United States District Court, D. Arizona
G. Campbell United States District Judge.
November 9, 2015, Petitioner Isidro Pacheco filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C
§ 2254. Doc. 1. The Court referred the petition to
Magistrate Judge James F. Metcalf. Doc. 2. On September 23,
2016, Judge Metcalf issued a report and recommendation
(“R&R”) that the Court dismiss the petition
as to grounds 1, 2, and 3, and conditionally grant the
petition as to ground 4. Doc. 19. Respondents filed
objections to the R&R (Doc. 22), and Petitioner filed a
response (Doc. 25). Petitioner did not file his own
objections. For the reasons set forth below, the Court will
overrule Respondents' objections and adopt Judge
was charged with child molestation and sexual conduct with a
minor in two separate instances. Doc. 19 at 2. While living
with his employer and his employer's family, Petitioner
fondled and digitally penetrated the vagina of his
employer's six-year-old stepdaughter. Id. at
1-2. The victim related the events to her seven-year-old
cousin. Id. at 2. Her brother overheard, and one
year later related the disclosure to his parents, who
contacted the police. Id. When the police located
Petitioner, he originally denied any misconduct, but
eventually admitted fondling the victim on one occasion while
they were watching movies on a couch. Id.
Arizona Court Proceedings.
was indicted on both charges in Pinal County Superior Court
on August 28, 2013 and appointed counsel from the Pinal
County Public Defender's Office. Id. Petitioner
eventually entered into a written plea agreement wherein he
agreed to amended charges of child molestation and two counts
of attempted sexual conduct with a minor. Id. The
agreement provided for a stipulated sentence of no more than
the presumptive 17 years on the child molestation charge and
lifetime probation on the remaining counts. Id.
Petitioner appeared on July 1, 2014 with counsel Paula Cook
and entered guilty pleas to the amended charges. Id.
The trial court found the pleas knowing and voluntary, and
accepted them. Id. A sentencing hearing was held on
August 5, 2014. Because Ms. Cook had an emergency, Petitioner
appeared with counsel David Wilkinson. Id. at 3. He
requested a continuance, which was opposed by the State and
victim's mother and denied by the court. Counsel argued
for the minimum 10 year sentence, while the prosecution
sought the agreed upon 17 years. Id. Petitioner was
ultimately sentenced to 17 years. Id. At the
sentencing hearing, Petitioner informed the court that he
“was forced to sign the plea and if [he] didn't do
it, [he] would be forced to go to trial. That's what [he]
was told.” Id. Because Petitioner entered a
plea, he had no right to file a direct appeal under Arizona
law. Id. at 4.
October 20, 2014, Petitioner filed a timely Notice of
Post-Conviction Relief pursuant to Rule 32 of the Arizona
Rules of Criminal Procedure. Counsel was appointed and
eventually filed a Notice of No Colorable Claim evidencing
his inability to find an issue for review and requesting
leave for Petitioner to file a pro se petition. The
sole request in the notice was that Petitioner be allowed to
file a pro se petition for post-conviction relief.
February 27, 2015, Petitioner filed his pro se
Petition for Post-Conviction Relief. Petitioner argued that
his plea was involuntary because trial counsel was
ineffective by failing to do a pre-trial investigation or
otherwise prepare a defense. Petitioner also argued that the
trial court committed a sentencing error. The trial court
summarily denied the petition, finding that “all
matters contained in the [Petition] are precluded as having
been previously ruled upon or untimely filed or the Petition
lacks sufficient basis in law and fact to warrant further
proceedings herein[.]” Id. at 4.
then filed a Petition for Review before the Arizona Court of
Appeals, contending that the trial court committed several
errors, including issuing a “format letter”
denial, finding that he had failed to assert colorable
claims, and, because his of-right post-conviction relief
(“PCR”) proceeding was the equivalent of a direct
appeal, failing to review the record for “fundamental
error” under Anders v. California, 386 U.S.
