Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Keno v. State

United States District Court, D. Arizona

April 26, 2018

Artie Keno, Petitioner,
v.
State of Arizona, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable D. Thomas Ferraro United States Magistrate Judge

         Petitioner Artie Keno (Petitioner), formerly incarcerated at the Arizona State Prison Complex - Cook Unit in Florence, Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Amended Petition). Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 11.) Before the Court are Petitioner's Amended Petition (Doc. 9) and Respondent's Limited Answer to Petition for Writ of Habeas Corpus (Doc. 14). As explained below, the Magistrate Judge recommends that the District Court, after its independent review of the record, dismiss the Petition.

         Factual and Procedural Background

         Petitioner's State Court Plea and Sentencing

         On October 12, 2015, Petitioner was charged by the State of Arizona (State) with possessing a dangerous drug, a class 4 felony (Count 1) and possessing drug paraphernalia, a class 6 felony (Count 2). (Doc. 14-1 at Ex. A.) The State filed an allegation that Petitioner had previously been convicted of numerous felonies. (Doc. 14-1 at Ex. B.) On January 18, 2015, Petitioner entered into a stipulated plea agreement whereby he pleaded guilty to Count 1 as charged in the indictment. Id. at Ex. C. The State agreed to dismiss Count 2 and did not pursue the allegation of priors. Id.

         In Arizona, the factual basis for a guilty plea may be ascertained from a presentence report. State v. Varela, 587 P.2d 1173, 1175 (Ariz. 1978). Here, the factual basis for the plea agreement, taken from the presentence report, provides:

On October 1, 2015, at approximately 8:42 p.m., officers with the Tohono O'odham Police Department responded to the Desert Diamond Casino located in the 1100 block of West Pima Mine Road in reference to a call from the casino surveillance concerning the suspected use of drugs in the parking lot. Upon arrival, officers viewed video coverage of a male passenger riding in a light gray sedan circling then stopping in the parking lot. The passenger appeared to smoke a substance from a pipe. A short time later, the passenger exited the vehicle and entered the casino. The driver of the vehicle departed the property before police were called.
Security advised the suspect was seated at a slot machine. Officers contacted the suspect, who was identified as [Petitioner]. He exhibited signs and symptoms of alcohol intoxication. Officers escorted [Petitioner] to the restroom. While he was in the restroom, he reached into his right pocket and withdrew a small white container. As [Petitioner] was being escorted out to the front entrance of the casino, he swung his arm tossing the white container onto the casino floor. He was subsequently arrested and transported to the police substation.
During a search incident to arrest, a glass smoking pipe and approximately 11.3 grams of methamphetamine[, including packaging, ] were found in [Petitioner's] possession. He was transported and booked into the Pima County Adult Detention Center[.] He was also served with several fugitive warrants out of New Mexico.

(Doc. 14-1 at Ex. E, p. 3.) Before entering into the plea agreement Petitioner acknowledged that he understood the plea would subject him to a prison term ranging from 1 to 3.75 years. (Doc. 14-1 at Ex. E, p. 1.) Petitioner then formally pleaded guilty and the trial court accepted his plea. Id. at Ex. D.

         On January 5, 2016, Petitioner was sentenced by the Arizona Superior Court, Pima County to a slightly mitigated 2-year term of imprisonment in accordance with the terms of the plea agreement. Id. at Exs. F, H. The trial court advised Petitioner of his right to file a petition for post-conviction relief. Id. at Ex. G. Petitioner failed to file a petition for post-conviction relief. Id. at Ex. I.

         Petitioner's Amended Habeas Petition

         On November 11, 2016, Petitioner filed a petition for a writ of habeas corpus. (Doc. 1.) On January 12, 2017, the Court dismissed the petition and allowed Petitioner 30 days to file an amended petition. (Doc. 8.) On January 25, 2017, Petitioner filed his Amended Petition. (Doc. 9.) In Grounds One and Two on the Amended Petition, Petitioner argues that the trial court did not have jurisdiction to convict and sentence him. Id. at pp. 6-7. In Ground Three of the Amended Petition, Petitioner styles his claim for habeas relief as having been “kidnaped” and unlawfully arrested and imprisoned by the State. Id. at 8. In Ground Four of the Amended Petition, Petitioner argues that the trial court, prosecutor, and defense counsel “conspired with one another to defeat the inalienable rights of the accused.” Id. at p. 9.

         As explained below, Petitioner waived his claims by pleading guilty. Additionally, all of the grounds for relief alleged in the Amended Petition are procedurally defaulted ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.