In his notice, Petitioner asserted ineffective assistance of trial counsel, alleging that counsel failed to explain his right to Post-Conviction Relief. See Answer (Doc. 11), Exh. “G” at 3. Petitioner also alleged that the search warrant was served on the wrong address. Id., Exh. “G” at 3.

         On January 17, 2014, the Rule 32 court denied Petitioner's petition. See Answer (Doc. 11), Ariz. Superior Ct., Graham County, Order 1/17/2014 (Exh. “H”). The Rule 32 court noted that Petitioner was sentenced “consistent with his plea agreement[, ] [and] advised of his rights of review under Rule 32 at that time.” Id., Exh. “H” at 1. The Rule 32 court further noted that the trial court reviewed Petitioner's rights of review under Rule 32, he acknowledged that he understood them, and he was provided a copy of those rights by his attorney prior to sentencing. Id., Exh. “H” at 1. The Rule 32 court further noted that “[t]he issue of the address given by law enforcement was raised at the preliminary hearing.” Id., Exh. “H” at 1. The court dismissed Petitioner's Rule 32 petition for untimeliness, and noted Petitioner's failure to “provide[] the Court with a valid reason to excuse non-compliance with the time limits of Rule 32.” Id., Exh. “H” at 1 (citing State v. Gause, 112 Ariz. 296, 541 P.2d 396 (1975)). Petitioner did not appeal.

         C. The Instant Habeas Proceeding

         On February 18, 2014, 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 four (4) grounds for relief. First, Petitioner argues that his Fourth Amendment rights were violated. Petition (Doc. 1) at 6. Petitioner asserts that the search warrant used contained a different address than the premises searched. Id. As such, Petitioner argues that the search and seizure were illegal. Id. Second, Petitioner alleges that his Fifth Amendment Due Process rights were violated, because his counsel failed to request full discovery, failed to request an evidentiary hearing, and failed to seek dismissal based on the alleged illegal search and seizure. Id. at 7. Third, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth Amendment. Id. at 8. Petitioner asserts that counsel failed to “aggressively represent Petitioner Jesus J. Trevizo in court proceedings[.]” Petition (Doc. 1) at 8. Fourth, Petitioner asserts that his Fourteenth Amendment rights of Due Process and Equal Protection were violated. Id. at 9. Petitioner alleges that counsel acted as “an instrument of the State” and mislead Petitioner regarding his constitutional rights. Id. On July 25, 2014, Respondents filed their Answer (Doc. 11). Petitioner did not reply.

         II. STANDARD OF REVIEW

         A. In General

         The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable ...

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