United States District Court, D. Arizona
Honorable Bruce G. Macdonald United States Magistrate Judge
pending before the Court is Petitioner Eduardo Martinez's
pro se Petition Under 28 U.S.C. § 2254 for a
Writ of Habeas Corpus by a Person in State Custody (Non-Death
Penalty) (“Petition”) (Doc. 1). Respondents have
filed a Limited Answer to Petition for Writ of Habeas Corpus
(“Answer”) (Doc. 16). No. reply was filed. The
Petition is ripe for adjudication.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Charge and Sentencing
Arizona Court of Appeals stated the facts as follows:
On the night of January 7, 2012, Martinez drove a
friend's car to a drug store, where he picked up two
cases of beer and presented them to the cashier at the front
of the store, as if for payment. As the cashier began to ring
up the purchase, however, Martinez pulled the beer off the
counter and ran out the front door into the parking lot. As
he neared the driver's side of a parked vehicle, the
store manager, who had been outside, ran towards the car and
Martinez threw one of the cases of beer at her, hitting her
in the stomach. He then picked up the other case of beer,
which he had set down on the pavement, and put it in the car.
Upon hurriedly backing out of the parking space, Martinez
nearly struck the manager and a bystander. He was apprehended
several months later, and in a police interview admitted
taking the cases of beer without paying for them.
Answer (Doc. 16), Ariz. Ct. of Appeals, No. 2 CA-CR
2013-0043, Memorandum Decision 10/29/2013 (Exh.
“A”) (Doc. 17) at 4. Following a jury trial,
Petitioner was found guilty of one count of robbery and two
counts of endangerment. Answer (Doc. 16), Ariz. Superior Ct.,
Pima County, No. CR20121612-001, Minute Entry 12/6/2012 (Exh.
“B”) (Doc. 17) at 14. On January 22, 2013,
Petitioner was sentenced to a presumptive ten (10) year term
of imprisonment for the robbery charge, as well as two
presumptive two and one half (2.5) year sentences for the
endangerment counts. Answer (Doc. 16), Ariz. Superior Ct.,
Pima County, No. CR20121612-001, Minute Entry 1/22/2013 (Exh.
“C”) (Doc. 17) at 18-19. Petitioner's terms
of imprisonment were ordered to run concurrently.
Id., Exh. “C” at 18-19.
January 29, 2013, counsel for the Petitioner filed a Notice
of Appeal from the judgment and sentence. See Answer
(Doc. 16), Ariz. Superior Ct., Pima County, No.
CR20121612-001, Def.'s Not. of Appeal 1/29/2013 (Exh.
“D”) (Doc. 17). On May 13, 2013, counsel for
Petitioner filed an Opening Brief asserting a single issue
for review. Answer (Doc. 16), Ariz. Ct. of Appeals, No. 2
CA-CR 2013-0043, Appellant's Opening Br. 5/13/2013 (Exh.
“E”) (Doc. 17). Petitioner argued that the trial
court's alleged failure to instruct the jury on the
lesser included offenses of Theft and Attempted Robbery
denied him due process and his constitutional right to a fair
trial. Id., Exh. “E” at 29-32.
October 29, 2013, the Arizona Court of Appeals issued its
decision affirming Petitioner's conviction and sentences
but vacating the criminal restitution order
(“CRO”) entered by the trial court against
Petitioner. See Answer (Doc. 16) Ariz. Ct. of
Appeals, No. 2 CA-CR 2013-0043, Mem. Decision 10/29/2013
(Exh. “A”) (Doc. 17). Reviewing for fundamental
error, the appellate court stated that “[a] court must
instruct the jury on a lesser-included offense of the crime
charged if the evidence supports the requested instruction[;]
. . . [h]owever, a lesser-included instruction is not
required merely because a jury could disbelieve all the
evidence of the greater charge except the elements of the
lesser.” Id., Exh. “A” at 5
(citing State v. Vickers, 159 Ariz. 532, 542, 768
P.2d 1177, 1187 (1989); then citing Ariz. R. Crim. P. 23.3;
then citing State v. Bolton, 182 Ariz. 290, 309, 896
P.2d 830, 849 (1995)). The appellate court further stated
that “[s]uch an instruction is necessary only where a
jury could ‘rationally fail to find the distinguishing
element of the greater offense.'” Answer (Doc. 16),
Exh. “A” at 5-6 (citing State v. Krone,
182 Ariz. 319, 323, 897 P.2d 621, 625 (1995)). Based on
Arizona law, the appellate court posited that Petitioner
“was entitled to an instruction on theft if a jury
could reasonably find from the evidence in the record that
his conceded use of force was not an attempt to retain
control of the beer he had in his arms when he exited the
store.” Answer (Doc. 16), Exh. “A” at 6-7
(footnote omitted). The appellate court considered the record
and concluded that “because Martinez's conduct was
inconsistent with a reasonable finding that he lacked any
motive ‘to coerce surrender of property or to prevent
resistance to [his] taking or retaining property by his use
of force, § 13-1902(A), a theft instruction was not
required.” Id., Exh. “A” at 10
(citing State v. Routhier, 137 Ariz. 90, 99, 669
P.2d 68, 77 (1983)) (alterations in original). As such, the
appellate court upheld the trial court's denial of
Petitioner's request for a theft instruction. Answer
(Doc. 16), Exh. “A” at 11. The appellate court
further held that the trial court did not err by refusing to
give an attempted robbery instruction. Id., Exh.
