Valenzuela v. Ryan

          REPORT AND RECOMMENDATION

          MICHELLE H. BUMS UNITED STATES MAGISTRATE JUDGE.

         TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT:

         Petitioner Melinda Gabriella Valenzuela has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 8). After the matter was stayed pending the resolution of Petitioner's petition for review in the Arizona Court of Appeals, Respondents filed an Answer (Doc. 20). Since Respondents filed their Answer, Petitioner has filed over 20-plus documents with this Court along with her Reply.

         BACKGROUND

         In her habeas petition, Petitioner claims to be challenging her judgment of conviction on April 9, 2014, in Maricopa County Superior Court. As Respondents have identified, it appears that Petitioner has convictions in two different cause numbers arising on that same Dated: (1) CR2012-159201 and (2) CR2013-001579. (Exhs. LL, MM.) The record reflects that Petitioner entered guilty pleas in both cases, and was sentenced in both cases on April 9, 2014. (Exhs. EE, FF, GG, LL, MM.) The Court construes Petitioner's habeas petition to challenge Petitioner's convictions in both state court cases - CR2012-159201 and CR2013-001579.

         In CR2012-159201, Petitioner pleaded guilty to one count of theft of a means of transportation, with one prior felony conviction. (Exh. EE.) In CR2013-001579, Petitioner pleaded guilty to another count of theft of a means of transportation, but with no prior felony conviction. (Exh. FF.) The trial court sentenced Petitioner to 9 years' imprisonment in the 2012 case, and placed Petitioner on 5 years' probation in the 2013 case - to commence upon her release from prison. (Exhs. EE, FF, GG, LL, MM.)

         On May 16, 2014, Petitioner filed a notice of post-conviction relief. (Exh. NN.) On February 5, 2015, counsel for Petitioner filed a “Notice of Completion of Post-Conviction Review by Counsel; Request for 45 Day Extension of Time to Allow Defendant to File Pro Per Petition for Post-Conviction Relief, ” indicating that she could not find any colorable issues, and requesting an extension of time for Petitioner to file a pro se PCR petition. (Exh. PP.) The trial court granted Petitioner additional time to file a pro se PCR petition. (Exh. QQ.)

         On September 11, 2015, Petitioner filed a pro se PCR petition in the 2012 case claiming the following: (1) she was on “mental health meds and was not fully alert in court”; (2) her counsel was also counsel for her alibi witness and should have withdrawn from the case; (3) counsel withheld documents from Petitioner; (4) counsel communicated with the prosecutor in an attempt “to set [Petitioner] up and to not fully represent her”; (5) the trial court never heard the motion for change of venue based on the contention that Petitioner's mother worked for the court; (6) “they” made promises of recommendations “they didn't put in the sentence of imprisonment minute entry”; (7) “several other errors” occurred; (8) Petitioner “never willingly signed the plea, ” but instead was threatened by her counsel and the prosecutor to take it; (9) the judge denied Petitioner's motions to challenge the grand jury without cause, even though Petitioner knew three grand jury members; (10) a witness in the grand jury gave inaccurate testimony; (11) Petitioner's advisory counsel asked for a Rule 11 competency evaluation; (12) the judge refused to address various issues, but ordered a “second Rule 11” evaluation for no reason; (13) the court and counsel for both parties “plotted to show that [Petitioner] was crazy even though 4 doctors found her competent not once but twice”; (14) Petitioner's legal file was stolen by jail officials and the court did not address this; (15) Correctional Health Services (“CHS”) made misrepresentations about Petitioner and did not “fully evaluate the mental health”; and (16) Petitioner was threatened several times that “the court would hang her alive and get away with it” if she did not take the plea. (Exh. RR.)

         In her “affidavit” in support of her petition, Petitioner alleged that: (1) “evidence was lost by the State and police tampered” with the evidence; (2) Petitioner's mother was currently a Maricopa County judge; (3) the judge who took the plea threatened Petitioner's “life with harm if [she] didn't take the plea the State offered”; and (4) Petitioner had a substantial amount of evidence in her possession that showed she was innocent, but her attorney would not properly address it. (Exh. RR.)

