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Pacheco v. Ryan

United States District Court, D. Arizona

December 22, 2016

Isidro Pacheco, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          David G. Campbell United States District Judge.

         On 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 Metcalf's recommendation.

         I. Background.

         Petitioner 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.

         A. Arizona Court Proceedings.

         Petitioner 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.

         On 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.

         On 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.

         Petitioner 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.” Id.

         B. The Petition and the R&R.

         On 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.[1]

         C. Anders Review.

         An 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 counsel.

Penson v. Ohio, 488 U.S. 75, 80 (1988) (quotation marks and citation omitted).

         “The 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. Id.

         II. Legal Standard.

         A party 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).

         III. Analysis.

         Respondents 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.

         A. Procedural ...


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