United States District Court, D. Arizona
G. Campbell United States District Judge.
Bulmaro Soto-Portillo filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, alleging
four grounds for relief. Doc. 1. Respondents filed an answer
on February 6, 2017, and a record supplement on February 15,
2017. Docs. 13, 15. Petitioner filed a reply on March 6,
2017. Doc. 18. At the Court's direction, Respondents
filed two supplemental answers in July and November 2017.
Docs. 22, 24. Petitioner was given multiple opportunities to
reply, but did not do so. See Docs. 21, 23, 25.
February 23, 2018, Magistrate Judge James F. Metcalf issued a
Report and Recommendation (“R&R”) that the
Court dismiss Ground Three without prejudice and deny the
remaining grounds. Doc. 26. Respondents filed an objection to
the R&R's dismissal of Ground Three without
prejudice. Doc. 27. Petitioner's time to respond or to
file his own objection has expired. See Fed. R. Civ.
P. 72(b)(2). The Court will deny the objection and adopt
Judge Metcalf's recommendation.
was convicted by a jury in Maricopa County Superior Court of
armed robbery, aggravated assault, burglary, theft, and six
counts of kidnapping. Doc. 26 at 2. His sentence, taking into
account concurrent and consecutive terms, was 27.5 years of
imprisonment. Id. at 2-3. His convictions and
sentences were affirmed on direct appeal by the Arizona Court
of Appeals. See State v. Soto-Portillo, No. 1 CA-CR
11-0493, 2012 WL 6599808 (Ariz.Ct.App. Dec. 18, 2012). His
petition for post-conviction relief was denied, and the Court
of Appeals affirmed. See State v. Soto-Portillo, No.
1 CA-CR 14-0476 PRPC, 2016 WL 4193913 (Ariz.Ct.App. Aug. 9,
Three asserts that trial counsel was ineffective by providing
inadequate advice to Petitioner before he rejected a
favorable plea offer. Doc. 1 at 8. Specifically, Petitioner
alleges that he rejected the offer on the basis of an
incorrect understanding of the legal definition of
“kidnapping.” Id. He believed that
kidnapping only occurs when a victim is involuntarily
transported from one location to another, which was relevant
to his case because the victims were “herded into a
closet” during a home invasion but not removed from the
home. See Doc. 26 at 28. Petitioner states that he
would have accepted a plea offer if his counsel had explained
Arizona's kidnapping definition, “[g]iven that
there was overwhelming evidence against Petitioner and a
confession.” Doc. 1 at 8.
state post-conviction relief proceeding, Petitioner made the
same argument. See Doc. 15-1 at 149
(“Petitioner claims that because trial counsel failed
to explain the elements of the charge of kidnapping he
rejected the favorable plea.”), 153 (“[C]ounsel
failed to give ANY explanation as to the elements of
kidnapping.”). He further asserted in the Arizona Court
of Appeals that this claim is “based on privileged
communications between Petitioner and trial counsel and
obviously NOT ‘on record[.]'”
Id. at 149. He argued that the superior court had
incorrectly denied the claim without applying the
Strickland test simply because Petitioner rejected
the plea at a Donald hearing. Id. at 150
(citing Lafler v. Cooper, 566 U.S. 156, 173 (2012)
(“An inquiry into whether the rejection of a plea is
knowing and voluntary . . . is not the correct means by which
to address a claim of ineffective assistance of
counsel.”)). The appellate court denied relief,
Soto-Portillo contends his counsel provided ineffective
assistance by not fully informing him of the charges against
him during plea negotiations. Specifically, Soto-Portillo
states in an affidavit submitted in support of the petition
for post-conviction relief that his counsel failed to give
him a “legal definition” of kidnapping and that
this failure “altered” his decision on the plea
offer. However, Soto-Portillo does not claim his counsel did
not adequately explain the elements of the offenses in some
manner. Nor does he claim he did not understand what his
counsel told him regarding the plea offer or the charged
offenses, that counsel did not adequately discuss the plea
offer or the advantages of the plea offer, or that he had any
questions about the plea offer or charges that were not
answered by his counsel. See Strickland, 466 U.S. at
691 (noting the reasonableness of counsel's actions may
be “determined or substantially influenced by”
the information supplied by the defendant). Additionally,
Soto-Portillo was questioned regarding his understanding of
the plea offer at a hearing held pursuant to State v.
Donald, 198 Ariz. 406 (App. 2000), in which he stated he
had no questions for either the court or counsel. The court
is entitled to rely upon representations made by the
defendant regarding his understanding of and willingness to
enter a plea agreement. See State v. Hamilton, 142
Ariz. 91, 92-93 (1984). Considering the entirety of the
record, the superior court did not abuse its discretion in
finding Soto-Portillo failed to state a colorable claim of
ineffective assistance with respect to his plea negotiations.
State v. Lemieux, 137 Ariz. 143, 146 (App. 1983)
(considering the entire record when determining whether the
defendant could establish counsel was ineffective).
Soto-Portillo, 2016 WL 4193913, at *2 ¶ 8.
October 20, 2017, Judge Metcalf issued an order finding that
Ground Three was subject to de novo review because the state
appellate court decision “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” Doc. 23 at 6 (quoting
28 U.S.C. § 2254(d)(2)); see also Hurles v.
Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we
determine, considering only the evidence before the state
court, . . . that the state court's decision was based on
an unreasonable determination of the facts, we evaluate the
claim de novo, and we may consider evidence properly
presented for the first time in federal court.”),
cert. denied, 135 S.Ct. 710 (2014). Specifically,
Judge Metcalf found the appellate court's statement that
“Soto-Portillo does not claim his counsel did not
adequately explain the elements of the offenses in some
manner” plainly misstates the record before the state
court. Doc. 23 at 5-6.
considering Respondents' supplemental answer (Doc. 24),
Judge Metcalf issued another order on January 23, 2018,
finding that Ground Three could not be evaluated based on the
existing record. Doc. 25. Judge Metcalf explained:
While it is tempting to simply rest upon Respondents'
argument and proceed to the merits based on the limited
record, the Court is not inclined to resolve the merits of
this claim without addressing the very weighty matters
avoided by the state court's failure to give recognition
to the substance of Petitioner's claim. Accordingly, the
Court will direct the parties to seek a declaration from
trial counsel, and to address whether other discovery or
supplementation of the record, or an evidentiary hearing, are
appropriate to the Court's de novo review of Ground 3.
However, the first step, a declaration from trial counsel,
can proceed only if Petitioner has waived his attorney client
privilege so as ...