United States District Court, D. Arizona
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE
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.)
Factual & Procedural Background
A. Arizona's Sentencing Scheme
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.
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
(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.
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.) 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
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.)
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.)
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.)
State Post-Conviction Proceedings
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.)
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.)
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.)
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.)
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.)
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.)
(still pro se) filed a petition for review in the Arizona
Court of Appeals. (Doc. 22-1, Ex. G, 44-48.) He raised three
1. There are no procedural waivers for an unconstitutional
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 ...