United States District Court, D. Arizona
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. § ...