United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BUMS, UNITED STATES MAGISTRATE JUDGE
HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT COURT:
Petitioner Deeandre Moore has filed a pro se Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc.
1). Respondents filed a Limited Answer (Doc. 10), and
Petitioner filed a Reply (Doc. 11).
was convicted pursuant to a plea agreement in Maricopa County
Superior Court, case #CR-2013-005-001, of possession or use
of dangerous drugs with two prior felony convictions, and was
sentenced to 8.5 years in prison. (Docs. 1, 4; Doc. 10, Exhs.
August 7, 2015, Petitioner filed a timely notice of
post-conviction relief. (Exh. H.) The superior court
appointed counsel, but Petitioner subsequently filed a motion
to represent himself, which the court granted. (Exhs. I, J,
K.) On May 2, 2016, Petitioner filed his pro per PCR
petition, alleging that: “he was unlawfully detained
and arrested; the police officers submitted false
departmental reports; his indictment was insufficient; the
Court unlawfully suppressed evidence; his constitutional
right to confrontation was violated; and that the State
committed prosecutorial misconduct by failing to disclose
evidence, engaged in burden shifting, and used copies of
evidence.” (Exh. O; Exhs. L, M, N.) Petitioner also
alleged that his counsel was ineffective for suppressing
evidence that would have been helpful on the forgery, and for
preventing Petitioner from enjoying the protections afforded
by Proposition 200. (Exh. O; Exhs. L, M, N.)
September 19, 2016, the court dismissed Petitioner's PCR
petition, finding, in pertinent part:
Defendant's decision to enter a guilty plea has the
effect of waiving all non-jurisdictional defects, including
alleged violations of Defendant's constitutional rights.
... Prior to entering his plea of guilty, Defendant informed
the Court that he intended to waive his constitutional rights
and plead guilty. ... Moreover, he informed the Court that he
read, understood and voluntarily agreed to all of the terms
in the plea agreement, including paragraph 6 of the plea
agreement, which states, “the Defendant hereby waives
and gives up any and all motions, defenses, [or] objections
... which he has made or raised, or could assert thereafter
... .” Defendant does not dispute the validity of his
plea agreement. Because Defendant's guilty plea was
valid, Rules 32.2 precludes Defendant from asserting the
following claims: any alleged unlawful arrest and search; an
alleged violation of Defendant's fourth or sixth
amendment rights as set forth in his Petition for
Post-Conviction Relief; failure of the State to disclose
evidence, shift the burden, or use copies of evidence, and
insufficiency of the evidence and indictment.
(Exh. O) (citations omitted). As to the ineffective
assistance of counsel claims, the court found:
Defendant claims that his attorney suppressed evidence that
would have been helpful on the Forgery count. As part of the
plea agreement, the State dismissed the Forgery count.
Defendant also claims that counsel's conduct prevented
Defendant from enjoying the protections afforded by
Proposition 200. In this instance, Defendant was charged with
an offense involving methamphetamines. Therefore, Defendant
is not entitled to the protection of Proposition 200.
Defendant also asserts a claim regarding his alias that is
un-comprehensible and fails to establish ineffective
assistance of counsel. Defendant has failed to show either
deficient performance or prejudice.
October 25, 2016, Petitioner filed a petition for review with
the Arizona Court of Appeals “reiterat[ing] the issues
he raise[d] in the trial court [and] impermissibly rais[ing]
numerous issues for the first time in this Court.”
(Exh. Q; Exhs. R, P.) On January 9, 2018, the court of
appeals denied the petition for review. The court stated:
¶ 4 The superior court summarily dismissed the petition,
holding that by pleading guilty Moore waived all
non-jurisdictional claims, including alleged violations of
constitutional rights. The court further concluded that Moore
had failed to show ineffective assistance of counsel. The
court found that Moore was not convicted of the forgery
charge, was ineligible for probation under A.R.S. §
13-901.01(H)(4), and set forth an
“un-comprehensible” argument regarding his name.
Moore petitions this court for review, re-alleging the claims
he advanced in the superior court and raising new claims.
¶ 5 We will not reverse the superior court's denial
of post-conviction relief unless the defendant shows a clear
abuse of discretion. State v. Poblete, 227 Ariz.
537, 538, ¶ 1 (App. 2011). We discern no abuse of
discretion here. First, the superior court correctly held
that Moore waived all non-jurisdictional defenses by
accepting the plea agreement. See State v. Reed, 121
Ariz. 547, 548 (App. 1979). Next, the superior court
correctly held that Moore failed to present a colorable claim
of ineffective assistance of counsel. To state a colorable
claim of ineffective assistance of counsel, a defendant must
show that counsel's performance fell below objectively
reasonable standards and that the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S.
668, 687-96 (1984). Moore's claims of ineffective
assistance of counsel were based on a dismissed charge and a
statute for which he was ineligible. He therefore did not
show either deficient performance or prejudice. Finally, we
do not address the claims that Moore raises for the first
time in his petition to this court. A petition for review may
not present issues not first presented to the trial court.
State v. Bortz, 169 Ariz. 575, 577 (App. 1991);
Ariz. R. Crim. P. 32.9(c)(1)(ii); see also State v.
Swoopes, 216 Ariz. 390, 403, ¶ 42 (App. 2007)
(holding that there is no review for fundamental error in a
post-conviction relief proceeding).
¶ 6 Accordingly, we grant review but deny relief.
State v. Moore, 2018 WL 328732 (Ariz.Ct.App. January
raises four grounds for relief in his habeas petition. In
Ground One, he alleges he was searched and/or seized in
violation of the Fourth Amendment. In Ground Two, Petitioner
claims his Sixth Amendment rights were violated because he
was denied conflict-free counsel and the right to represent
himself. In Ground Three, he contends his Fourteenth
Amendment due process rights were violated because of
pre-indictment delay. In Ground Four, he asserts that he
received ineffective assistance of counsel, in violation of
the Sixth and Fourteenth Amendments.
their Answer, Respondents argue that Grounds One through
Three are procedurally defaulted, and ...