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Garcia v. Ryan

United States District Court, D. Arizona

October 31, 2017

Roberto Ramirez Garcia, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          HONORABLE DOUGLAS L. RAYES, U.S. DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          David K. Duncan United States Magistrate Judge

         On December 22, 2016, Petitioner Roberto Ramirez Garcia[1] (“Petitioner” or “Garcia”) 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, Lewis-Morey Unit in Buckeye, Arizona. Petitioner raises four grounds for relief: (1) that he was not competent to stand trial or enter into a plea agreement, in violation of his due process and equal protection rights; (2) that he was denied due process because he made his plea “unknowingly, involuntarily, and unintelligently”; (3) that he received ineffective assistance of trial counsel in violation of his due process and equal protection rights; and (4) that his sentence was arbitrary and capricious, in violation of his due process and equal protection rights. (Id. at 6-9)

         Respondents filed an Answer limited to affirmative defenses on May 11, 2017. (Doc. 11) Respondents argue that each of Petitioner's grounds for relief is either expressly or impliedly procedurally defaulted without excuse. (Doc. 11 at 19-28) Petitioner filed his Reply on July 7, 2017. (Doc. 14) In his Reply, Petitioner contends that ineffective representation by both his trial and his state post-conviction relief counsel constitutes cause for his default. (Id. at 2-3) He also alleges government interference in his ability to present claims due to his confinement for three years in a maximum security solitary confinement prison. (Id. at 3-4)

         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 Plea and Sentencing

         On July 17, 2008, Petitioner was indicted in Yuma County Superior Court on counts of first degree murder, conspiracy to commit first-degree murder, participating in a criminal street gang, and kidnapping. (Doc. 11-1 at 50-52) At arraignment, Petitioner entered a plea of not guilty on all charges. (Id. at 55) On November 12, 2008, the county attorney and public defender filed a stipulated motion for a mental health evaluation pursuant to Rule 11.2 of the Arizona Rules of Criminal Procedure. (Id. at 57-59) The motion was based on the public defender's concerns about Petitioner's level of maturity and comprehension. (Id. at 58) On December 10, 2008, the superior court conducted a hearing on this motion. (Id. at 61-69) Petitioner's counsel emphasized that Petitioner was only 16 and was not being tried in Juvenile Court, and stated that her “simple observation is, it's difficult for him to comprehend the seriousness of this situation we're in[.]” (Id. at 66) The court did not find grounds “at the present time” to grant the motion and denied it without prejudice. (Id. at 61, 67) At a hearing on March 20, 2009, however, the superior court granted Petitioner's request for a mental health examination pursuant to Rule 26.5 of the Arizona Rules of Criminal Procedure, “to assist the court in sentencing[.]” (Id. at 71-73)

         Following plea negotiations, Petitioner entered an agreement to plead guilty to a count of second-degree murder. (Id. at 76-78) The agreement documented that this crime carried a presumptive sentence of 16 years' imprisonment, a minimum sentence of 10 years, and a maximum sentence of 22 years. (Id. at 76) The parties stipulated to an aggravated term of 22 years' imprisonment. (Id.) At Petitioner's change of plea hearing, it was discussed that Petitioner had undergone his Rule 26.5 mental health examination, but that the report was still pending. (Id. at 80, 85-86) The superior court noted that it “was waiting for [the Rule 26.5 examination report] and that [it would] set another hearing in this matter prior to sentencing.” (Id. at 81, 109-110)

         Petitioner's sentencing hearing was held on June 12, 2009. (Doc. 11-2 at 2, 4-14) Before the superior court judge announced the sentence, he was asked by Petitioner's counsel if he had reviewed the Rule 26.5 psychological evaluation. (Id. at 10) The judge determined that he had not reviewed the evaluation, but stated that it was still his intention to impose the sentence of 22 years. (Id.) Petitioner's counsel did not wish to pursue the issue, declaring “[w]e understand that that's a stipulated term between the defendant and the State.” (Id.) The court recognized two mitigating factors, Petitioner's young age and limited intellectual capacity, but found that aggravating factors, including the use of a deadly weapon, the presence of an accomplice, and ambush “far outweigh[ed]” the mitigating factors. (Id. at 11) The court sentenced Petitioner to a term of 22 years, consistent with the plea agreement. (Id. at 11-12)

         B. Petitioner's Post-Conviction Relief Action

         Petitioner timely filed a Notice of Post-Conviction Relief (“PCR”) with the Yuma County Superior Court on August 24, 2009. (Doc. 11-2 at 16-19) He was appointed counsel, who filed Garcia's Petition for PCR on July 28, 2010. (Id. at 22, 24-39) Petitioner argued that trial counsel was constitutionally ineffective because she: (1) failed to object to the superior court's denial of a Rule 11 evaluation (Id. at 24); (2) failed to move to dismiss the sentencing enhancements relating to Counts One and Two of the indictment (Id. at 26); (3) allowed Petitioner to plead guilty and be sentenced to allegedly illegal enhancements (Id.); (4) failed to object to the superior court's decision to sentence Petitioner without having read the Rule 26.5 evaluation (Id. at 32); and (5) did not request funding for an independent mental health expert to further evaluate Petitioner (Id.). Additionally, Petitioner argued that the trial court itself violated his constitutional rights when it sentenced him after refusing to provide a Rule 11 evaluation, ordered a Rule 26.5 evaluation but declined to read the evaluation report prior to sentencing, and sentenced him to a maximum sentence. (Id. at 26) The Petitioner asserted that his conviction and sentencing violated his rights under the “Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Art[icle] ¶ 4 of the Constitution of the State of Arizona, numerous Arizona statutes, and applicable case law.” (Id. at 25)

