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Flores v. Ryan

United States District Court, D. Arizona

February 6, 2018

Julien Jesus Flores, Petitioner,
v.
Charles Ryan, et al., Respondents.

          ORDER

          HONORABLE ROSEMARY MARQUEZ, UNITED STATES DISTRICT JUDGE

         On February 19, 2015, Petitioner Jesus Flores filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“§ 2254 Petition”). (Doc. 1.) Respondents filed a Limited Answer on July 13, 2015. (Doc. 14.) Petitioner filed a Reply on August 20, 2015. (Doc. 15.) This Court referred the matter to Magistrate Judge Eric J. Markovich for a Report and Recommendation (Doc. 6 at 3), [1] but it later withdrew the reference (Doc. 20).

         I. Factual and Procedural Background

         In Pima County Superior Court case number CR 20121522, Petitioner pled guilty to illegal control of an enterprise, money laundering, conspiracy to possess marijuana for sale, conspiracy to possess narcotic drugs for sale, conspiracy to possess dangerous drugs for sale, use of an electronic communication in a drug-related transaction, possession of a deadly weapon by a prohibited possessor, and forgery. (Doc. 1-1 at 3-4.)[2] As part of his plea agreement, Petitioner agreed to cooperate in the prosecution of two cases, and the State agreed to advise the sentencing court “of the nature, extent, and value” of Petitioner's cooperation. (Id. at 6.) The written plea agreement includes a provision stating that Petitioner agreed he was giving “up any motions, defenses or other matters which have been or could be asserted in this case regardless of their merit.” (Id. at 9.)

         The Honorable Michael O. Miller held a change of plea hearing on October 29, 2012. (Doc. 1-1 at 12.)[3] During the hearing, Judge Miller informed Petitioner that, by entering into the plea agreement, he was agreeing to a prison range of 10.5 to 18 years. (Id. at 17.) He explained that the State had agreed that the sentencing court could “consider [Petitioner's cooperation] as a mitigating factor, ” but that only the sentencing court could “determine whether something is a mitigating factor and should result in a lesser sentence” under the plea agreement. (Id. at 24.) Petitioner inquired as to what would happen if the State “didn't meet up to their end of the agreement, ” and Judge Miller indicated that Petitioner could move to withdraw from the plea agreement under those circumstances. (Id. at 25-26.) Judge Miller then asked Petitioner if anyone had made him any threats or promises to get him to enter into the plea agreement. (Id. at 29.) Petitioner responded: “Not threats. I mean not promise. But like we had discussed about mitigating-asking for the least sentence for testifying.” (Id.) Judge Miller stated that he understood, and then asked if anyone had made Petitioner promises not contained in the plea agreement. (Id.) Petitioner responded “No.” (Id.) Judge Miller found that the plea was entered into knowingly, intelligently, and voluntarily. (Id. at 39.)

         Prior to Petitioner's sentencing hearing, the Supreme Court issued Florida v. Jardines, 569 U.S. 1 (2013), which holds that a trained police dog's investigation of the curtilage of a home is a search within the meaning of the Fourth Amendment. The results of a narcotic detection canine's warrantless investigation of the curtilage of Petitioner's residence were used to obtain a search warrant for the residence. (See Doc. 1-1 at 54-57.) Evidence obtained during execution of the search warrant appears to have formed the basis of the charges against Petitioner. Accordingly, Petitioner advised his trial attorney, Brick Storts, that he wished to withdraw from his plea agreement and move to suppress evidence based on Jardines. Mr. Storts moved to continue Petitioner's sentencing hearing on the grounds that he needed additional time to determine whether it would be appropriate to move to withdraw from the plea agreement based on Jardines. (Doc. 1-1 at 1-2.) The State opposed the Motion to Continue, arguing that a plea agreement properly entered into should not be set aside because of changes in the law occurring after the plea. (Doc. 1-1 at 75-77.) It appears that the Motion to Continue was denied, although neither party has submitted a copy of the trial court's ruling on the Motion. Mr. Storts never filed a motion to withdraw plea or a motion to suppress evidence.

