United States District Court, D. Arizona
Jesus J. Trevizo, Petitioner,
Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
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
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
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).
FACTUAL AND PROCEDURAL BACKGROUND
Initial Charge and Sentencing
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
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.
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.”
Post-Conviction Relief Proceeding
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.
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.
The Instant Habeas Proceeding
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.
STANDARD OF REVIEW
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 ...