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Hernandez v. Ryan

United States District Court, D. Arizona

October 27, 2017

Johnathan T. Hernandez, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          David K. Duncan, United States Magistrate Judge.

         On August 11, 2016, Petitioner Johnathan T. Hernandez (“Petitioner” or “Hernandez”) filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) Petitioner currently is confined in the Arizona State Prison Complex, Central Arizona Correctional Facility in Florence, Arizona. (Id.) He was convicted after a jury trial on one count of sexual conduct with a minor, and was sentenced to a mitigated term of 18 years imprisonment. (Id. at 1-2) Petitioner raises a single ground for relief: that he allegedly received ineffective assistance of counsel (“IAC”) in violation of the Sixth Amendment to the U.S. Constitution when his counsel advised him to reject a plea offer based on counsel's advice that Petitioner's mistake as to the victim's age could be asserted as a defense at trial. (Id. at 6-8)

         Respondents filed their Answer on March 15, 2017. (Doc. 11) Respondents argue that Petitioner's ground for relief fails on the merits. (Id. at 7-13) Petitioner filed his Reply on July 10, 2017. (Doc. 18) In his Reply, Petitioner contends that the Arizona Court of Appeals improperly made evidentiary findings without holding a hearing and unreasonably applied the Strickland standard to Petitioner's IAC claim. (Doc. 18 at 7-18)

         For the reasons set forth below, the Magistrate Judge recommends that this Court deny the Petition for Writ of Habeas Corpus and dismiss this action with prejudice.

         I. BACKGROUND

         A. Petitioner's Indictment, Jury Trial, and Sentence

         In its Memorandum Decision on Petitioner's direct appeal, the Arizona Court of Appeals set forth the following facts:[1]

The father of the thirteen-year-old victim called the police after he discovered that Hernandez had engaged in sexual relations with his child. After the police conducted an investigation, Hernandez was subsequently indicted for two counts of sexual conduct with a minor and one count of child prostitution, all class 2 felonies and dangerous crimes against children.
During trial, the victim testified that Hernandez sent her a text message and offered her $1500 if he could perform oral sex on her. He picked her up at a Safeway store and drove her to a motel in Tolleson. She testified that he took off her clothes, and after she was on the bed, put his penis in her vagina. She saved the underwear she was wearing and later gave it to the police.
A criminalist from the Department of Public Safety (“D.P.S.”) crime lab testified that she found sperm in the crotch area of the victim's underwear and preserved the DNA for analysis. Additionally, a forensic biochemist from the D.P.S. crime lab testified that the DNA found on the victim's underwear matched Hernandez's DNA sample at twelve locations.
Hernandez testified on his own behalf. He offered his version of the events but specifically denied having intercourse with the thirteen-year-old. Despite his testimony, the jury found him guilty of one count of sexual abuse of a minor by having sexual intercourse with the victim, and that the victim was under the age of fourteen. The jury, however, found him not guilty of the second count (digital penetration) and was unable to reach a verdict on the child prostitution charge. Hernandez was subsequently sentenced to a slightly mitigated term of eighteen years in prison. He received 431 days of presentence incarceration credit.

         (Doc. 11-1 at 8)

         B. Petitioner's Direct Appeal

         On direct appeal to the Arizona Court of Appeals, Petitioner's appointed counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that after reviewing the record she had been unable to identify arguable questions of law, and requesting the court of appeals to conduct an Anders review.[2] (Doc. 11-1 at 7) Petitioner did not file a supplemental brief. (Id.)

         After reviewing the record, the Arizona Court of Appeals failed to find any error, “much less fundamental error.” (Id. at 9) The court noted that the proceedings had complied with the Arizona Rules of Criminal Procedure, Petitioner had been represented by counsel at all stages of the proceedings, and the sentence he received was within the statutory range, but that he was entitled to one additional day of presentence incarceration credit. (Id. at 8-9) Moreover, the court found the evidence supported Petitioner's conviction, and specifically mentioned that Petitioner admitted having been in the motel with his victim, and that the jury had decided whether to believe the testimony of Petitioner or his victim as to whether he had sexual intercourse with her. (Id. at 9) Petitioner did not request review in the Arizona Supreme Court. (Doc. 1 at 3)

