United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT
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
Indictment and guilty plea
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)
Post-Conviction Relief action
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
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)
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)
Exhaustion of Remedies & Procedural Default
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.”).
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.”).
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 ...