Viramontes v. Ryan

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE

         On March 14, 2016, Petitioner Robert Viramontes, who is confined in the Arizona State Prison Complex-Lewis, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) On October 19, 2016, Respondents Charles Ryan and Attorney General of the State of Arizona filed a Limited Answer, arguing that Petitioner's claims are both untimely and procedurally defaulted. (Doc. 22.) On November 16, 2016, Petitioner filed a pro se Traverse. (Docs. 23, 24.) On May 4, 2018, Magistrate Judge Bernardo P. Velasco issued a Report and Recommendation, recommending that this Court find the Petition timely, grant it, and remand to the Arizona state court for further proceedings. (Doc. 29.) Respondents filed Objections on June 8, 2018, and Petitioner (now represented by the Federal Public Defender's Office) filed a Response on July 23, 2018. (Docs. 34, 44.) Because the Report and Recommendation did not address Respondents' procedural-default defense, the Court ordered supplemental briefing on that issue. (Doc. 48.) Petitioner filed his Supplemental Brief on October 24, 2018, and Respondents filed their Response on November 14, 2018. (Docs. 51, 52.)

         I. Factual & Procedural Background

          A. Arizona's Sentencing Scheme

         Prior to January 1, 1994, a defendant convicted of first-degree murder could be sentenced to life with the possibility of parole after 25 years. See State v. Fierro, 804 P.2d 72, 90 (Ariz. 1990). In 1993, Arizona enacted its truth-in-sentencing law and eliminated parole for crimes committed on or after January 1, 1994. See State v. Rosario, 987 P.2d 226, 230 (Ariz.Ct.App. 1999). Defendants convicted of first-degree murder on or after that date face three possible sentences: death, natural life (life with no chance of release on any basis), or life with the possibility of “release” after 25 years. See State v. Martinez, 100 P.3d 30, 33 (Ariz.Ct.App. 2004). “Release” may be granted only through executive clemency (e.g., a pardon)-a form of relief unlikely to be granted to defendants convicted of first-degree murder. See State v. Vera, 334 P.3d 754, 760 (Ariz.Ct.App. 2014).

         Despite the elimination of parole, prosecutors continued to offer parole in plea agreements, and judges continued to accept such agreements and impose sentences of life with the possibility of parole. See, e.g., id. (noting that the sentencing court was mistaken about the availability of parole); Governor's Letter to Ariz. Sec'y of State (Apr. 30, 2018), available at https://www.azleg.gov/govlettr/53leg/2r/sb1211.pdf (expressing puzzlement as to why parole sentences continued to be imposed after January 1, 1994). In response, the Arizona legislature passed Senate Bill 1211, which honors those plea agreements notwithstanding the elimination of parole. See Ariz. Rev. Stat. § 13-718. No form of relief exists for defendants who received the same sentence following conviction at trial.

         B. Petitioner's Conviction & Sentence

          Petitioner was charged with first-degree murder, first-degree burglary, and two counts of aggravated assault, stemming from an incident that occurred on December 25, 1998. (Doc. 39-1 at 1-2.)^[1] Prior to trial, Petitioner's attorney, Daniel R. Grills, sent Petitioner a letter communicating a plea offer from the State, which would require Petitioner to spend at least 20 years in prison. (Doc. 1-2, Ex. I, at 28.) Mr. Grills described the alternative as “fac[ing] a possibility of the rest of your life in prison.” (Id.) During a subsequent pretrial hearing, the following exchange took place:

The State: Your Honor, just so we can put it on the record, I know that we had - this is a request that I would like to make. I know that previously you've asked us to see if we can come to any agreement upon a - a possible plea agrement [sic] in this case. . . . I was wondering if the Court would be willing to advise Mr. Viramontes, at this time, of the sentencing - possible sentencing range that he is looking at, just so that we can get it on the record that he has been made aware of the possible sentencing range and he still chooses not to - not to - The Court: Is there some offer that the State still extends to the defendant?

. . . .

The State: The offer that I was going to make was the defendant plead to second degree murder with one count of aggravated assault, dangerous nature, with a floor - a minimum of 20 years as the sentence.

. . . .

The Court: Without that, the first degree murder carries a potential life sentence, probation at 25 years or no probation?

The State: The - it would be - first degree would be - I believe, it would be probation after 25.

. . . .

The Court: Mr. Grills, have you discussed that with - this offer with your client or do you wish to?

Mr. Grills: I have - Your Honor, I think there would have been a chance if it wasn't set on the floor, as he called it, of 20. I explained to the defendant he is 19, if he got to 20, you know, he could be out before he is 40, otherwise he's looking at possibly never getting out of prison, but I'm satisfied, Your Honor, that as he sits here today, he is not interested in that plea.

Petitioner: (Nods head.)

The Court: All right. So that you know, Mr. Viramontes, the potential penalty for first degree murder, with which you are charged, is life; if you're convicted of first degree murder, you must receive life.

. . . .

Yeah, so the sentences would have to run together, even if you were convicted of all of them, except that Count 4, which is the 7 to 21, could be consecutive, but if you were convicted on Count 1 [i.e., first-degree murder], it wouldn't matter because that's a life sentence anyway and according to the offer made by the State then you would be looking at a maximum of - a minimum of 20 years, according to their offer . . . .

. . . .

So as long as you understand that, Mr. Viramontes, and it's entirely up to you whether you wish to go to trial or whether you wish to accept the State's offer and if you want to discuss it further with your attorney, I'll give you time to do it. If you don't need to, then you can let me know that, too.

Petitioner: Your Honor, I don't want it.

The Court: You don't want the plea offer?

Petitioner: No, sir.

