United States District Court, D. Arizona
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF
F. Metcalf United States Magistrate Judge
MATTER UNDER CONSIDERATION
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).
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.
RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL
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
(Exhibit S, Mem. Dec. at ¶¶ 2-3.) (Exhibits to the
Answer, Docs. 10-22, are referenced herein as “Exhibit
PROCEEDINGS AT TRIAL
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. (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.)
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:
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
(Id. at 10-12.) The plea offer was left pending.
(Id. at 15.)
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.
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?
(R.T. 3/15/10 PM, Doc.13-1 at 83.) Nonetheless, Juror 40 was
seated for trial. (Id. at 93, 107.)
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.)
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 ...