Pacheco v. Ryan

          ORDER

          David G. Campbell Senior United States District Judge

         On June 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 Petitioner's motion.

         I. Background.

         In 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)).

         Petitioner 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.

         The 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.

         B. The First Petition for Habeas.

         Petitioner 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.

         On 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.

         C. Second PCR

         On 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.

         On June 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.

         The 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.^[1] See Doc. 33-1 at 6-7.

         The 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 ...