         Petitioner's sentencing hearing was held before the Honorable Scott H. Rash. The record contains only a partial transcript of the hearing. (Doc. 1-1 at 41-53; Doc. 14-1 at 20-32.) The partial transcript does not reflect any discussion of Jardines, but it does show that, during his sentencing hearing, Petitioner explained to Judge Rash that, when he entered into his plea agreement, his understanding was that the State had promised to request that he receive the mitigated prison sentence of 10.5 years. (Doc. 1-1 at 43-47.) Petitioner averred that he would not have entered into the plea agreement if not for his understanding that the State would request the mitigated sentence. (Id. at 44, 51.) The prosecutor responded that he had never promised to make a specific sentencing recommendation and that, if he had, it would be written in the plea agreement. (Id. at 48-49.) The prosecutor further stated that he had never intended to foreclose his ability to argue that Petitioner deserved an aggravated sentence of 18 years-which is apparently what he did, although the portion of the transcript containing the prosecutor's sentencing recommendation does not appear in the record before this Court. (Id. at 49.) Defense attorney Storts stated that the prosecutor had told him “he would not be opposed to the concept of a recommendation of a sentence” of 10.5 years, but that the prosecutor had not promised to request such a sentence. (Id. at 49-50.) Judge Rash asked Petitioner if he wished to withdraw from his plea agreement, and Petitioner stated that he did. (Id. at 51-52.) The prosecutor argued that there was no basis to continue Petitioner's sentencing hearing because a motion to withdraw from the plea agreement would be baseless. (Id. at 52.) Judge Rash then proceeded to sentence Petitioner. (Id. at 52-53.) Judge Rash found in aggravation that Petitioner's crimes were done for pecuniary gain and in the presence of accomplices. (Id.) He found that Petitioner's cooperation, remorse, and acceptance of responsibility were mitigating factors. (Id. at 53.) He sentenced Petitioner to the presumptive terms on each count, with the longest term being 15.75 years, and with all sentences running concurrent. (Id.)

         Petitioner, through post-conviction attorney Anne Elsberry, filed his of-right Rule 32 Petition for Post-Conviction Relief (“PCR Petition”) on December 18, 2013. (Doc. 14-1 at 2-11.) In the PCR Petition, Petitioner argued that his entry into the plea agreement that resolved his case was not knowing, intelligent, and voluntary, because at the time he entered into the plea he had been told by the prosecutor and his attorney that the State would support the mitigated sentence of 10.5 years, but that the State at sentencing requested the aggravated sentence of 18 years. (Id. at 2, 4-6.) Petitioner argued that he should have been allowed to withdraw from his plea agreement when the State breached its promise to request the mitigated sentence. (Id. at 7.) Petitioner also argued that trial counsel was ineffective in failing to file a motion to suppress and failing to request that Petitioner be allowed to withdraw from his plea agreement based on Jardines. (Id. at 2-4, 7-10.) The State responded on January 3, 2014. (Id. at 13-19.)

         On January 8, 2014, Petitioner filed a pro se Motion to Supplement his PCR Petition. (Doc. 1-1 at 78-80.) In the Motion, Petitioner argued that: (1) his conviction was obtained in violation of his Fourth Amendment rights because the fruit of an illegal search was used to obtain a search warrant of his residence; (2) trial counsel rendered ineffective assistance in violation of Petitioner's Sixth Amendment rights by failing to file a motion to suppress both before and after the Supreme Court's ruling in Jardines; (3) trial counsel rendered ineffective assistance by telling Petitioner that the State had agreed to request a minimum sentence of 10.5 years; (4) Petitioner did not enter into his plea agreement knowingly, intelligently, and voluntarily; (5) the plea agreement was induced by the State's promise to request the minimum sentence of 10.5 years; (6) the plea agreement was induced by the State's use of illegally obtained evidence; and (7) the Supreme Court recognized a new constitutional principle and significantly changed the law when it rendered its decision in Jardines. (Id. at 79-80.) On February 11, 2014, Petitioner filed a Pro Se Supplement to the PCR Petition, in which he elaborated upon the arguments contained in his Motion to Supplement. (See Doc. 14-1 at 34-38.) Neither party submitted a copy of the trial court's ruling on Petitioner's Motion to Supplement, but the ruling on the PCR Petition indicates that the trial court denied leave to file a pro se Reply but nevertheless reviewed Petitioner's pro se Reply. (Doc. 1-1 at 81 n.1.)[4]

         Judge Rash dismissed Petitioner's PCR Petition on February 14, 2014. (Doc. 1-1 at 81-82.) He found that the record did not support Petitioner's argument that the State had agreed to recommend a mitigated sentence. (Id. at 81.) Judge Rash noted that, at his change of plea hearing, Petitioner stated that no one had made him any promises that were not contained in the plea agreement. (Id.) Judge Rash further noted that, even if the State had recommended a mitigated sentence of 10.5 years, the court would not have imposed it based on the contents of the presentence report. (Id.) With respect to Petitioner's ineffective assistance of counsel argument, Judge Rash found that, by entering into his plea agreement, Petitioner expressly waived any right to raise all motions, defenses, and objections that he had asserted or could assert. (Id. at 82.) Judge Rash further found that a plea agreement should not be set aside because of changes in the law occurring after the plea. (Id.) Accordingly, Judge Rash held that trial counsel's decision to not file a motion to suppress and to not move to withdraw from the plea did not fall below an objective standard of reasonableness. (Id.)