738 (1967). Id. at 4-5. The Arizona Court of Appeals
granted review but denied relief, rejecting all of
Petitioner's arguments. Id. at 5. As to the
Anders claim, the court found that it was not
required, on review of the PCR proceeding, to conduct a
review of the record for “fundamental error.”
The Petition and the R&R.
November 9, 2015, Petitioner filed this writ of habeas
corpus, seeking relief on four grounds. The first three
allege ineffective assistance of counsel. Doc. 19 at 6. Judge
Metcalf has recommended that relief based on these three
grounds be denied. Id. at 68. The fourth ground
alleges that Petitioner was entitled under Anders to
a review of the record for “fundamental error” by
the trial court because his PCR proceeding was the equivalent
of a direct appeal. Id. at 6. Judge Metcalf
recommended conditional relief on this ground, finding that
“Petitioner's rights under Anders were
violated by the failure of the trial court to independently
review the record for non-frivolous issues for review.”
Id. at 64.
attorney appointed to represent an indigent defendant on
appeal may request that the appellate court allow him to
withdraw if he finds that any appeal would be frivolous.
Smith v. Robbins, 528 U.S. 259, 264 (2000). In
Anders, the Supreme Court held that, “in order
to protect indigent defendants' constitutional right to
appellate counsel, courts must safeguard against the risk of
granting such requests in cases where the appeal is not
actually frivolous.” Id. (citing
Anders, 386 U.S. at 740). As a result,
“counsel could not withdraw by simply advising the
court of his or her conclusion, but must include with the
request to withdraw ‘a brief referring to anything in
the record that might arguably support the
appeal.'” McCoy v. Court of Appeals of
Wisconsin, Dist. 1, 486 U.S. 429, 430 (1988).
Once the appellate court receives this brief, it must then
itself conduct a full examination of all the proceeding[s] to
decide whether the case is wholly frivolous. Only after this
separate inquiry, and only after the appellate court finds no
nonfrivolous issue for appeal, may the court proceed to
consider the appeal on the merits without the assistance of
Penson v. Ohio, 488 U.S. 75, 80 (1988) (quotation
marks and citation omitted).
Anders requirement assures that indigent defendants
have the benefit of what wealthy defendants are able to
acquire by purchase - a diligent and thorough review of the
record and an identification of any arguable issues revealed
by that review.” McCoy, 486 U.S. at 439. In
Smith, the Court made clear that “the
Anders procedure is not an independent
constitutional command, but rather a prophylactic framework;
it [is not] the only framework that could adequately
vindicate the right to appellate counsel announced in
Douglas.” Smith, 528 U.S. at 260.
Accordingly, the Court found that states could develop and
adopt their own procedures as long as these procedures
adequately protected a defendant's constitutional rights.
Id. at 279. The Court identified several factors to
consider when determining the adequacy of state procedures.
may file specific, written objections to an R&R within 14
days of being served with a copy of it. Rules Governing
Section 2254 Cases 8(b) (“Section 2254 Rules”);
see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §
636(b)(1)(C). The Court must undertake a de novo
review of those portions of the R&R to which specific
objections are made. Id.; Thomas v. Arn,
474 U.S. 140, 149 (1985); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
Section 2254 Rules 8(b); see also Fed. R. Civ. P.
72(b)(3); 28 U.S.C. § 636(b)(1)(C).
object to the recommendation only as it relates to ground 4.
Doc. 22. According to Respondents, Judge Metcalf erred by
failing to find that an Anders claim was
procedurally barred by Petitioner's failure to raise it
before the superior court. Id. at 2. Additionally,
Respondents contend that Judge Metcalf incorrectly found that
Petitioner's Rule 32 of-right PCR proceedings violated
Anders. Id. at 9. No objection was filed by
Petitioner, relieving the Court of its obligation to review
the recommendation on grounds 1 through 3. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3);
Thomas, 474 U.S. at 149.