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Ventura-Victoria v. Ryan

United States District Court, D. Arizona

July 31, 2018

Jorge Alejandro Ventura-Victoria, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE.

         On March 27, 2017, Jorge Alejandro Ventura-Victoria (“Petitioner” or “Ventura-Victoria”) filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”) challenging his convictions in the Maricopa County Superior Court. (Doc. 1) Respondents filed a response on January 18, 2018. (Doc. 14) Petitioner, proceeding pro se, did not file a reply. For the reasons set forth below, the Court recommends that Ventura-Victoria's Petition be denied and dismissed with prejudice.

         I. BACKGROUND

         A. Indictment and guilty plea

         Petitioner was indicted in June 2014 on six counts of sexual conduct with a minor under the age of 15, and two counts of molestation of the minor. (Doc. 14-1 at 12-15) In February 2015, Petitioner accepted a plea offer and pleaded guilty to one count of Attempted Sexual Conduct with a Minor, one count of Molestation of a Child, and one count of Attempted Sexual Conduct with a Minor. (Id. at 35-38, 40-51) Petitioner was sentenced to terms of supervised probation on two counts, and on the third count was sentenced to a mitigated term of 12 years' imprisonment and lifetime supervised probation upon discharge from prison, and was required to register as a sex offender. (Doc. 14-2 at 35-39)

         B. Post-Conviction Relief action

         In July 2015, Petitioner filed a Notice of Post-Conviction Relief (“PCR”), in which he asserted his counsel was ineffective during his sentencing. (Doc. 14-3 at 2-4) He was appointed counsel. (Id. at 6) In November 2015, while he was represented by counsel, Petitioner filed a pro se petition for PCR in the superior court, asserting numerous grounds for relief that he identified by checking boxes on a standard form. (Id. at 21-22) In a November 2015 order, the superior court advised Petitioner that it would take no action on the pro se petition because he already had an ongoing Rule 32 PCR petition pending, and he was represented by counsel. (Id. at 27.

         In March 2016, Petitioner's appointed counsel filed a notice of completion of PCR review, advising the court he had reviewed the record and that, after discussing the case with Petitioner, he was unable to identify any colorable claims to raise. (Id. at 32-33) The superior court granted Petitioner until May 13, 2016 to file a pro se petition. (Id. at 35-36) After Petitioner failed to file a petition by the deadline, the superior court dismissed his PCR action on June 23, 2016. (Id. at 38)

         Petitioner filed a notice of direct appeal with the Arizona Court of Appeals (Id. at 40), which the court dismissed because he had entered a plea agreement (Id. at 43). Subsequently, Ventura-Victoria filed a petition for review in the court of appeals, arguing that the trial court had erred in sentencing him, that his trial counsel provided ineffective assistance, and that his confession was unconstitutional. (Id. at 45-48) Petitioner requested “a reduction of sentence without overturning [his] conviction.” (Id. at 47) The court of appeals dismissed the petition for review as untimely. (Id. at 50)

         II. LEGAL FRAMEWORK

         A. Exhaustion of Remedies & Procedural Default

         A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Arizona's “established appellate review processes” consist of a direct appeal and a PCR proceeding. See Ariz. R. Crim. P. 31, et. seq. and Rule 32, et. seq.; see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.”).

         To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Galvan v. Alaska Dep't Corr., 397 F.3d 1198, 1204-05 (9th Cir. 2005) (“To exhaust a federal constitutional claim in state court, a petitioner has to have, at the least, explicitly alerted the court that she was making a federal constitutional claim.”).

         A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule). An implied procedural bar exists if a claim was not fairly ...


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