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Soto-Portillo v. Ryan

United States District Court, D. Arizona

May 3, 2018

Bulmaro Soto-Portillo, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          David G. Campbell United States District Judge.

         Petitioner 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.

         On 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.

         I. Background.

         Petitioner 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, 2016).

         II. Ground Three.

         Ground 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.

         In his 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, stating:

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.

         On 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.

         After 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 ...

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