(Doc. 39-3 at 14-20.)

         Petitioner was convicted on all counts. (Doc. 34-1, Ex. B, at 253-54.) At the sentencing hearing, Mr. Grills argued: “[Petitioner's crime] is totally out of character and I hope that Your Honor would consider the life sentence with parole at 25 years is more than adequate sentencing and I think that some people might even argue that itself, might be excessive.” (Id. at 261-62.) The trial court did not comment on Mr. Grills' erroneous belief that life with the possibility of parole was an available sentence. (See Id. at 262-65.)

         On the first-degree murder conviction, the trial court ordered “that [Petitioner] be imprisoned for life, no release eligibility until the completion of 25 years of service of the sentence.” (Id. at 263.) The judgment reflects a sentence on the murder conviction of “Life With No Release On Any Basis Until The Completion of the Service of 25 Calendar Years.” (Doc. 1-2, Ex. M, at 175.) Petitioner also received concurrent 10-year sentences on both aggravated assault convictions and a consecutive 10.5-year sentence on the first-degree burglary conviction. (Id. at 176-78.) Petitioner appealed to the Arizona Court of Appeals, which affirmed, and to the Arizona Supreme Court, which denied review. (Doc. 1-1, Ex. C, at 52-61; Doc. 22-1, Ex. B, at 5.) He did not seek review by the U.S. Supreme Court. (Doc. 1 at 3.)

         C. State Post-Conviction Proceedings

         On January 8, 2002, Petitioner filed, through counsel, his first petition for post-conviction relief (“PCR”), alleging that Mr. Grills provided ineffective assistance of counsel by failing to challenge the felony-murder rule on due process grounds; failing to challenge expert testimony restrictions imposed by the trial court; withdrawing his request for an expert to testify about Petitioner's head injuries during an evidentiary hearing; and failing to adequately challenge the admissibility of Petitioner's confession. (Doc. 22-1, Ex. E, at 14-16.) Both the PCR court and Arizona Court of Appeals denied relief, and Petitioner did not seek review in either the Arizona Supreme Court or the U.S. Supreme Court. (Doc. 1-1, Ex. G, at 114-18; Doc. 22-1, Ex. F, at 37-42.)

         On April 17, 2014, Petitioner, now pro se, filed a second PCR notice, asserting that he had recently been informed by the Arizona Department of Corrections that his only chance at release was through executive clemency; that Mr. Grills misadvised him that he would be released after 25 years if convicted at trial; and that the truth-in-sentencing law is unconstitutionally vague. (Doc. 39-14 at 4-5.) Petitioner indicated that the second PCR notice was based on newly discovered material facts which probably would have changed his verdict or sentence. (Id. at 2.)

         On August 26, 2014, Petitioner, through counsel, filed his second PCR petition. (Doc. 1-2, Ex. I, at 18-26.) He raised the following grounds for relief:

1. Mr. Grills rendered ineffective assistance by misadvising him that he would be eligible for parole after 25 years, leading him to reject the plea agreement;

2. his first PCR attorney, R. Lamar Couser, rendered ineffective assistance by failing to raise Mr. Grills' error in the first PCR petition; and

3. the trial court erred by misadvising him that he would be eligible for “probation” (according to Petitioner, a clearly mistaken reference to “parole”) after 25 years, when Arizona's truth-in-sentencing law foreclosed that possibility.

(Id. at 23-25.)

         On October 31, 2014, the PCR court denied Petitioner's second PCR petition. (Id., Ex. L, at 108-11.) The PCR court determined that Petitioner's first claim was precluded because it should have been raised in the initial PCR proceeding, and because Petitioner failed to establish that review in a second PCR proceeding was proper under the newly-discovered-facts exception. (Id. at 110.) The PCR court also determined that Petitioner's second claim was non-cognizable under Rule 32 of the Arizona Rules of Criminal Procedure. (Id. at 109-10.) The PCR court found that Petitioner's third claim was precluded because it did not track any of the five cognizable bases for relief available in a successive PCR proceeding. (Id. at 111.) The PCR court also found that Petitioner's third claim was meritless because, contrary to Petitioner's allegations, it had not advised Petitioner that parole was available. (Id. at 110.)^[2]

         On November 24, 2014, Petitioner filed a pro se motion for reconsideration. (Id., Ex. M, at 114-19.) Petitioner denied abandoning his claim that the truth-in-sentencing law is unconstitutionally vague. (Id. at 114-15.) He contended that his second PCR notice was sufficient to raise the issue and that, although the issue was omitted from the second PCR petition, the PCR court should have nevertheless ruled on it. (Id.) Turning to the merits, Petitioner argued that the truth-in-sentencing law's vagueness caused the trial court and his attorney to misadvise him that he would be eligible for parole after 25 years. (Id. at 118.) Pointing out that Arizona courts routinely imposed sentences in violation of the truth-in- sentencing law, Petitioner argued that his realization that he cannot be paroled was newly discovered evidence warranting relief. (Id. at 116-18.)

         The PCR court denied the motion on December 15, 2014, finding that Petitioner had indeed abandoned his claim by omitting it from his brief. (Id., Ex. N, at 181.) The PCR court also determined both that the truth-in-sentencing law is not vague and that Petitioner's claim of ignorance was without factual support. (Id. at 181-82.)

         Petitioner (still pro se) filed a petition for review in the Arizona Court of Appeals. (Doc. 22-1, Ex. G, 44-48.) He raised three issues:

1. There are no procedural waivers for an unconstitutional sentence;

2. requiring him to raise ineffective-assistance claims in PCR proceedings (where he does not have a protected right to effective counsel) instead of his direct appeal (where he does have a protected right to effective ...