Ramirez v. Ryan

          ORDER

          Douglas L. Rayes, United States District Judge

         Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Eileen S. Willett (Doc. 29), Petitioner's objections (Doc. 31), and the State's response to those objections (Doc. 32). The R&R addresses Petitioner's (1) petition under 28 U.S.C. § 2254 for a writ of habeas corpus (“Petition”) (Doc. 1), (2) Motion to Dismiss Grounds 1, 2, 3, and 5 (Doc. 18), and (3) First Motion to Amend Petition for Writ of Habeas Corpus (Doc. 19). The R&R recommends that the Court deny the motion to amend, grant the motion to dismiss, and dismiss the Petition with prejudice.

         The Magistrate Judge advised the parties that they had fourteen days from the date of service of a copy of the R&R to file specific written objections with the Court. The Court has considered the objections and responses and has reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo determination of those portions of the R&R to which specific objections are made). For the following reasons, the Court overrules Petitioner's objections and adopts the R&R.

         I. Background

         After being sentenced on April 24, 2012 for the second-degree murder of his wife, Petitioner filed a Notice of Post-Conviction Relief (“PCR”) pursuant to Rule 32 of the Arizona Rules of Criminal Procedure on September 27, 2012. The PCR, which among other things alleged ineffective assistance of trial counsel, was dismissed as untimely by the trial court in October 2012. The trial court stated: “Defendant cannot raise this [ineffective assistance of counsel] claim in an untimely . . . Rule 32 proceeding . . . .” (Doc. 8-1 at 96.)

         Petitioner, proceeding pro se, filed an amended PCR on October 22, 2012. (Id. at 97-101.) The trial court appointed PCR counsel, who on April 22, 2013 filed a Notice of Completion or Post Conviction Review wherein he indicated that he found no colorable claim. (Id. at 105-06.)

         Petitioner, again proceeding pro se, then filed a PCR in July 2013 alleging, among other things, ineffective assistance of trial counsel for not investigating the case, coercing Petitioner into pleading guilty, not explaining to the court the reason for his lengthy absence from the jurisdiction, not raising a constitutional challenge to the delay in prosecution, and not arguing that Petitioner was not competent to stand trial. He did not allege ineffective assistance of PCR counsel. (Id. at 109-17.)

         On November 26, 2013, the trial court issued a minute entry finding that two of Petitioner's claims for ineffective assistance of counsel were precluded and denying on the merits the non-precluded claims. (Id. at 156.) On September 19, 2017, the Arizona Court of Appeals issued its mandate with respect to a memorandum decision wherein it affirmed the trial court's ruling on the PCR. (Id. at 158-161.)

         On March 19, 2014, Petitioner filed a petition for writ of habeas corpus in state court, which was treated as his third PCR. (Id. at 162-69.) Among other things, Petitioner alleged ineffective assistance of trial counsel. This PCR was summarily dismissed as untimely. (Id. at 169-70.) The trial court also denied Petitioner's subsequent motion for reconsideration, and the Arizona Court of Appeals affirmed. (Id. at 171-73.) The appeals court denied Petitioner's request for reconsideration, and later the Arizona Supreme Court denied his petition for review. (Id. at 184).

         On November 6, 2017, Petitioner filed the Petition, alleging: (1) he was denied an Anders review in violation of the Fourteenth Amendment; (2) ineffective assistance of counsel based on counsel's failure to request an Anders review in state court; (3) his plea agreement violates the Fourteenth Amendment because someone else killed his wife; (4) a claim pursuant to Martinez v. Ryan, 566 U.S. 1 (2012); and (5) the State failed to investigate the crime in violation of the Fourteenth Amendment. On September 21, 2018, Petitioner filed and lodged a number of documents, including his motion to dismiss grounds 1, 2, 3, and 5 of the Petition, motion to amend the Petition, a declaration from Miguel Alvarado Ramirez, Sr. in support of the motion to amend (Doc. 20), a copy of the proposed First Amended Petition (Doc. 21), a proposed addendum to the First Amended Petition (Doc. 22), and a proposed affidavit from Miguel Alvarado Ramirez, Sr. in support of the First Amended Petition (Doc. 23).

         II. Discussion

         A. Motion to Amend (Doc. 19)

         Petitioner seeks leave to file a First Amended Petition that seems to allege “[i]neffective assistance of both post-conviction relief counsel and trial counsel . . . .” (Doc. 19; Doc. 21 at 6.) Petitioner's proposed amended petition takes a different direction than his state court PCR and his original habeas petition. For example, he admits that he was “the major/significant contributor to [the victim's] death.” (Doc. 22 at 7.) The amended petition also changes the theory of his ineffective assistance of trial counsel claims. It appears that Petitioner intends to withdraw his claim that trial counsel was ineffective for failing to investigate, for failing to argue that some other person killed the victim, and failing to argue that Petitioner was factually innocent. (Doc. 1 at 6-11; Doc 18; Doc. 19.) Instead, Petitioner's new theory is that trial counsel was ineffective for failing to properly investigate and present mitigation evidence at sentencing. (Doc. 21 at 6; Doc. 22 at 10.) His proposed amended petition alleges that trial counsel was ineffective for not presenting evidence that his victim was addicted to meth and gambling, and regularly used razors to cur herself. (Doc. 22 at 6, 8-10.) He asserts that such evidence would have resulted in a lesser sentence if trial counsel had presented it at sentencing. (Id. at 10.)

         “[L]eave to amend ‘shall be freely given when justice so requires,' Fed.R.Civ.P. 15(a), and this policy is to be applied with extreme liberality.” Desertrain v. City of L.A., 754 F.3d 1147, 1154 (9th Cir. 2014) (citation omitted). “Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” Id. (quotation and citation omitted). ...