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Martin v. Ryan

United States District Court, D. Arizona

April 17, 2018

Braulio Trejo Martin, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

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

         Braulio Trejo Martin (“Martin” or “Petitioner”) filed his federal habeas petition pursuant to 28 U.S.C. § 2254 (“Petition”) on July 5, 2017, challenging his sentence entered by the Maricopa County Superior Court. (Doc. 1) For the reasons set forth below, the undersigned Magistrate Judge recommends that this Court deny and dismiss the Petition as untimely filed pursuant to 28 U.S.C. § 2244(d).

         I. BACKGROUND

         A. State Trial Court Proceedings

         Petitioner was indicted in July 2010 on eight counts arising from his conduct with his young granddaughter in 2008 and 2009. (Doc. 13-1 at 4-7) The indictment alleged: four counts of sexual conduct with a minor, a Class 2 felony; two counts of sexual abuse, a Class 3 felony; and two counts of molestation of a child. (Id.) Petitioner participated in two settlement conferences, one on November 17, 2010, and one on April 1, 2011, in which he was represented by counsel and assisted by a court interpreter. (Id. at 20-51, 65-80) The State advised Petitioner he would face a minimum sentence of 150 years' imprisonment if convicted on all eight counts. (Id. at 28) At the conclusion of the first two settlement conferences, Petitioner was undecided whether he wished to accept a plea offer. (Id. at 49-51, 79-80)

         On April 20, 2011, the last day to accept a plea agreement, the superior court held a final trial management conference in anticipation of Petitioner's trial set for May 3, 2011. (Id. at 95-121) Petitioner still had not given a definitive answer on whether he wished to accept the offered plea agreement or not. (Id. at 97-98) Petitioner at first stated that he wished to retain a private attorney, and requested additional time to “look for one.” (Id. at 98) The superior court advised Petitioner that he was free to retain an attorney and go to trial on May 3, or to take the offered plea agreement, which would expire that day. (Id. at 98-99) About the denial of a continuance for Petitioner to obtain a new attorney, the superior court judge stated, “We have discussed everything. We had discussions about whether you were going to get a different attorney at a different time, and I'm not going to delay this trial any longer.” (Id. at 99) Petitioner's appointed counsel explained that he had negotiated a favorable plea offer with the State with a sentencing range between ten (10) and twenty-four (24) years. (Id. at 102) The superior court judge told Petitioner, “[T]oday is the last day that you can accept the plea. If you are confident that you want to go to trial, then that is fine. There's no pressure for you not to go to trial. But I just need to know because counsel need to be able to prepare and be ready to present this case, both from the State's side and the defense side of trial.” (Id. at 100) Petitioner decided to take the plea agreement. (Id. at 103-120)

         Petitioner signed the plea agreement, and initialed each of its enumerated terms. (Id. at 86-88) The Court conducted a standard and complete plea colloquy. (Id. at 103-120) Petitioner pleaded guilty to: Count 1 of the indictment, Molestation of a Child, a Class 2 felony; Count 6, Attempted Molestation of a Child, a Class 3 felony; and Count 7, Attempted Molestation of a Child, a Class 3 felony. (Id. at 86, 103-120) Each count to which Petitioner plead guilty was a dangerous crime against children. (Id.) The actions underlying the counts occurred when the victim was 6, 7, and 8 years old, respectively. (Id.)

         At Petitioner's sentencing hearing on June 2, 2011, the State argued a number of aggravating factors, including: the victim's young age; the victim's allegations of vaginal and anal penetration, and oral sex; the victim's allegation that Petitioner gave her some type of sedative or drug in committing the charged acts; the victim's suffering of emotional harm; and abuse by a person in a position of trust. (Doc. 13-2 at 16-17) The State recommended an aggravated sentence of 24 years. (Id. at 17)

         Petitioner's counsel argued that Petitioner had accepted responsibility for his actions and had admitted to the police the actions on which his plea agreement was based. (Id. at 18) He further noted that Petitioner had no criminal record other than a misdemeanor DUI. (Id.) Petitioner's counsel reminded the court that Petitioner had been working and sending money to support his wife and children in Mexico. (Doc. 13-2 at 19) Additionally, defense counsel advised the court that Petitioner had been screened by the adult probation department and was assessed as lowest level sex offender, Level 1. (Id.) In light of Petitioner's age, 57 (Id. at 15), defense counsel noted that recidivism after the age of 65 was extremely low, and that upon release from custody, Petitioner was likely to be deported (Id. at 20). Petitioner's counsel requested imposition of a sentence of less than the presumptive term of 17 years. (Id.)

         As aggravating factors, the judge discussed the very young age of the victim, that Petitioner had molested the victim over an extended period and had afforded Petitioner “plenty of time to reflect upon the wrongness of his conduct, yet he continued[, ]” that Petitioner's actions had shattered a number of familial relationships, the resultant harm to the victim and her family, the nature of the molestations “that included penile/vaginal, penile/anal penetration[, ]” and that Petitioner had not really accepted responsibility when he told the police the victim had been the aggressor. (Id. at 21) The judge found a single mitigating factor, that Petitioner had a minimal criminal history. (Id.)

