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.

Roman-Lizarraga v. Ryan

United States District Court, D. Arizona

June 26, 2017

Florencio Roman-Lizarraga, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

          REPORT AND RECOMMENDATION

          Leslie A. Bowman United States Magistrate Judge

         Pending before the court is a petition for writ of habeas corpus filed in this court on October 3, 2016, by Florencio Roman-Lizarraga, an inmate currently held in the Arizona State Prison Complex in Tucson, Arizona. (Doc. 1)

         Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition. It is time-barred.

         Summary of the Case

         Roman-Lizarraga was convicted in absentia after a jury trial of “conspiracy to possess a narcotic drug for sale, possession of a narcotic drug for sale, and sale of a narcotic drug.” (Doc. 24-1, p. 3) The trial court sentenced him to “concurrent ten-year terms for each offense.” Id.

         Roman-Lizarraga filed a notice of appeal, but counsel filed an Anders brief being unable to find any meritorious issues. (Doc. 24-1, p. 3) Roman-Lizarraga was given an opportunity to file a supplemental brief pro se, but he failed to do so. Id.; (Doc. 24-9) The appellate court independently searched the record for fundamental error and finding none, affirmed the convictions and sentences on October 27, 2011. (Doc. 24-1, pp. 2-4) Roman-Lizarraga did not file a petition for review with the Arizona Supreme Court. (Doc. 24-10)

         On December 5, 2011, Roman-Lizarraga filed a notice of post-conviction relief (PCR). (Doc. 25, p. 3) He argued trial counsel and appellate counsel were ineffective for failing to prevent his being tried in absentia. (Doc. 25, p. 8) He further argued trial counsel failed to transmit the state's plea offer to him. Id. Had he been offered this plea agreement, he would have accepted it. Id.

         The PCR court found no evidence that trial counsel or appellate counsel were ineffective and dismissed the petition on July 30, 2013. (Doc. 27, pp. 13-21) The court noted that trial counsel met with Roman-Lizarraga three days after the plea offer was made. Id. And while trial counsel refused to tell the court what transpired at that meeting, it is likely that the state's plea offer was a topic of discussion. Id. The court further noted that the defendant absconded eleven days later on December 1, 2009. Id. The Arizona Court of Appeals granted review but denied relief on February 25, 2014. (Doc. 27, pp. 48-50) The Arizona Supreme Court denied review on November 7, 2014. (Doc. 27, p. 52)

         Almost two years later on September 28, 2016, Roman-Lizarraga constructively filed in this court his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] (Doc. 1) He filed a supplement on October 20, 2016. (Doc. 6)

         Roman-Lizarraga claims (1) his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated when he was tried in absentia, (2) trial counsel was ineffective for failing to prevent his being tried in absentia, (3) his Constitutional rights were violated by his trial in absentia, trial counsel committed errors pretrial, at trial, and at sentencing, the trial court committed errors at trial, appellate counsel failed to raise colorable claims, his Fourth Amendment rights were violated by the police, and the appellate court failed to grant his ineffective assistance of counsel claims, and (4) trial counsel failed to collect character evidence. (Doc. 1); (Doc. 14, pp. 3-4)

         On May 2, 2017, the respondents filed an answer arguing among other things that the petition is time-barred. (Doc. 23) Roman-Lizarraga did not file a reply.

         The respondents are correct; the ...


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.