         In another “affidavit” filed in support, Petitioner alleged that: (1) she was “not coherent at the time the plea was signed”; (2) she had attempted suicide the day after the change of plea; (3) she had been hospitalized multiple times for mental health reasons; (4) counsel threatened Petitioner that if she did not take the plea, “she would use her power as [Petitioner's] lawyer to ensure that [she] was killed in [prison]”; (5) the prosecutor threatened to put Petitioner away for life if she did not take the plea; and (6) Petitioner felt threatened and thought she would “be hurt by [her] counsel if [she] didn't accept the plea.” (Exh. RR.)

         Also, on September 11, 2015, Petitioner filed another PCR notice and pro se PCR petition in the 2013 case. (Exh. SS.) Petitioner alleged the following: (1) her Miranda rights were violated; (2) evidence was “tampered with by the State”; (3) she knew members of the grand jury and was denied the right “to challenge them”; (4) she was actually innocent; (5) there was a “conflict between Maricopa [County] due to the fact that [Petitioner's] mother is currently a sitting judge on the bench and she was involved with a county attorney in an [intimate] manner”; (6) the judge abused her discretion when it ordered her into Rule 11 proceedings; (7) she suffers from P.T.S.D. (Post-Traumatic Stress Disorder) and G.I.D. (Gender Identity Disorder), attempted suicide multiple times during the case, and is “S.M.I.” (Seriously Mentally Ill); (8) counsel did not call people to speak at sentencing; and (9) counsel refused to send Petitioner medical records. (Exh. SS.)

         In an “affidavit” filed in support, Petitioner alleged that the trial judge threatened Petitioner's “life with harm” if Petitioner did not take the plea. (Exh. SS.)

         On January 13, 2016, Petitioner filed an amended pro se PCR petition in the 2013 case. The amended petition consisted primarily of multiple case-related exhibits, including that following: (1) Petitioner's “Motion to Extend Time to File 12.9 Motion”; (2) an excerpt from the sentencing transcript; (3) the sentencing minute entry in Petitioner's 2013 case; (4) an affidavit mirroring the statements in the first affidavit included with Petitioner's original PCR petition; (5) a “statement of facts”; (6) a competency evaluation from Dr. Ramirez; (7) a competency evaluation from Dr. Patrasso; and (8) a competency evaluation from Dr. Youngjohn. (Exh. XX.)

         Petitioner filed another amended pro per PCR petition in the 2013 case on January 14, 2016 - which appears to be a duplicative filing. (Exh. ZZ.)

         The State filed a consolidated response to all of Petitioner's PCR petitions. (Exh. AAA.) Although the court allowed Petitioner to file a reply, she failed to do so. (Exhs. BBB, CCC.) On August 5, 2016, the trial court dismissed the PCR proceeding concluding that Petitioner had not raised any colorable claims. (Exh. CCC.)

         Thereafter, Petitioner filed another PCR notice in the 2012 case. (Exh. DDD.) Petitioner asserted she was entitled to file another petition because: (1) the claim was based on “[n]ewly discovered material facts [that] would probably have changed the verdict or sentence”; (2) the failure to file a timely PCR notice or notice of appeal was without Petitioner's fault; and (3) “[f]acts exist which establish by clear and convincing evidence that the defendant is actually innocent.” (Exh. DDD.) Petitioner stated: “The court held documents and made orders to get records but has not sent the records, counsel held records and these are vital to the case.” (Exh. DDD.) Petitioner checked off the following boxes as possible grounds for relief: (1) ineffective assistance of counsel; (2) the unconstitutional suppression of evidence by the state; (3) “[a]n unlawfully induced plea of guilty or no contest; (4) “[t]he abridgement of any other right guaranteed by the constitution or the laws of this state, or the constitution of the United States”; (5) newly-discovered evidence; (6) her failure to file a timely PCR notice was without her fault; and (7) lack of jurisdiction. (Exh. DDD.)

