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