         A paralegal to Petitioner's PCR attorney sent Petitioner a letter dated May 30, 2014. (Doc. 14-2 at 27; Doc. 15 at 16.) The letter indicates that a copy of the trial court's PCR ruling is enclosed, and then states:

I apologize for the delay in getting this to you; however, we did not receive a copy of the Ruling from the court back in February. We did not receive this until today after I called the court to check on the status of the ruling.

(Doc. 14-2 at 27; Doc. 15 at 16.)

         On June 11, 2014, Petitioner filed a pro se Motion requesting permission to file a Petition for Review of the PCR ruling. (Doc. 14-2 at 29-30.) In the Motion, Petitioner stated that he received his PCR counsel's letter containing a copy of the PCR ruling on June 1, 2014. (Id. at 29.)[5] After summarizing the contents of the letter, Petitioner requested that the court toll the 30-day deadline for filing a Petition for Review so that the period for seeking review would commence on the date that Petitioner received notice of the PCR ruling. (Id. at 30.) On June 16, 2014, Judge Rash denied the Motion, without explanation and without citation to facts or authority. (Id. at 32.)

         On July 14, 2014, Petitioner filed a pro se Petition for Review (Doc. 14-2 at 2-25) and a pro se Motion to Extend Time to File a Petition for Review (id. at 34-36) in the Arizona Court of Appeals. In the Petition for Review, Petitioner raised substantially the same arguments that he raised in his PCR Petition and pro se supplemental filings. In the Motion to Extend Time, Petitioner asked the Court of Appeals to accept his Petition for Review and argued that his delay in filing the Petition was not due to his own neglect but, rather, due to the trial court's delay in sending a copy of its PCR ruling to Petitioner and his PCR attorney. (Id. at 34-36.) On July 23, 2014, the Arizona Court of Appeals summarily dismissed the Petition for Review after holding-without explanation or citation to authority-that it was without jurisdiction to rule on the Motion to Extend Time. (Id. at 38.)

         Petitioner filed the pending § 2254 Petition on February 19, 2015. (Doc. 1.) In the Petition, Petitioner raises the following claims: (1) trial counsel was ineffective in (a) providing Petitioner with erroneous advice regarding the effects of his plea agreement, and (b) failing to move to withdraw from the plea agreement after the Supreme Court issued Jardines; (2) the State violated the terms of Petitioner's plea agreement by failing to request a mitigated sentence based on Petitioner's cooperation in two cases;[6] (3) Petitioner should have been allowed to withdraw from his plea agreement and file a motion to suppress based on Jardines. (Doc. 1 at 6-16.)

         II. Legal Standard

         Because Petitioner's § 2254 Petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this case is governed by AEDPA. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).

         A § 2254 petition subject to AEDPA cannot be granted unless it appears that (1) the petitioner has exhausted all available state-court remedies, (2) there is an absence of available state corrective process, or (3) state corrective process is ineffective to protect the rights of the petitioner. See 28 U.S.C. § 2254(b)(1); Coleman v. Thompson, 501 U.S. 722, 731 (1991). To properly exhaust state-court remedies, the petitioner must “fairly present” his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). In Arizona, a defendant who pleads guilty in a non-capital case waives his right to a direct appeal, and Rule 32 proceedings become the sole available avenue for exercising the defendant's constitutional right to appellate review. Arizona v. Pruett, 912 P.2d 1357, 1359-60 (Ariz. App. 1995); see also Ariz. R. Crim. P. 32.1. In cases not carrying a life sentence or the death penalty, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (per curiam).

         A claim is fairly presented if the petitioner has described the operative facts and the federal legal theory on which the claim is based. See Picard v. Connor, 404 U.S. 270, 277-78 (1971). A petitioner must make the federal basis of the claim explicit by citing specific provisions of federal law or federal case law or by citing state cases that explicitly analyze the same federal constitutional claim. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003); Gatlin v. Madding, 189 F.3d 882, 887-88 (9th Cir. 1999).

         A claim is considered procedurally defaulted and thus precluded from federal review if (1) the claim was not presented in state court and no state remedies are currently available because the court to which the petitioner would be required to present the claim in order to meet the exhaustion requirement would find the claims procedurally barred under state law, or (2) the petitioner raised the claim in state court but the state court rejected the claim based on “independent” and “adequate” state procedural grounds. See Coleman, 501 U.S. at 729-32, 735 n.1; see also Beard v. Kindler, 558 U.S. 53, 55 (2009). “For a state procedural rule to be independent, the state law basis for the decision must not be interwoven with federal law.” Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003) (internal quotation marks omitted); see also Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam). “To be deemed adequate, the state law ground for decision must be ...


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