Hernandez v. Ryan

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          James F. Metcalf United States Magistrate Judge

         I. MATTER UNDER CONSIDERATION

         Petitioner, presently incarcerated in the Red Rock Correctional Center at Eloy, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 5, 2018 (Doc. 1). On September 10, 2 018 Respondents filed their Limited Answer (Docs. 10-22). Petitioner filed a Reply on October 11, 2018 (Doc. 24).

         The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL BACKGROUND

         In disposing of Petitioner's direct appeal, the Arizona Court of Appeals described the factual background as follows:

¶2 In the early morning of October 28, 2009, Defendant and an accomplice forcibly entered a residence, armed with semiautomatic handguns, intending to burglarize the house. Present in the house were adults Leyva, Peralta and Martinez. Also present were Leyva's three minor children, ages one, four and six.

¶3 Once inside the house, Defendant and the accomplice forced all the occupants into one room and took turns guarding the occupants at gun point. Defendant and the accomplice fled after police arrived.

Defendant was arrested shortly thereafter and identified as one of the men who entered the home and restrained the victims. Defendant later admitted participating in the burglary.

(Exhibit S, Mem. Dec. at ¶¶ 2-3.) (Exhibits to the Answer, Docs. 10-22, are referenced herein as “Exhibit .”)^[1]

         B. PROCEEDINGS AT TRIAL

         On November 5, 2009, the State indicted Defendant on: (1) first-degree burglary, a class 2 dangerous felony; (2) three counts of kidnapping (relating to the adults), class 2 dangerous felonies; (3) three counts of kidnapping (relating to the children), alleged as dangerous crimes against children and class 2 dangerous felonies; (4) three counts of armed robbery, class 2 dangerous felonies; and (5) misconduct involving weapons, a class 4 felony.^[2] (Exhibit A, Indictment.) The state filed an Allegation of Aggravating Circumstances. (Exhibit B.) “The State later dismissed one of the armed robbery counts and the misconduct involving weapons charge.” (Exhibit S, Mem. Dec. at ¶ 4, n.2.)

         Petitioner, represented by counsel Cain, proceeded to a settlement conference on February 23, 2010 before Judge Steinle, where the prosecution reviewed its case and the likelihood of a life sentence at trial, and defense counsel asserted the defense at trial would be duress which would require Petitioner to testify. The judge reviewed the unaggravated sentencing exposure of 57 years, the potential for aggravating factors, and the likelihood of an aggravated sentence between 50 and 90 years, and the potential for a 17-year sentence under the plea offer. (Exhibit E, R.T. 2/23/10.) Addressing the duress defense, the judge cautioned:

         THE COURT:

I've used the duress defense in the past. Juries don't like the duress defense. They have to believe everything that you say in order to find duress. And my guess. when they look at your credibility and they weigh it against the children coming into court and the adults talking about what you did. Based upon the number of trials I did, probabilities are they're not going to believe you, and then it's going to be too late.

When the victims come in and point over at table and go, “That's the man that did this thing, ” you can get up there and say, “'I did it, but I did it because someone threatened me, ” I don't think the jury's going to believe your defense.

Ms. Cain tried a lot of cases in my court over the last five years. She is very persuasive to juries. But the one time she tried to persuade them about a duress defense, the jury found the defendant guilty and on a very short deliberation. It's not an easy defense to do.

So you have a hard choice to make. What are you going to do with your life? Are you going to accept the plea that will give you a chance at a life? Or are you going to go ahead and go to trial, and if you lose at trial spend the rest of your life in a jail cell?

You're going to have to make that choice. Do you have any questions of me?

THE DEFENDANT: No. I'm going to go on with the trial because I'm innocent.

THE COURT: And without going into any great detail, are you innocent because you weren't there or are you innocent because you were under duress?

THE DEFENDANT: I didn't know it was going to happen.

THE DEFEN[D]ANT: No. I mean, you know, he put the gun to my head and said if I didn't do it he'd pump me full of lead. You know, I all started out as a party and ended up like this.

(Id. at 10-12.) The plea offer was left pending. (Id. at 15.)

         On March 11, 2010, the matter was assigned to Judge Whitten for trial. (Exhibit G, R.T. 3/11/10 AM.) Petitioner appeared before Judge Whitten, who offered to discuss a potential settlement by plea, and inquired of counsel:

THE COURT: Okay. Counsel, will you waive any conflict and allow me to go forward and have these kind of discussions with your client, and then also if they aren't successful serve as the trial judge?

MS. CAIN: Yes, Your Honor.

THE COURT: And, for the record, will the State also?

MR. SIMMONS: Yeah, Judge. No objection.

THE COURT: I don't intend to do a normal settlement conference because I am going to be the trial judge, so I don't want to hear from anybody about how strong the evidence is going to be. Do you understand?

THE DEFENDANT: Yes.

(Exhibit H, R.T. 3/11/10 PM at 4.) The court reviewed Petitioner's likely sentencing exposure at trial (37 to 6.15 years) and the state offered a plea with a sentence of 20 to 24 years, flat. Petitioner argued the offer was for too long of a sentence, it was disproportional because nobody got hurt, and he was innocent. Petitioner indicated he would accept a plea of 7 to 10 years, but that offer was not acceptable to the prosecution. The court summarized:

If you really think that a jury will believe the victims and not you, and you really think the jury will convict you, then the decision you are making is going to cost you at least 17 years of your life. So I want you to think carefully about it and not just reject it because it's too much time. Not just reject it because murderers get less, because murderers have nothing to do with your case. Your case is about this decision. And if you have reasonably looked at your case and decide you think you will get convicted, then what you are doing right now is choosing 37 years of prison when you could be choosing 20, and that doesn't make sense to me.

(Id. at 23-24.) Petitioner rejected the offer.

         Petitioner proceeded to trial on March 15, 2010. (Exhibit I, R.T. 3/15/10.) During Voir Dire, Juror No. 40 responded to questioning about impartiality as follows:

Q. …No. 40?

A. I put some of my most important belongings into my ex-boyfriend's truck and he took it to work on a worksite and his truck got stolen.

Q. And has that affected your ability to be fair and impartial in this case?

A. Absolutely.

(R.T. 3/15/10 PM, Doc.13-1 at 83.) Nonetheless, Juror 40 was seated for trial. (Id. at 93, 107.)^[3]

         Petitioner testified in his own behalf, asserting intoxication and duress. (Exhibit K, R.T. 3/22/10 at 55 et seq.) The jury was instructed on the defense of duress. (Exhibit L, R.T. 3/23/10 at 9.) The jury convicted on all remaining charges, and made finding to support the dangerous crimes against children charges. (Id. at 42, et seq.) The state dismissed all other aggravating circumstances. (Id. at 47.)

         Petitioner proceeded to sentencing on June 24, 2010. (Exhibit N, R.T. 6/24/10.) The trial court sentenced Defendant to mitigated terms of 7 years each on the burglary, adult kidnapping and armed robbery counts, all to be served concurrently. However, because the Dangerous Crimes Against Children Statute triggers mandatory enhanced sentences, the court sentenced Defendant to enhanced terms of 10 years for each of the three child kidnapping counts, each to be served consecutively to Defendant's concurrent sentences, and to each other with no credit ...