United States District Court, D. Arizona
Patricio E. Martinez, Petitioner,
Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE D. THOMAS FERRARO UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
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.
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.)
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.
argues against all asserted grounds for relief. (Doc. 10.)
Petitioner did not file a reply. (Dkt.) … …
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
Claims - Grounds Three and Four
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”).
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.
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 ...