“A” at 11-12. The appellate court did find
fundamental error in the trial court's CRO, because it
was imposed prior to the expiration of Petitioner's
sentence. Id., Exh. “A” at 12 (citing
State v. Lopez, 231 Ariz. 561 ¶ 2, 298 P.3d
909, 910 (Ct. App. 2013)). As such, the court of appeals
vacated the CRO, but “affirm[ed] Martinez's
convictions and sentences in all other respects.”
Answer (Doc. 16), Exh. “A” at 12. On January 9,
2014, the court of appeals issued its mandate indicating that
Petitioner had not filed a motion for reconsideration or
sought review with the Arizona Supreme Court. Answer (Doc.
16), Ariz. Ct. of Appeals, No. 2 CA-CR 2013-0043, Mandate
1/9/2014 (Exh. “G”) (Doc. 17).
Post-Conviction Relief Proceeding
November 18, 2013, Petitioner filed his Notice of
Post-Conviction Relief (“PCR”). Answer (Doc. 16),
Ariz. Superior Ct., Pima County, No. CR20121612-001,
Def.'s Notice of PCR 11/18/2013 (Exh. “H”)
(Doc. 17). On December 16, 2013, the trial court appointed
counsel to Petitioner for the Rule 32 proceeding.
See Answer (Doc. 16), Ariz. Superior Ct., Pima
County, No. CR20121612-001, Notice 12/16/2013 (Exh.
“I”) (Doc. 17). On August 7, 2014, Petitioner
timely filed his Petition for Post-Conviction Relief. Answer
(Doc. 16), Ariz. Superior Ct., Pima County, No.
CR20121612-001, Pet.'s Pet. for PCR (Exh.
“K”) (Doc. 17); see also Answer (Doc.
16), Ariz. Superior Ct., Pima County, No. CR20121612-001,
Order 2/18/2014 & 3/21/2014 & 6/2/2014 &
7/10/2014 (Exh. “J”) (Doc. 17).
asserted two (2) claims of ineffective assistance of trial
counsel 1) for failing to have a court interpreter assist
Petitioner during trial and “other critical junctures
of the case”; and 2) for failing to request a jury
instruction for the lesser included offense as to the
endangerment counts. See Answer (Doc. 16), Ariz.
Superior Ct., Pima County, No. CR20121612-001, Pet.'s
Pet. for PCR (Exh. “K”) (Doc. 17). Petitioner
also asserted a single claim of ineffective assistance of
appellate counsel for an alleged failure to raise the lesser
included jury instruction as to endangerment on appeal.
See id., Exh. “K.” On October 28, 2014,
the Rule 32 court denied relief and dismissed
Petitioner's petition. See Answer (Doc. 16),
Ariz. Superior Ct., Pima County, No. CR20121612, Ruling, In
Chambers Re: Petition for Post Conviction Relief 10/28/2014
(Exh. “N”) (Doc. 18). The Rule 32 court
delineated the test for ineffective assistance of counsel,
stating “[t]o state a colorable claim of ineffective
assistance of counsel, Petitioner must show 1) that
counsel's performance fell below objectively reasonable
standards, and 2) that this performance prejudiced the
defendant.” Id., Exh. “N” at 18
(citing Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); then citing State v.
Jackson, 209 Ariz. 13, 14, 97 P.3d 113, 114 (Ct. App.
