United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge
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.
and Procedural Background
State Court Plea and Sentencing
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.
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
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.
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.
Amended Habeas Petition
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.
explained below, Petitioner waived his claims by pleading
guilty. Additionally, all of the grounds for relief alleged
in the Amended Petition are procedurally defaulted ...