United States District Court, D. Arizona
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge.
James Francisco Lewis has filed a pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
SUMMARY OF CONCLUSION.
raises two grounds for relief in his timely Petition.
Petitioner's Fourth Amendment claims in Ground One are
waived as a result of his guilty pleas. The claims are also
not cognizable on habeas review. Petitioner's claims in
ground two allege ineffective assistance of counsel, which
are unexhausted and procedurally defaulted. Petitioner did
not show excuse from procedural default. Therefore, the Court
will recommend that the Petition be denied and dismissed with
Facts of the Crimes.
Presentence Report includes a summary of the underlying facts
of Petitioner's crimes:
On August 1, 2015, Phoenix police officer B. Miller observed
[Petitioner] driving on the I-17 freeway traveling at the
speed of thirty-five miles per hour in a posted sixty-five
miles per hour area and swerving back and forth over two
lanes. . . .
. . . Officer Miller noticed an odor acidic [sic] believed to
be PCP. He also observed ashes on [Petitioner's] chest
and pants and noticed [Petitioner's] speech was slurred
and slow to react. After backup units arrived, [Petitioner]
was asked to exit the vehicle for further investigation.
[Petitioner] exited the vehicle extremely slow [sic] and used
the vehicle for balance. Officer Miller immediately conducted
a search on [Petitioner] and located [a] pill bottle in the
front left pants pocket, which later tested positive for a
small amount of methamphetamine . . . and several oxycodone
pills. [Petitioner] was then given multiple field sobriety
tests which he failed. . . . In order to determine whether
the defendant was under mind altering drugs or alcohol he was
asked to submit to a portable breathalyzer test, which
resulted in a 0.00 alcohol concentration.
While Officer Miller was questioning [Petitioner], Officer
Mullen asked the passengers to exit the vehicle so he could
begin searching it. . . Officer Mullen confiscated the
cigarettes, [which] were later tested and found to be
positive for PCP. . .
(Doc. 13-1, Ex. K, at 1-2.) Testing revealed Petitioner was
“under the influence of dis[so]ciative anesthetics and
[Central Nervous System] stimulants.” (Doc. 13-1, Ex.
A, at 4-5.) Petitioner also “had in [his] possession a
small quantity of meth.” (Id.)
August 10, 2015, Petitioner was indicted on six counts. (Doc.
13-1, Ex. B, at 12-14.) On September 24, 2015, the
prosecution filed an allegation that Petitioner had five
prior felony convictions. (Doc. 13-1, Ex. D, at 19-21.)
February 9, 2016, Petitioner filed a motion to change
counsel. (Doc. 1-1, at 30.) Petitioner alleged his attorney
failed to argue Fourth Amendment and Arizona Rules of
Criminal Procedure violations. (Doc. 1-1 at 32-35.) He also
alleged he had “only talked to [his attorney] two times
within the 6 months of him being on [Petitioner's]
case.” (Id. at 3-4.)
February 12, 2016, in the morning, a settlement conference
was held that concluded with the Petitioner agreeing to a
plea offer. (Doc. 13-1, Ex. X, at 101.) During the
conference, defense counsel told the court that Petitioner
“does have some issues that he would like to address
with respect to constitutionality issues regarding, let's
say for instance, stops, searches, things of that
nature.” (Doc. 13-1, Ex. X, at 114.) Petitioner
questioned why the police officer did not immediately pull
him over after observing Petitioner driving 35 miles per hour
in a 65 mile-per-hour zone (id. at 116) and
“swerving” in the roadway (id. at 121).
Petitioner questioned the legality of the searches of his
person and vehicle. (Id. at 124-127.) The
prosecution advised the plea offer would be available for one
additional week. (Id. at 132.) Petitioner
immediately advised that he was willing to enter a plea that
day. (Id. at 133.) The Petitioner stated:
That's what I -- that's what I was aiming for. You
know, I -- I don't want you to get it wrong or -- or --
or your, Your Honor. I've been trying to take
responsibility and make a change in my life, I've been
trying to take classes, I've got the proof for that, to
show you. And if I could be frank and candid all at the same
time, I don't believe that I was arrested, I believe that
I was rescued, you know? That would have been my first
experience with methamphetamine and I think that it would
have been a bad outcome, honestly.
(Doc. 13-1, Ex. X, at 133.) The court set the change of plea
proceeding for the afternoon. (Id. at 36.)
Plea and Sentencing.
February 12, 2016, in the afternoon, Petitioner returned to
court to plead guilty pursuant to a plea agreement. (Doc.
13-1, Ex. Y, at 139.) Petitioner entered a plea agreement
whereby Petitioner agreed to plead guilty to misdemeanor DUI
(Count 3) and Possession of Dangerous Drugs, a class 4 felony
(amended Count 4) with one prior felony conviction. (Doc.
13-1, Ex. J, at 38-40.) The prosecution agreed to dismiss the
remaining counts and allegation of additional prior felony
convictions. (Id. at 39.)
March 23, 2016, Petitioner was sentenced to three years of
imprisonment for Count 4, and 30 months of probation for
Count 3. (Doc. 13, Ex. N, at 64-65.) At the sentencing
hearing, Petitioner said
Your Honor, on the night of August 1st, 2015, he was - when I
was pulled over by the Phoenix Police Department, I just
wanted them to make note that a lot of the stories in that
report [are] definitely fabricated. But, nevertheless,
nevertheless, I do realize that I have broke[n] the law.
(Doc. 13-1, Ex. Z. at 175.) “Nevertheless, as far as it
goes, I'm truly very remorseful for breaking the law.
Rather it was a dime or a hundred dollars' worth
methamphetamine, still against the law and I acknowledge
that.” (Id. at 176-177.)
Post-Conviction Relief Proceedings.
6, 2016, Petitioner filed a Notice of Post-Conviction Relief,
claiming ineffective assistance of counsel. (Doc. 13-1, Ex.
O, at 72.) On November 28, 2016, Petitioner's counsel
filed a Notice of Completion of Post-Conviction Review
stating that “counsel is unable to find any claims for
relief to raise in post-conviction relief proceedings”
and requesting an extension of time for Petitioner to file a
pro se Rule 32 petition. (Doc. 13-1, Ex. R, at 82.) On