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Lewis v. Ryan

United States District Court, D. Arizona

March 6, 2018

James Francisco Lewis, Petitioner,
Charles Ryan, et al., Respondents.



          Honorable John Z. Boyle United States Magistrate Judge.

         Petitioner James Francisco Lewis has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)


         Petitioner 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 prejudice.

         II. BACKGROUND.

         a. Facts of the Crimes.

         The Presentence Report includes a summary of the underlying facts of Petitioner's crimes[1]:

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.)

         b. Settlement Conference.

         On 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.)

         On 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.)

         On 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.)

         c. Plea and Sentencing.

         On 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.)

         On 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.)

         d. Post-Conviction Relief Proceedings.

         On June 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 ...

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