United States District Court, D. Arizona
G. Campbell Senior United States District Judge
before the Court are the petition for writ of habeas corpus
filed by pro se Petitioner Michael Rennie Carter (Doc. 1) and
the Report and Recommendation (“R&R”) issued
by Magistrate Judge Michelle H. Burns (Doc. 13). The R&R
recommends that the petition be denied because
Petitioner's claims are barred by his no contest plea.
Doc. 13 at 6-7. Petitioner objects to the R&R. Doc. 14.
The matter is fully briefed, and no party has requested oral
argument. Docs. 14; 15. For the reasons that follow, the
Court will refer Petitioner's first objection for
reconsideration by Judge Burns and will accept the R&R as
it relates to Petitioner's second ground for relief.
11, 2014, Police received a call that Petitioner was in the
garage of a vacant home belonging to two recently deceased
individuals. Doc. 10-1 at 11. Upon arrival, an officer
recognized Petitioner from a previous incident, and
Petitioner was immediately detained. Id. Presumably
after a search of Petitioner, officers found credit cards and
a drivers license belonging to the deceased individuals in
Petitioner's wallet. Id. Petitioner was charged
with burglary and theft of a credit card. Id. at 2.
Petitioner pleaded no contest to theft of a credit card and
was sentenced to 2.25 years in prison. Doc. 13 at 1.
September 14, 2015, Petitioner sought post-conviction relief
(“PCR”). Id. Petitioner's
court-appointed counsel filed a notice that she could not
raise colorable claims on Petitioner's behalf.
Id. at 3. She requested an extension of time for
Petitioner to file a pro se PCR. Doc. 10-10 at 2. On November
14, 2016, Petitioner filed a pro se PCR, asserting three
claims of ineffective assistance of counsel: (1) counsel
failed to file a motion to suppress evidence seized in
violation of his Fourth Amendment rights; (2) counsel failed
to file a motion to dismiss due to insufficient evidence; and
(3) counsel, in another case pending against Petitioner,
failed to hire an independent expert. Doc. 13 at
trial court found Petitioner's claims “precluded as
having been previously ruled upon or untimely filed or the
Petition lacks sufficient basis in law and fact to warrant
further proceedings.” Doc. 11-7 at 2. The court of
appeals denied relief, finding Petitioner's claims waived
by his no contest plea. Id.; see also State v.
Carter, No. 2 CA-CR 2017-0082-PR, 2017 WL 2645290
(Ariz.Ct.App. June 20, 2017). Petitioner did not seek further
review in state court. Instead, he filed a petition for writ
of habeas corpus, asserting the first two claims of
ineffective assistance of counsel. See Doc. 1. Judge
Burns recommends that the Court deny both claims as barred by
Petitioner's plea. Doc. 13 at 6-13.
Court may accept, reject, or modify, in whole or in part, the
recommendations made by a magistrate judge in a habeas case.
See 28 U.S.C. § 636(b)(1). The Court must
undertake a de novo review of those portions of the R&R
to which specific objections are made. See id.;
Fed.R.Civ.P. 72(b)(3); United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner makes two
objections to the R&R: (1) he would not have accepted a
plea if counsel had advised him that evidence seized was in
violation of his Fourth Amendment rights; and (2) the outcome
of his case would have changed if his counsel had filed a
motion to dismiss for insufficient evidence. Id.
Petitioner's First Objection.
first objection clarifies an argument made in his petition
and warrants referring his case back to Judge Burns for
consideration. The R&R recommends dismissal of
Petitioner's first ground for relief because he failed to
challenge the “knowing, voluntary, or intelligent
nature of his plea.” See Doc 13 at 6; see
also State v. Quick, 868 P.2d 327, 329 (Ariz.Ct.App.
1993) (pleading defendant waives all claims of ineffective
assistance of counsel except those “directly
relating” to entry of his plea). In his petition,
Petitioner argued that counsel was ineffective for failing to
file a motion to suppress the evidence seized prior to his
arrest. Doc. 1 at 12. Petitioner stated that “[h]ad
counsel filed a motion to suppress he would [have]
prevailed[;] . . . therefore, the plea bargain cannot be
intelligently, knowingly, and voluntarily entered.”
first objection, Petitioner asserts that counsel's
ineffective assistance affected the knowing and voluntary
nature of his plea agreement. Doc. 14 at 3. He argues that he
would have insisted on going to trial had he known that the
seizure of evidence violated his Fourth Amendment rights.
Id. at 5. Although, Petitioner mentioned the
voluntary, knowing, and intelligent nature of his plea in his
petition, he did not make the nature of his argument clear
until his objection - that had he been fully informed about
the violation to his constitutional rights he would not have
entered a plea agreement. Given this clarification, which
Judge Burns could not have anticipated, Petitioner appears to
be challenging the nature of his plea. The Court will refer
this case back to Judge Burns to consider this clarified
ground for habeas relief.
Petitioner's Second Objection.
argues that his counsel was ineffective for failing to
investigate the sufficiency of the evidence regarding his
conviction. Doc. 14 at 5. Petitioner does not argue that
counsel's failure to file a motion to dismiss for
insufficient evidence affected his plea. The Court agrees
with the R&R. Petitioner's claim is barred by his
guilty plea. See United States v. Broce, 488 U.S.
563, 569 (1989). / / /