United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Michelle H. Bums United States Magistrate Judge.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT:
Felipe Barrera Pacheco, who is confined in the Arizona State
Prison Complex, filed a pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
Respondents filed an Answer (Doc. 8), and Petitioner filed a
Reply (Doc. 9).
following facts were found by the Arizona Court of Appeals:
Petitioner Felipe Pacheco was convicted pursuant to a plea
agreement of one count of child molestation and two counts of
attempted child molestation. The trial court sentenced him to
the stipulated prison term of seventeen years on count one,
followed by concurrent, lifetime terms of probation on the
remaining counts. After Pacheco filed a notice of
post-conviction relief, pursuant to Rule 32, Ariz.R.Crim.P.,
appointed counsel filed a notice pursuant to Rule 32.4(c)
avowing she had found no colorable claim to raise and
requesting that Pacheco be given time to file a pro se
petition. Pacheco filed a petition, raising claims of
ineffective assistance of trial counsel. The court denied
relief without an evidentiary hearing ... .
In his pro se petition, Pacheco claimed trial counsel had
been ineffective because she had failed to adequately explain
the plea agreement to him in part because she did not speak
his native language of Spanish and used “hand
gestures” in an attempt to communicate; she “gave
him faulty legal advice regarding elements of possible
defense”; and she did not inform him about
“options” he could have pursued on appeal. In its
minute entry denying Pacheco's pro se petition, the court
identified and addressed the claims he had raised, resolving
them in a manner that has permitted review by this court.
See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d
1358, 1360 (App. 1993).
The record before us supports the trial court's ruling.
We note, in particular, that a certified Spanish interpreter
was present during the change-of-plea hearing, which began as
a settlement conference, and at sentencing. And among the
questions the court asked Pacheco at the change-of-plea
proceeding was whether the initials he had written in front
of each paragraph of the plea agreement reflected that the
terms had been “read and explained to [him] in the
Spanish language” and that his attorney had reviewed
the provisions with him and had answered his questions.
Pacheco responded, “Yes.” Pacheco has failed to
sustain his burden of establishing the court abused its
discretion in dismissing his petition. Consequently, we adopt
the court's ruling, finding no purpose would be served by
restating the ruling in its entirety here. See
Whipple, 177 Ariz. at 274, 866 P.2d at 1360.
Additionally, because some of his allegations regarding
counsel's purported ineffectiveness are being raised for
the first time on review, we will not address them. State
v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App.
(Exh. A at 1.)
the Arizona Court of Appeals denied relief, Petitioner filed
a petition for review in the Arizona Supreme Court. (Exh. B.)
The petition for review was denied on October 8, 2013.
October 9, 2013, Petitioner filed another PCR Notice. The
trial court dismissed the PCR proceeding on October 23, 2013,
(erroneously) finding that Petitioner's first PCR
proceeding was still pending with the Arizona Supreme Court.
(Exhs. C, D.) Thereafter, Petitioner filed a “Request
to be Permitted to File a Post-Conviction Relief Petition,
” which the trial court treated as a timely PCR notice,
and counsel was then appointed to represent Petitioner. (Doc.
1 at 19.) Petitioner, however, waived counsel and represented
himself in his second PCR petition. (Doc. 1 at 27-28.)
Petitioner filed his pro se PCR petition on April 28, 2014,
and it was summarily denied on February 5, 2015. (Exhs. E, F,
G.) The pleadings indicate that Petitioner's petition for
review was denied by the Arizona Court of Appeals. (Doc. 8 at
habeas petition, Petitioner asserts four grounds for relief:
Ground One: Petitioner alleges that he received ineffective
assistance of counsel when his trial counsel failed to move
to suppress Petitioner's statement made in a
Ground Two: Petitioner alleges that he received ineffective
assistance of counsel when his trial counsel failed to
challenge Petitioner's arrest ...