         On October 17, 2016, the court dismissed the PCR notice finding that the petition was untimely and successive. (Exh. EEE.) The court found the following: (1) it did have jurisdiction over Petitioner's case; (2) Petitioner's ineffective assistance of counsel claims were precluded, as was her claim that evidence was unlawfully suppressed and her claim that her guilty plea was involuntary; (3) Petitioner did not provide an adequate factual or legal basis for relief under Rule 32.1(f), which concerns the failure to timely file a PCR notice or a notice of appeal; (4) Petitioner's newly-discovered evidence claim was too vague to state a claim for relief; and (5) Petitioner had not provided sufficient facts to establish she was actually innocent. (Exh. EEE.)

         On September 2, 2016, Petitioner filed a petition for review in the Arizona Court of Appeals. (Exh. FFF.) The Arizona Court of Appeals identified Petitioner's claims on appeal as follows:

(1) the superior court failed to properly address her mental health issues and she was not provided with records and reports, (2) her guilty pleas were involuntary based on threats and coercion from her advisory counsel and the prosecutor, (3) the court improperly refused to address alleged Miranda violations, (4) her advisory counsel provided ineffective assistance, (5) other evidence (police reports, unspecified documents, unspecified statements from a co-defendant, and unspecified DNA evidence) prove her innocence, (6) several of Valenzuela's friends were on the grand jury and her mother was a sitting judge on the superior court, and (7) she was not awarded full credit for “back time.”

State v. Valenzuela, 2017 WL 5494381 (Ariz.Ct.App. November 16, 2017). The appellate court granted review, but denied relief stating:

¶ 5 Regarding Valenzuela's mental health claims, the record shows that she was evaluated by several mental health professionals before accepting the plea agreements. Although she suffers from mental health issues, four of the five doctors who evaluated Valenzuela concluded she was competent, as did the superior court based on the experts' reports. Valenzuela has not presented any evidence suggesting the superior court's determination of competence was an abuse of discretion, nor does the record of the change of plea proceeding reflect anything that would call Valenzuela's competency into question.

¶ 6 Valenzuela's claim of an involuntary plea also fails. Although she now claims her advisory counsel and the prosecutor threatened her to secure a guilty plea, Valenzuela advised the court at the change of plea hearing that the pleas were voluntary and that no one had threatened or forced her to plead guilty. Absent compelling evidence undermining Valenzuela's acknowledgment of voluntariness in open court, her statements to the superior court at the change of plea are binding. State v. Hamilton, 142 Ariz. 91, 93 (1984).

¶ 7 Valenzuela's remaining claims are either unsupported by the record or are waived. By pleading guilty, Valenzuela waived all non-jurisdictional defects-including constitutional claims-other than claims directly related to entry of the guilty pleas. See Tollett v. Henderson, 411 U.S. 258 (1973); State v. Quick, 177 Ariz. 314 (App. 1993); State v. Moreno, 134 Ariz. 199, 200 (App. 1982). Her assertions related to alleged Miranda violations, sufficiency of the evidence, alleged procedural irregularities, and non-plea-related ineffective assistance of counsel (assuming arguendo ineffective assistance of advisory counsel can form a basis for relief) are thus waived. Moreover, Valenzuela failed to present any allegedly exculpatory evidence to support an actual innocence claim or any support for her assertion that family and friends were involved in the judicial process, and the record does not support these claims. Nor has she provided any information supporting her claim that the superior court failed to award adequate credit for presentence incarceration.

Valenzuela, 2017 WL 5494381.

         In her habeas petition, Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner raises three grounds for relief: (1) Plaintiff received ineffective assistance of counsel, in violation of the Sixth Amendment; (2) Plaintiff was denied her constitutional right to an impartial judge when she was “threatened” by the judge and her lawyer to take the plea; and (3) Plaintiff's constitutional rights were violated when her lawyer refused to review DNA evidence that would have proven her innocence. (Docs. 8, 7.)

         In their Answer, Respondents argue that Grounds One and Three are procedurally defaulted, and Ground Two fails on the merits.

         DISCUSSION

         A. ...