         The judge found the aggravating factors “far outweigh[ed]” the mitigating factors, and sentenced Petitioner to an aggravated sentence of 24 years' imprisonment, with credit for presentence incarceration of 336 days, and ordered him to register as a sex offender. (Id. at 21-22) The judge advised Petitioner he could seek review of the court's orders by filing a petition for post-conviction relief (“PCR”) within 90 days, or else he would lose the right to seek such review. (Id. at 22) He also told Petitioner that if he did not have enough money to afford an attorney, or to obtain transcripts or other papers necessary to file a PCR, these would be “supplied to [him].” (Id. at 23)

         B. Appeal and PCR Proceedings

         Petitioner did not appeal his conviction and sentence, which he could not do, in any event, because he was convicted by plea agreement.[1] Petitioner timely filed a notice of Post-Conviction Relief (“PCR”) with the trial court on August 22, 2011, and requested an attorney. (Id. at 42-44) On April 30, 2012, his appointed counsel filed a Notice of Completion of Post-Conviction Review by Counsel (Id. at 50-51), averring he had reviewed the record and was unable to identify any claims for relief. (Id. at 50) He requested the court to allow Petitioner an extension of 45 days to enable Petitioner to file a pro per PCR petition. (Id. at 51) The trial court granted Petitioner 45 days from May 7, 2012 to file his pro per petition. (Doc. 13-2 at 53) On May 14, 2012, Petitioner's PCR counsel filed a notice of compliance and stated he had sent all of Petitioner's documents in counsel's possession to Petitioner. (Id. at 56-57) After Petitioner failed to file a pro per PCR petition, the superior court dismissed his PCR proceeding on August 2, 2012; the dismissal was electronically filed on August 3, 2012. (Id. at 59)

         Almost two years later, on June 2, 2014 (signed on May 30, 2014), Petitioner filed with the superior court a request for extension of time to file his pro per PCR petition. (Id. at 61-63) Petitioner advised the court his appointed counsel had “withdrawn” from his case on April 30, 2014.[2] (Id. at 61) Petitioner declared the he had spent “the last few weeks asking other inmates to review the record sent to him by former counsel in order to explain his case, discuss potential issues and to decide how best to pursue his [PCR action].” (Id. at 62) The superior court denied Petitioner's request because his prior PCR proceeding had been dismissed in August 2012, and Petitioner had no active PCR proceeding. (Id. at 65)

         On August 5, 2014, Petitioner appears to have submitted to the superior court a motion to file a PCR petition nunc pro tunc, arguing that because the court's order giving him 45 days to file his PCR petition pro per was in English, as was his record, he was unable to comply with the June 2012, deadline to file a petition. (Doc. 15)

         On August 13, 2014 (signed on August 5, 2014), Petitioner filed another notice of PCR with the superior court (Id. at 67-69), along with a Petition for PCR (Id. at 71-93) Petitioner stated he had not timely raised the issues in this petition because he “is an illiterate Spanish-speaking inmate whom had no assistance from the courts, counsel, the State or the [Arizona Department of Corrections].” (Id. at 74)

         In the Petition for PCR, Petitioner argued the trial court violated his Fourteenth Amendment rights to due process and equal protection by using essential elements of his offenses to aggravate his sentence, and by failing to find these factors by a preponderance of the evidence. (Id. at 80-86) Next, Petitioner asserted that his trial counsel was ineffective when he: (1) failed to object to either the judge's use of elements of the offense for aggravation purposes, or to the absence of evidence establishing that the victim and her family suffered emotional harm (Id. at 87); and (2) did “very little” to present mitigation evidence at his sentencing, and failed to advise him he could have family and friends appear to speak on his behalf (Id. at 88). Petitioner also argued he received ineffective assistance of counsel by appellate counsel (PCR proceeding) because counsel: (1) failed to raise any colorable claim on Petitioner's behalf; and (2) notified Petitioner in English that he had 45 days to file a pro per petition, when he was aware that Petitioner could not read or write English. (Doc. 13-2 at 89-90) Petitioner further argued that the U.S. Supreme Court's holding in Martinez v. Ryan, 566 U.S. 1 (2012) permitted a claim of ineffective assistance of counsel “during initial review collateral proceedings [to] overcome a procedural default[.]” (Id. at 80) Petitioner requested the superior court to appoint him counsel to supplement his claims and to hold an evidentiary hearing. (Id. at 90-91)

         On September 7, 2014, the superior court denied Martin's PCR as “both untimely and successive.” (Doc. 13-3 at 2-3) The court noted that Martinez v. Ryan “does not provide relief at the state court level.” (Id. at 2) The court held that Petitioner's claims did not qualify under Arizona Rule of Criminal Procedure 32.4(a) for untimely filing, because they did not fall within the grounds for relief identified in Rule 32.1(d), (e), (f), (g), or (h). (Id. at 3) Accordingly, the court dismissed both Petitioner's notice of PCR and his associated petition for PCR. (Id.)

         Martin petitioned for review to the Arizona Court of Appeals in October 2014. (Id. at 5-18) He explained that after he had filed his initial notice of PCR, after his appointed counsel had filed a notice of compliance, and the superior court had ordered him to file a pro per PCR petition within 45 days, he needed to have the court's order translated from English by another inmate. (Id. at 9) He complained that he did not understand what a pro per petition was, and did not realize that he could ask for help from a fellow inmate, and that his lack of understanding resulted in his failure to timely file his pro per petition and subsequent dismissal of his PCR action by the superior court. (Id.) Petitioner argued the trial court had erred in holding there is no Constitutional right to effective assistance of counsel in state post-conviction relief proceedings, and abused its discretion when it failed to address his motion to file his petition nunc pro tunc. (Id. at 10-11) Petitioner contended the superior court should have been “obligated to review the record for fundamental error after appointed counsel [withdrew] from [his] case, just as the appellate courts are required to do when appellate counsel files an Anders brief pursuant to State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969).” ...


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