Petitioner's claimed need for an interpreter, the Rule 32
court noted that “[t]he trial court is in the best
position to determine whether a defendant ‘possesses
the requisite degree of fluency in the English language so
that his right to confront witnesses, right to cross-examine
those witnesses and right to competent counsel will not be
abridged.'” Answer (Doc. 16), Exh. “N”
at 19 (quoting State v. Natividad, 111 Ariz. 191,
194, 526 P.2d 730, 733 (1974); then citing Pointer v.
Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923
(1965)). The Rule 32 court highlighted that “Petitioner
interacted with pre-trial services, two English speaking
attorneys, two different Divisions in this court, and the
probation department in the creation of the pre-sentence
report[, ] . . . [and] wrote an articulate, largely
grammatically correct Change Plan while awaiting sentencing
and a letter of similar skill and proficiency in this Rule 32
process.” Answer (Doc. 16), Exh. “N” at 20.
The Rule 32 court further noted no one that Petitioner came
in contact with indicated the need for an interpreter, nor
did Petitioner request “an interpreter of the Court,
even though he was directly addressed during hearings, and
although he requested (and received) a new attorney[, ] . . .
rejected two pleas and made two Donald records[, ] .
. . and fully participated in his pre-sentence report.”
Id., Exh. “N” at 20. The Rule 32 court
“[c]onsider[ed] Petitioner's experience with the
justice system and the procedural history of this case, . . .
[and] d[id] not question Petitioner's ability to
understand the proceedings; [and found that] he was present
and a full participation.” Id., Exh.
“N” at 21. As such, the Rule 32 court held that
counsel did not fall below “objectively reasonable
standards” regarding Petitioner's alleged need for
an interpreter. Id., Exh. “N” at 21.
the Rule 32 court considered the jury instructions provided
at trial regarding endangerment. Answer (Doc. 16), Exh.
“N” at 21-22. The Rule 32 court noted “that
the Jury was given the option of imminent death or
physical injury as the two ways that endangerment could have
been committed[, ] [and] [b]ecause there was an issue of
whether there was a risk of imminent death, the court used a
special verdict pursuant to State v. Carpenter, 141
Ariz. 29, 684 P.2d 910 (App. 1984).” Answer (Doc. 16),
Exh. “N” at 21 (emphasis in original). The Rule
32 court further noted that “[h]ad the jury not
unanimously found the Petitioner endangered each
victim with a substantial risk of imminent death, they would
have convicted him of only the lower class of
endangerment[.]” Id., Exh. “N” at
22 (emphasis in original). In light of the jury instructions
and special interrogatory, the Rule 32 court held that
neither trial nor appellate counsel were ineffective
regarding the endangerment instruction. Id., Exh.
“N” at 22-23.
December 22, 2014, Petitioner sought review by the Arizona
Court of Appeals of the denial of his PCR petition.
See Answer (Doc. 16), Ariz. Ct. of Appeals, No. 2
CA-Cr 2014-0429-PR, Pet.'s Pet. for Review (Exh.
“P”) (Doc. 18). Petitioner asserted that
“[t]he court's ruling [regarding Petitioner's
need for an interpreter] [wa]s contrary to all evidence [sic]
presented in Mr. Martinez'[s] petition for post
conviction relief[.]” Id., Exh.
“P” at 29. Petitioner further asserted that
“[t]he court's reliance on State v. Natividad [wa]s
totally misplaced.” Id., Exh. “P”
at 29. Petitioner reiterated the evidence presented to the
Rule 32 court in support of his alleged need for an
interpreter and argued that the Natividad decision
required a hearing to establish whether Petitioner is
entitled to the relief sought. Id., Exh.
“P” at 30-34. Petitioner did not raise any other
issues for review. See Answer (Doc. 16), Exh.
“P.” On March 12, 2015, the Arizona Court of
Appeals granted review, but denied relief. See
Answer (Doc. 16), Ariz. Ct. of Appeals, No. 2 CA-CR
2014-0429-PR, Mem. Decision 3/12/2015 (Exh. “Q”)
(Doc. 18). The appellate court reviewed Petitioner's
initial PCR petition and the Rule 32 court's decision.
