United States District Court, D. Arizona
G. Campbell Senior United States District Judge
21, 2018 Petitioner Isidrio Pacheco filed a motion for
issuance of writ due to non-compliance with this Court's
December 22, 2016 order conditionally granting
Petitioner's writ of habeas corpus. Doc. 32. The state
has filed a response, asserting full compliance with the
Court's order. Doc. 33. Petitioner has filed a reply.
Doc. 34. For the reasons set forth below, the Court will deny
2013, Petitioner was charged with child molestation and
sexual conduct with a minor. Doc. 19 at 2. He accepted a plea
deal and the superior court sentenced him to 17 years.
Id. at 3. Because Petitioner entered a plea, he had
no right to file a direct appeal under Arizona law.
Id. at 4 (citing A.R.S. § 13-4033(B); Ariz. R.
Crim. P. 17.1(e)).
filed a timely notice of post-conviction relief pursuant to
Rule 32 of the Arizona Rules of Criminal Procedure. Doc. 12-1
at 57; see also Ariz. R. Crim. P. 32.4(a)(1).
Petitioner's appointed counsel filed a notice of no
colorable claim, stating that she found no meritorious issue
for review. Doc. 12-1 at 61. The only request in the notice
was that Petitioner be allowed to file a pro se
petition for post-conviction relief. Id. Petitioner
filed his pro per petition, asserting ineffective
assistance of counsel and sentencing error. Id.
trial court summarily denied the petition. Petitioner sought
review before the Arizona Court of Appeals, contending that
the trial court erred in issuing a “format
letter” finding that he had failed to assert colorable
claims. Petitioner also argued that his post-conviction
relief (“PCR”) proceeding was the equivalent of a
direct appeal and that the trial court erred by failing to
review the record for “fundamental error” as
required by Anders v. California, 386 U.S. 738
(1967). Id. at 4-5. The Court of Appeals granted
review but denied relief, rejecting all of Petitioner's
arguments. Id. at 5.
The First Petition for Habeas.
filed a petition for writ of habeas corpus with this Court in
November, 2015. He asserted four grounds. The first three,
which the Court denied, alleged ineffective assistance of
counsel. Doc. 19 at 6. The fourth ground alleged that
Petitioner was entitled under Anders to a review of
the record for “fundamental error” by the trial
court because his PCR proceeding was the equivalent of a
direct appeal. Doc. 19 at 6. The magistrate judge found
“Petitioner's rights under Anders were
violated. Id. at 66.
December 22, 2016, this Court denied the state's
objections and issued a conditional grant of a writ of
habeas. Doc. 26. The order required that Petitioner be
permitted to file a new of-right Rule 32 PCR proceeding,
“including the filing of a brief by counsel and an
independent review of the record by the trial court
consistent with Anders[.]” Doc. 26.
January 3, 2017, Petitioner filed his second notice of
post-conviction relief in the superior court and was
appointed counsel. Doc. 32 at 7. Counsel filed a new of-right
Rule 32 petition for post-conviction relief on January 29,
2018. Id. The petition alleged a significant change
of law because Arizona's child molestation statute was
found unconstitutional in May v. Ryan, 245 F.Supp.3d
1145, 1158 (D. Ariz. 2017). Id. The petition also
alleged ineffective assistance of counsel because
Petitioner's original trial counsel should have
interviewed Petitioner's alibi witness, moved to suppress
his confession, and presented mitigation evidence.
Id. at 8-12. Further, the petition alleged that the
trial court failed to inform Petitioner of the sentence
enhancement under Arizona's Dangerous Crimes Against
Children Act (“DCACA”), rendering his plea
agreement invalid. Doc. 32 at 12-6. Finally, the petition
alleged that the DCACA sentencing scheme is unconstitutional
because it enhances a sentence based on facts found by a
judge instead of facts found by a jury beyond a reasonable
doubt. Doc. 32 at 16.
11, 2018, the superior court denied the Rule 32 petition,
finding that “all matters contained in the Petition for
Post-Conviction Relief are precluded as having been
previously ruled upon or untimely filed[, ] or the Petition
lacks sufficient basis in law and fact to warrant further
proceedings herein and no useful purpose would be served by
further proceedings.” Doc. 32 at 50. Petitioner then
filed the motion for issuance of the writ in this Court,
arguing that the superior court's decision did not
satisfy the Court's order for a new of-right PCR. Doc.
32. Petitioner argued that the superior court did not afford
him a new Rule 32 proceeding because it found the issues
raised to be precluded or untimely which meant that it
“treated the appeal as a successive action limiting the
scope of [appealable] issues.” Doc. 32 at 2.
state filed a request for clarification in the superior court
(see Doc. 34 at 5-6), and that court issued supplemental
findings of fact and conclusions of law on July 12, 2018.
See Doc. 33-1at 2. The order supplemented the
court's June 11, 2018 order “after fully
considering [Petitioner's petition] on its merits.”
Doc. 34 at 18. The court found that May v. Ryan did
not constitute a significant change in the law because a
district court decision is not the controlling authority for
Arizona state courts. Doc. 33-1 at 4. The superior court
noted that it was bound by Arizona Supreme Court precedent,
which has found Arizona's child molestation laws to be
consistent with due process and therefore constitutional.
Id. (citing State v. Holle, 379 P.3d 197
(Ariz. 2016)). The court found that Petitioner's counsel
was not ineffective, finding Petitioner waived claims
unrelated to the validity of his plea agreement, and that
Petitioner failed to present evidence that proved
counsel's failure would have affected his plea
agreement. See Doc. 33-1 at 6-7.
court also found that Petitioner was not entitled to a jury
trial for the sentencing enhancement because the right to a
jury under Apprendi v. New Jersey, 530 U.S. 490
(2000), applies only if the penalty is increased beyond the
prescribed statutory maximum. See Doc. 33-1 at 7.
Further, the court found that Petitioner knew of the
sentencing enhancement because he knew throughout the process
that the state charged him with a dangerous crime against
children. Doc. 33-1 at 8. The court determined that the
sentencing under DCACA is not discretionary but mandatory
based on the crimes charged, and disagreed that DCACA allows
the judge to find a fact to increase the penalty.
Id. at 7-8. The judge is not required to make a
finding of fact as to a victim's age for DCACA because
the victim's age ...