         Petitioner also complained that the Rule 26.5 evaluation, which the superior court declined to read prior to sentencing him, “fell below the standards of care consistent [with] that required by a forensic psychologist to determine the competency of a 16 year old mentally retarded individual being sentenced on charges of first degree murder.” (Id. at 33) On August 12, 2010, through counsel, Petitioner filed a Motion for Funding for Forensic Expert, requesting up to $5, 000.00 to fund “a full psychological evaluation to be conducted by a forensic expert.” (Id. at 107)

         In its response to the PCR petition, the county attorney noted that Petitioner's argument regarding the Rule 26.5 evaluation was ambivalent, because Petitioner credited the evaluation when raising sentencing claims on the ground that the court had not read the report, but also criticized the report as being forensically insufficient. (Id. at 117) On February 28, 2011, Petitioner's counsel filed a Supplement to the PCR petition, wishing to clarify that his request for evaluation was intended to determine whether Petitioner “was restorable if not competent, and if not, if he could ever be restored which would preclude criminal prosecution. (Id. at 175) On May 6, 2011, the superior court granted Petitioner's motion to fund a forensic expert, and “appointed Dr. Richard Hinton to conduct a full psychological evaluation of the Defendant.” (Id. at 194)

         On October 25, 2012, Petitioner's counsel filed a supplemental petition for PCR. (Doc. 11-3 at 25-39) Counsel explained that after he had spoken with Dr. Hinton about the results of his evaluation, he had discussed the situation with [Petitioner's] father to obtain a privately funded second opinion on Dr. Hinton's anticipated conclusions. (Id. at 27) A second evaluation was conducted by Dr. Jansen DeMarte, Ph.D., a licensed clinical psychologist, the results of which were attached to the supplemental petition. (Id. at 30-39) Dr. DeMarte concluded that:

[o]verall, [Petitioner] does not have a psychological disorder that distorts his reality or impairs his ability understanding courtroom and legal knowledge necessary to stand trial. He does have intellectual deficits, which date back to childhood. While his impairments do not indicate that he is incompetent to stand trial historically or currently, in order for him to have a full appreciation of the legal proceedings, his attorney would need to spend a significant amount of time reviewing this information with him.

(Id. at 39).

         On November 5, 2012, Petitioner's counsel filed a motion to dismiss voluntarily the Petition for PCR. (Doc. 11-3 at 41-45) An unsigned affidavit attached to this motion was drafted for Petitioner to aver that he had undergone two psychological evaluations while incarcerated[2] and wished to dismiss his petition. (Id. at 44) Petitioner's counsel stated that the attached affidavit had not been signed by Petitioner because a notary public had not been available the evening counsel had met with Petitioner at the Yuma prison. (Id. at 42) Counsel assured the superior court that he would obtain a signed and notarized affidavit within the week so that an order dismissing the action could be entered expeditiously. (Id.) However, on November 30, 2012, Petitioner's counsel filed a subsequent motion requesting that Petitioner's motion to voluntarily dismiss be stricken. (Id. at 49) Counsel stated that although he “found no viable grounds to file a Petition, ” Petitioner had “changed his mind, and desires to file a Petition.” (Id.)[3]Counsel declared that he expected to be in a position very shortly to file a Notice of Completion. (Id. at 50) Counsel filed the Notice of Completion on December 10, 2012. (Id. at 53) Counsel noted that the Rule 26.5 psychological evaluation found that Petitioner was competent to stand trial. (Id.) He then declared:

[u]ndersigned counsel believed that the [Petitioner] was indeed incompetent, and arranged for two independent psychological evaluations. Based on the results of these evaluations, it has become apparent that counsel no longer has the ability to ethically file a Petition regarding the Defendant's competency, which was counsel's original, and continuous intent.

(Id. at 53-54) Counsel averred that “[a]fter three psychological evaluations, and counsel's extensive review of this case, counsel can find no viable claims to pursue.” (Id.) Pursuant to Rule 32(c), counsel asked the superior court to permit Petitioner an additional 45 days to file “any pro per petition he desires.” (Id. at 55) The superior court granted Petitioner the additional time requested, and ordered counsel to provide Petitioner with a copy of all records pertaining to his case. (Id. at 59)

         Petitioner filed his pro per “supplemental or amended petition” for PCR on January 22, 2013. (Id. at 64-83) Petitioner raised three ...


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