Melendez v. Ryan

          THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE

         David Quintin Melendez filed a Petition for Writ of Habeas Corpus (“Petition”) in this Court challenging his convictions and sentences in Maricopa County Superior Court. Melendez alleges he received ineffective assistance of trial counsel during plea negotiations. (Doc. 1) A response and a reply have been filed (Docs. 14, 17), and the matter is ripe for decision. As described below, the undersigned recommends that Melendez's Petition should be denied and dismissed with prejudice.

         Background

         In April 2012, Melendez was indicted in Maricopa County Superior Court for one count of aggravated assault and one count of misconduct involving weapons. (Doc. 14, Ex. A) In June 2012, the State filed an allegation of historical priors and an allegation of prior felony convictions; both allegations involved convictions from Florida. (Doc. 14, Exs. B, D) There had been a pre-indictment settlement conference that produced no plea offer because Melendez had refused an offer at an even earlier point. (Doc. 14, Ex. NN) At the settlement conference, Melendez expressed no intention to plead guilty. (Id.)

         In August 2012, at the Final Pretrial Conference, the trial judge asked why Petitioner had not been offered a plea agreement. (Doc. 14, Ex. OO) During discussions that followed on the record with the trial judge, Melendez indicated that he “would consider taking the three and a half [3.5 years which was offered and rejected by Melendez before the settlement conference] just to spare everybody from going to trial or whatnot.” (Id.) Following the conversation at the Final Pretrial Conference, the prosecutor emailed Melendez's counsel with offer for a sentence of 5 to 7.5 years. (Doc. 14, Ex. E) The prosecutor wrote that this offer “cuts 7.5 years off the top of the range.” (Id.)

         Melendez did not accept the State's offer, and the case proceeded to trial in September 2012. (Doc. 14, Ex. F) At the conclusion of a six-day trial, the jury found Melendez guilty and also found one aggravating factor. (Doc. 14, Exs. F, G) Subsequently, the prosecutor emailed Melendez's counsel and informed him that the State intended to argue that Melendez's Florida convictions were dangerous. (Doc. 14, Ex. H) If the Florida convictions were dangerous under Arizona law, the sentencing range Melendez faced would be higher than counsel had discussed with each other during plea negotiations. (Doc. 14, Ex. I) The prosecutor acknowledged that he only recently had researched the priors; the prosecutor also acknowledged that he and defense counsel had not previously discussed the Florida priors being dangerous under Arizona law. (Doc. 14, Ex. H) Melendez, through counsel, moved to strike the priors because the State had previously indicated that it would not seek to show that the priors were dangerous. (Doc. 14, Exs. I, ZZ at 38-39) The Superior Court did not strike the priors and sentenced Melendez to concurrent, aggravated terms of 12.5 years for the aggravated assault charge and 4.5 years for the misconduct involving weapons charge, resulting in a total, effective prison sentence of 12.5 years. (Doc. 14, Ex. J)

         Melendez timely appealed and argued the Superior Court should have severed the two counts and also that the Superior Court imposed unlawful sentences. (Doc. 14, Exs. K, L) At the conclusion of briefing, the Arizona Court of Appeals affirmed Melendez's convictions and sentences. (Doc. 14, Exs. M, N, O) The Arizona Supreme Court denied review of his petition. (Doc. 14, Exs. P, Q, R)

         Melendez then timely initiated post-conviction relief and the Superior Court appointed him counsel. (Doc. 14, Exs. S, T) In his post-conviction petition, Melendez argued that he received ineffective assistance of counsel because his trial counsel had misrepresented the sentence he was facing. (Doc. 14, Ex. U) Melendez filed an affidavit from his trial counsel with his Petition that acknowledged error insofar as advising Melendez during plea negotiations that “if convicted at trial the most he faced was 5-15 years dangerous since it appeared as through [sic] the State did not seek to prove the prior conviction as a dangerous offense. Had I realized the State sought to prove the prior as a dangerous prior, I would have advised him that he faced a repetitive dangerous sentencing range.” (Doc. 14, Ex. X ¶6) Similarly, in Melendez's affidavit, he swore that defense counsel “advised that the State could not use my priors against me for sentencing enhancement purposes because they were non-dangerous offenses and the most I could receive if convicted at trial was 5-15 years.” (Doc. 14, Ex. W ¶5)

         At the conclusion of briefing, the Superior Court conducted an evidentiary hearing where Melendez and his trial counsel both testified. (Doc. 14, Exs. Y, Z, AA, BB) The Superior Court denied Melendez's Petition on the record. (Doc. 14, Exs. BB, ZZ)

         Melendez timely initiated appellate review. (Doc. 14, Ex. CC) The Arizona Court of Appeals ordered the Superior Court to supplement the record and then remanded the matter so the Superior Court could make specific findings of fact and conclusions of law. (Doc. 14, Exs. DD, EE) The Superior Court ordered the parties to submit proposed findings and conclusions and then adopted the proposed findings and conclusions submitted by the State. (Doc. 14, Exs. FF, GG, HH, II, JJ, KK)

         On further review, the Arizona Court of Appeals summarized the Superior Court's evidentiary hearing and subsequent ruling as follows:

At the hearing, Melendez's trial lawyer testified that the State offered an agreement by which Melendez would plead guilty to a Class 3 dangerous felony, with a stipulated sentence of between five and seven and a half years. The lawyer conceded he mistakenly advised Melendez that he might receive the same sentence after trial; in reality, a conviction on a dangerous Class 3 felony with a prior dangerous offense conviction would subject a defendant to a sentence of twice that term, according to the lawyer. The lawyer also testified, however, that he told Melendez that if the State were to allege a prior dangerous conviction, he might be sentenced to as long as 15 years after a trial. He flatly denied telling Melendez that if he rejected the plea offer and were to be convicted, he would receive the same sentence as in the plea offer. Further, he testified that Melendez never told him that he would be willing to accept a plea that would result in a sentence of more than five years in prison.

During the hearing, Melendez's trial counsel was cross-examined about a declaration he signed in support of Melendez's petition for post-conviction relief. In that declaration, the lawyer stated that Melendez rejected the 7.5- year offer “based on the erroneous belief that he could receive the same sentence if he proceeded to trial.” In the declaration, the lawyer stated that documents he received in response to discovery requests revealed that Melendez's prior armed-robbery felony constituted a dangerous felony. He further stated, “Unfortunately, and to Melendez' detriment, I discussed plea negotiations with Melendez based on my impression that his Florida prior could be a non-dangerous offense, dangerous offense, or multiple offenses.” He elaborated: “During plea negotiations, I ...