Ramirez-Esperano v. Ryan

          HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.

         This matter is on referral pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. Pending is the Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (“Petition”) filed by Jesus Antonio Ramirez-Esperano (“Petitioner” or “Ramirez-Esperano”). (Doc. 7)^[1]Respondents filed their Answer (Doc. 11) and Petitioner has filed a Reply. (Doc. 14) Also pending is Petitioner's Motion for Clarification. (Doc. 15) For the reasons set forth below, the undersigned Magistrate Judge recommends this Court deny and dismiss the Petition with prejudice and deny a certificate of appealability.

         I. BACKGROUND

         A. Indictment, plea agreement, sentencing, post-conviction relief action

         In an indictment filed in October 2014, the Yuma County Superior Court charged Petitioner with eight counts of Sexual Exploitation of a Minor, based on acts alleged to have occurred between August 1 and October 15, 2014. (Doc. 11-1 at 3-8) Each count was charged as a class two felony. (Id.)

         Petitioner executed a plea agreement on November 30, 2015, which was signed on the same date by a court interpreter and defense counsel. (Id. at 24-27) Petitioner agreed to plead guilty to Amended Counts One and Two, charged as counts of Attempted Sexual Exploitation of a Minor, class three felonies identified as “dangerous crimes against children but non[-]repetitive offense[s] . . . .” (Id. at 24) The parties stipulated to terms including: (1) a sentence of 10 years' imprisonment on Amended Count One; (2) a consecutive term of lifetime probation on Amended Count Two; and (3) mandatory registration as a sex offender. (Id. at 25) The agreement further specified the stipulated terms would be subject to court approval. (Id.) Under the plea agreement, Counts One and Two of the indictment “as originally charged” were dismissed, along with Counts Three through Eight. (Id.) The agreement specifically “serve[d] to amend” the indictment “without the filing of any additional pleading.” (Id.) Petitioner initialed each paragraph of the terms of the plea agreement and averred that he had read or had read to him the terms of the agreement and that he understood and approved the terms. (Id. at 24-26)

         At Petitioner's change of plea hearing, the superior court determined that Petitioner was satisfied with his representation by counsel, understood and accepted the plea agreement, was aware of possible penalties and mandatory sentencing requirements, and understood the rights he was waiving by voluntarily entering into the agreement. (Id. at 29)

         Petitioner was sentenced in January 2016 to the presumptive term of 10 years' imprisonment on Amended Count One, and to supervised lifetime probation on Amended Count Two. (Id. at 33-34) The court granted the State's motion to dismiss “counts one and two as originally charged, and counts three, four, five, six, seven and eight of the indictment.” (Id. at 35)

         Petitioner filed a motion for clarification with the superior court in July 2016, apparently questioning why he was sentenced under counts one and two when those counts were dismissed. (Doc. 7 at 12-13) In February 2017, the superior court entered an order ruling on Petitioner's motion for clarification “indicating [Petitioner's] confusion as to the language in his sentencing document wherein it states that he is sentenced as to Amended Count One and Amended Count Two, yet Count One and Count Two as originally charged have been dismissed.” (Id. at 38) The court noted the amended counts were different than the original counts charged and were required to be dismissed pursuant to the plea agreement. (Id. at 39)

         Petitioner filed a petition for review of the superior court's order with the Arizona Court of Appeals pursuant to Arizona Rule of Criminal Procedure 32.9(c). (Id. at 41-43) He alleged he did not understand the plea agreement he signed and questioned how he could have been initially charged with the crime of sexual exploitation “and then have the charges dismissed and then be charged with attempted exploitation.” (Id. at 42) In November 2017, the Arizona Court of Appeals issued a memorandum decision, denying Ramirez-Esperano's petition for post-conviction relief. (Id. at 49-50) The court of appeals indicated it had reviewed the record and concluded Petitioner failed to establish the superior court had abused its discretion. (Id. at 50) After Petitioner did not file either a petition for review or a motion for reconsideration, the court of appeals issued its mandate. (Id. at 52)

         B. Petitioner's habeas claims

         Petitioner asserts a single ground for relief, arguing he was denied his rights under the Fifth, Sixth and Eighth Amendments when the Yuma County Superior Court sentenced him for crimes alleged under two amended counts. (Doc. 7 at 13) He questions the legality of his indictment under charges of sexual exploitation of a minor followed by the subsequent dismissal of those charges and an offer of a plea to lesser charges of attempted sexual exploitation of a minor. (Id.) Petitioner argues the court's dismissal of the charge of sexual exploitation of a minor indicates that “no crime was committed” and that the lesser charge of attempted sexual exploitation accordingly lacked a legal basis, asserting “there is no such charge as attempt.” (Id.)

         Respondents correctly note that the Arizona Court of Appeals construed Petitioner's July 2016 motion for clarification to the superior court as a petition for post-conviction relief under Arizona Rule of Criminal Procedure 32. (Doc. 11 at 4, Doc. 11-1 at 49)

         Respondents decline to address any possible defenses of procedural bar or untimeliness and suggest the Court deny the Petition on the merits, citing 28 U.S.C. § ...