Martinez v. Ryan

          REPORT AND RECOMMENDATION

          HONORABLE D. THOMAS FERRARO UNITED STATES MAGISTRATE JUDGE.

         Petitioner Patricio E. Martinez (Petitioner) presently incarcerated at the Arizona State Prison Complex, South Unit, in Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 6.) Before the Court are the Petition (Doc. 1) and Respondent's Answer to Petition for Writ of Habeas Corpus (Doc. 10). As more fully set forth below, the Magistrate Judge recommends that the District Court deny and dismiss the Petition.

         BACKGROUND

         On January 14, 2011, Petitioner was convicted after a jury trial in the Arizona Superior Court, Pima County of molestation of a child under 12 years of age. (Doc. 11. at p. 11.) The trial court sentenced Petitioner to the presumptive 17-year prison term. Id. at p. 15. On direct appeal, Petitioner argued that the trial court abused its discretion in instructing the jury, over Petitioner's objection, on molestation of a child as a lesser included offense of sexual conduct with a minor. (Doc. 11 at pp. 20-54.) The Arizona Court of Appeals found no error and affirmed Petitioner's conviction and sentence on August 29, 2012. Id. at pp. 3-9. Martinez filed a petition for review with the Arizona Supreme Court, which was denied on January 8, 2013. Id. at pp. 87-103, 105.

         On June 24, 2013, Martinez filed a notice of post-conviction relief (“PCR”) pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. Id. at pp. 107-109. Petitioner's court appointed counsel timely filed a PCR petition on December 4, 2013 raising two claims of ineffective assistance of counsel (“IAC”). (Doc. 12 at pp. 3-60.) In his first claim, Petitioner argued that his trial counsel had been ineffective in not moving for a mistrial after one of the State's witnesses, a police sergeant, mentioned during his testimony that another witness had told him that she heard that Petitioner had been in prison before. Id. at 9. Petitioner's second claim was that his trial counsel had failed to present mitigating evidence at sentencing. Id. at 13. On April 4, 2014, after a full briefing, the trial court denied relief determining that Petitioner had not presented a colorable IAC claim. Id. at pp. 83-87.

         Petitioner, pro se, filed a second notice of PCR on August 1, 2014. Id. at p. 89. The trial court summarily dismissed the notice because it did not set forth the grounds for relief sought or the specific exception to Rule 32's preclusion rule under which relief was sought. Id. at 92-94. Thereafter, Petitioner's court appointed PCR counsel filed a petition for review in the court of appeals. Id. at pp. 89-116. On November 17, 2014, the court of appeals denied relief. (Doc. 13 at pp. 3-5.) Counsel timely filed a petition for review with the Arizona Supreme Court. Id. at pp. 9-24. The Arizona Supreme Court denied review on December 3, 2015. Id. at p. 26. The court of appeals issued its mandate on March 2, 2016. Id. at p. 28.

         On July 13, 2016, Petitioner filed a motion asking the trial court to compel his PCR attorney to send him his complete file. Id. at pp. 30-31. On July 8, 2016, the trial court ordered counsel to advise the court of what he provided Petitioner. Id. at p. 37. On October 5, 2016, Petitioner filed a motion to vacate his conviction and sentence arguing that he still had not received his file. (Doc. 13 at pp. 39-44.) Petitioner's PCR attorney responded to the trial court informing it that he did not use physical records and he had no records to transfer. Counsel also advised the trial court that the Office of Court Appointed Counsel agreed to download and transfer to Petitioner the entire trial and appellate record. Id. at pp. 46-47. On October 6, 2016, the trial court denied Petitioner's motion to vacate his conviction. Id. at p. 49.

         On November 10, 2016, Petitioner filed a second motion with the trial court asserting he had still had not received his trial transcripts, was therefore unable to prepare his federal habeas petition and asked to be released. Id. at pp. 51-55. On December 1, 2016, the trial court denied Petitioner's motion noting that court appointed counsel would send Petitioner his file. Id. at p. 57. Prior to the trial court's decision, on November 21, 2016, Petitioner filed the instant Petition raising four grounds for relief. (Doc. 1.)

         In Ground One, Petitioner argues that his right to the effective assistance of counsel was violated by his trial counsel's failure to move for a mistrial after the police officer testified that Petitioner had been in prison before. (Doc. 1 at p. 6.) In Ground Two, Petitioner argues that his right to the effective assistance of counsel was violated by his trial counsel's failure to present mitigating evidence at sentencing. Id. at p. 8. In Ground Three, Petitioner claims his “14th Amendment rights” were violated by the “ineffective assistance of counsel failure to turn over [his] trial transcripts and criminal files so that [he] can properly file his appeals and habeas corpus in this case.” Id. at p. 11. In Ground Four, Petitioner claims his “14th Amendment” rights were violated when his “attorney intentionally withheld his trial criminal transcripts in order to derail [his] appeals in this case.” Id. at p. 12.

         Respondent argues against all asserted grounds for relief. (Doc. 10.) Petitioner did not file a reply. (Dkt.) … …

         ANALYSIS

         As explained below, Grounds Three and Four fail to state a cognizable claim for federal habeas relief. Even if they did state a cognizable claim, Grounds Three and Four are procedurally defaulted without excuse and are precluded from federal habeas review. Grounds One and Two are exhausted but without merit.

         Non-Cognizable Claims - Grounds Three and Four

         A federal court can grant habeas relief “only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The rules governing habeas corpus cases require that the petition “specify the facts supporting each ground.” Rule 2(c), Rules Governing 2254 Cases; see also Mayle v. Felix, 545 U.S. 644, 656 (2005) (noting that Rule 2(c) “demand[s] that habeas petitioners plead with particularity”).

         As mentioned above, in Grounds Three and Four Petitioner claims that his rights under the Fourteenth Amendment to the United States Constitution were violated. (Doc. 1 at pp. 11, 12.) In Ground Three, Petitioner claims “ineffective assistance of counsel failure to turn over Petitioner's trial transcripts and criminal files so that Petitioner can properly file his appeals and habeas corpus in this case.” Id. at p. 11.In Ground Four, Petitioner claims that his attorney “intentionally withheld his trial criminal transcripts in order to derail [his] appeals in this case.” Id. at p. 12.

         Petitioner's claim in Ground Four is too vague to state a claim. Petitioner fails to specify which constitutional guarantee set forth in the Fourteenth Amendment to the United States Constitution he believes that his trial attorney violated by allegedly withholding his trial transcripts. Likewise, in Ground Three, Petitioner fails to specify which constitutional guarantee set forth in the Fourteenth Amendment to the United States Constitution that he believes his trial attorney violated. As recognized by Petitioner ...