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Martinez v. Ryan

United States District Court, D. Arizona

February 25, 2019

Eduardo Martinez, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Initial Charge and Sentencing

         The Arizona Court of Appeals stated the facts[1] 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.[2] 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.

         B. Direct Appeal

         On 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.

         On 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).

         C. Post-Conviction Relief Proceeding

         On 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).

         Petitioner 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. 2004)).

         Regarding 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.

         Next, 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.

         On 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 it.

         Answer (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)).

         On 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).

         D. The Instant Habeas Proceeding

         On 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. Id.

         On 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.

         II. STANDARD OF ...


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