Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pacheco v. Ryan

United States District Court, D. Arizona

April 11, 2017

Felipe Barrera Pacheco, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Michelle H. Bums United States Magistrate Judge.

         TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT:

         Petitioner 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).

         BACKGROUND[1]

         The 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. 1980)

(Exh. A at 1.)

         After 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. (Id.)

         On 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 5.)

         In his 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 confrontation call;
Ground Two: Petitioner alleges that he received ineffective assistance of counsel when his trial counsel failed to challenge Petitioner's arrest ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.