Id., Exh. “Q” at 77-79. The appellate
court noted “that this case is readily distinguishable
from Natividad, which Martinez relies on for the
proposition that he is entitled to an evidentiary
hearing.” Id., Exh. “Q” at 80. The
appellate court explained that “[i]n
Natividad, our supreme court remanded for such a
hearing, in part, because the record was ‘barren of a
reliable indication as to the defendant's ability to
comprehend' or speak English.” Id., Exh.
“Q” at 80 (quoting State v. Natividad,
111 Ariz. 191, 193, 526 P.2d 730, 732 (1974)). The appellate
court reviewed the record regarding the evidence supporting
Petitioner's English abilities, noting:
By way of further example of his proficiency in English, when
the trial court asked Martinez at sentencing if he wanted to
say anything, he responded as follows:
Yeah, Your Honor. I just want to apologize to the victim
here. That night I was on drugs that did bad stuff to me. I
was, I know I was acting - some parts I barely remember, but,
since I've seen the video and everything, that wasn't
really me. I[t] was some other person. I wouldn't act
like that. I just want to apologize to the victim. That's
(Doc. 16), Exh. “Q” at 80 n.4 (alterations in
original). The appellate court also remarked that “the
record before us does not suggest that at any point Martinez
indicated in any way that he did not understand the
proceedings” and pointed out that “Martinez was
aware of [the option to have an interpreter], yet he did not
ask the trial court to appoint one when, according to him,
his attorney had denied his request.” Id.,
Exh. “Q” at 81. The appellate court held that
“the trial court correctly concluded Martinez did not
sustain a claim of ineffective assistance of counsel.”
Id., Exh. “Q” at 81 (citing State v.
McDaniel, 136, Ariz. 188, 198, 665 P.2d 70, 80 (1983)).
April 9, 2015, Petitioner filed his Petition for Review to
the Arizona Supreme Court. See Answer (Doc. 16),
Arizona Supreme Court, No. CR-15-0123-PR, Pet.'s Pet. for
Review (Exh. “R”) (Doc. 18). On September 22,
2015, the Arizona Supreme Court denied review. See
Answer (Doc. 16), Arizona Supreme Court, No. CR-15-0123-PR,
Memorandum 9/22/2015 (Exh. “S”) (Doc. 18). On
October 8, 2015, the Arizona Court of Appeals issued its
mandate. See Answer (Doc. 16), Ariz. Ct. of Appeals,
No. 2 CA-CR 2014-0429-PR, Mandate 10/8/2015 (Exh.
“T”) (Doc. 18).
The Instant Habeas Proceeding
November 6, 2015, Petitioner filed his Petition Under 28
U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in
State Custody (Doc. 1). Petitioner claims three (3) grounds
for relief. First, Petitioner alleges a “[v]iolation of
the 14th Amend[ment] of the U.S. Constitution; Defendant was
denied the basic right to Due Process by his counsel's
failure to make the appropriate legal motions, etc. to obtain
a Court Interpeter [sic] after Defendant informed him he
needed one[.]” Petition (Doc. 1) at 6. Petitioner
asserts that this “depriv[ed] him to interact [sic] in
his Court Proceedings in a knowing [and] informed manner, . .
. [and did not] allow him to be an active participant in
his pre-trial, trial, [and] sentencing proceedings.”
Id. Petitioner notes that “[i]n previous Court
cases the Defendant had a court interpreter assigned to him
but in others he did not[;]” however, “[d]ue to
the lack of this interpreter the Defendant didn't
understand what was going on during Court proceedings in a
knowing [and] intelligent manner.” Id. Second,
Petitioner alleges a “[v]iolation of the 14th
Amend[ment] of the U.S. Constitution[, ] [because] [t]rial
counsel was ineffective in failing to request lesser included
offense instructions to the endangerment counts.”
Petition (Doc. 1) at 7. Third, Petitioner further asserts
that appellate counsel was ineffective for the same failure
to request a lesser included offense instruction.
April 6, 2016, Respondents filed their Limited Answer (Doc.
16) asserting that Petitioner had only advanced unexhausted
claims in his federal habeas petition. Respondents argue that
Petitioner's first claim regarding a court interpreter
was only presented in the state court as an alleged Sixth
Amendment violation, with only passing reference to due
process. Answer (Doc. 16) at 8-9. Respondents further argue
that Petitioner's second claim regarding the
lesser-included-offense jury instruction was never referred
to as a Fourteenth Amendment violation in the state courts,
nor was it ever presented to the Arizona Court of Appeals.
Id. at 9-10. Petitioner did not file a reply.
STANDARD OF ...