         C. Petitioner's Post-Conviction Relief Action

         Hernandez filed a petition for post-conviction relief (“PCR”) in the trial court, through counsel. (Doc. 11-4) He asserted the same issue that is presented here, and requested an evidentiary hearing. (Id. at 90) Petitioner argued that he was misled by his trial counsel, and relied on counsel's advice that he qualified for a defense predicated on his belief that his victim was 18 years old, although in fact she was only 13. (Doc. 11-4 at 101-105) Petitioner contends he suffered prejudice resulting from the alleged ineffective representation when he relied on counsel's advice to reject a plea agreement and to proceed instead with a trial. (Id. at 102)

         The superior court noted that Petitioner, his wife, and his mother each averred in affidavits that Petitioner declined to accept a plea agreement based on his counsel's advice that he could assert a viable defense based on his belief that the victim was 18 years old, and that she had consented to the sexual act charged. (Id. at 110) However, the court also noted that Petitioner and his parents attended the settlement conference, that the transcript for the conference documented Petitioner had been informed that consent was not a defense in his case, and that Petitioner's trial defense was not based on his belief of the victim's age. (Id.) The court explained that defense counsel pursued a defense of innocence at trial, and that counsel did not seek a jury instruction on petitioner's “belief that the victim was eighteen was a defense to sexual conduct with a minor.” (Id. at 111) The court also indicated the trial transcript documented defense counsel declaring “I don't think we've made any argument, whatsoever, or really submitted any evidence as to what my client's opinion of her age or what her-or what his thoughts of her age was at any time during the incident.” (Id.) The PCR court further concluded that Petitioner had “faced the same sentencing range after trial that he did in the plea agreement except that the sentence was capped at the presumptive as there were no aggravating factors.” (Id.) It concluded that Petitioner had failed to present evidence establishing he would have received a lesser sentence by accepting the plea offer, and similarly failed to otherwise demonstrate he had been prejudiced by failing to accept the plea. (Id. at 112)

         Hernandez petitioned for review in the Arizona Court of Appeals. (Id. at 114-130) That court granted review, but denied relief. (Id. at 139) The court of appeals concluded that although Petitioner's defense counsel had “attempted to circumvent” the statute limiting the defense of mistaken belief of the victim's age to victims aged fifteen to seventeen, counsel had “ultimately conceded” this defense did not apply to Petitioner's case, and had “expressly so stated during the settling of jury instructions.” (Id. at 138) Moreover, the court of appeals held that the PCR court had properly rejected Petitioner's claim that he had refused the plea offer in reliance on defense counsel's erroneous advise that he could “assert as a defense that the victim had told him[, ] and he had believed[, ] she was eighteen and could, therefore[, ] consent to sexual conduct.” (Id. at 139) The court of appeals held that the PCR court did not abuse its discretion by rejecting this claim without an evidentiary hearing because: (1) Petitioner was told at the settlement conference that the victim's consent was not a defense; (2) his defense at trial was that he did not have sexual contact with the victim, and was not that he had engaged in the charged acts but mistakenly believed she was eighteen years old; and (3) Petitioner was not prejudiced by the rejection of the plea offer because he “would have been required to enter a guilty plea to child prostitution, with a sentencing range of thirteen to twenty-seven years, and guilty pleas to two amended counts of attempted child molestation, requiring two lifetime probation terms.” (Id.) The court of appeals stated that when a claim is based on affidavits lacking a “'reliable factual foundation'” and “'some substantial evidence' to support it, ” a court may reject the claim without an evidentiary hearing. (Id., quoting State v. Krum, 183 Ariz. 288, 294-95, 903 P.2d 596, 602-03 (1995)).

         The Arizona Supreme Court denied Hernandez's petition for review. (Id. at 141)

         II. LEGAL FRAMEWORK

         A. Ineffective Assistance of Counsel (“IAC”)

         Under clearly established federal law on IAC, Petitioner needs to show that his counsel's performance was both objectively deficient, and caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). This results in a “doubly deferential” review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011). This Court has discretion to determine which Strickland prong to apply first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998). A habeas court reviewing a claim of IAC must determine “whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). In other words, this Court's “pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

         Petitioner received objectively deficient representation if his counsel “‘fell below an objective standard of reasonableness' such that it was outside ‘the range of competence demanded of attorneys in criminal cases.'” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Strickland, 466 U.S. at 687). To demonstrate prejudice, Petitioner “must show that there [wa]s a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

         B. 28 U.S.C. ยง 2254 Habeas Petition - Legal ...


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