Moore v. Ryan

          REPORT AND RECOMMENDATION

          MICHELLE H. BUMS, UNITED STATES MAGISTRATE JUDGE

         TO THE 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).

         BACKGROUND

         Petitioner 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. A-G.)

         On 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.)

         On 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.

(Exh. O.)

         On 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 9, 2018).

         Petitioner 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.

         In their Answer, Respondents argue that Grounds One through Three are procedurally defaulted, and ...