Montes v. Ryan

          REPORT AND RECOMMENDATION

          HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE NEIL V. WAKE, SENIOR U.S. DISTRICT JUDGE:

         This matter is on referral pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. Pending is the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (“Petition”) filed by Juan Salvador Montes (“Petitioner”). (Doc. 1)^[1] Respondents filed their Answer (Doc. 8) and Petitioner did not file a Reply. For the reasons set forth below, the undersigned Magistrate Judge finds the Petition is procedurally defaulted and finds the Petition fails on the merits in any event. Therefore, undersigned recommends that this Court deny and dismiss the Petition with prejudice and deny a certificate of appealability.

         I. BACKGROUND

         A. Indictment, plea agreement, sentencing

         In an indictment filed in May 2016, in the Maricopa County Superior Court, the county attorney charged Petitioner on seven counts of a 44-count indictment arising out of an investigation involving approximately twenty-five persons suspected of engaging in drug manufacture, sales, and use. (Doc. 8-1 at 3-17, 67) Petitioner was charged in Count 1 of conspiracy to use a building for the sale or manufacture of drugs, among other crimes (a Class 2 felony); in Count 2 of using a building to unlawfully manufacture, distribute, and sell methamphetamine and other dangerous or narcotic drugs (a Class 6 felony); in Count 3 of second degree money laundering (a Class 4 felony); in Count 4 of assisting a street gang (a Class 3 felony); in Count 36 of knowingly possessing methamphetamine for sale (a Class 2 felony); in Count 37 of knowingly possessing a gun during commission of a felony (a Class 4 felony); and in Count 38 of knowingly possessing a gun while being a prohibited possessor (a Class 4 felony). (Id. at 3-18) The county attorney later amended the indictment to allege Petitioner's historical prior felony convictions for prohibited possession of a weapon and for solicitation of dangerous drugs/possession for sale. (Id. at 20-21) In a separate filing, the county attorney also alleged that Petitioner had committed the offenses charged in the indictment while on release from confinement for a prior felony conviction of misconduct involving weapons. (Id. at 22-23)

         In November 2014, a settlement conference was conducted to address a plea offer in Petitioner's case. (Id. at 24-42) The prosecutor advised Petitioner and his attorney that considering his charge for a Class 2 felony, Petitioner's criminal history, and gang affiliation, he faced a sentencing range of between 15.5 and 40 years, with a presumptive sentence of 20.75 years. (Id. at 29-30) The prosecutor described the plea offer as requiring Petitioner to plead guilty to Counts 4, 36, and 37. (Id. at 32) The agreement would result in a sentencing range of 12 to 17.5 years' imprisonment on Count 36 and sentences of supervised probation on Counts 4 and 37. (Id.) After inquiring about potential mitigating factors, the case management judge said that she would be inclined to sentence Petitioner to 12 years' imprisonment, in part because he would be monitored under probation when released from confinement. (Id. at 34) The judge further informed Petitioner he would be eligible for 85% credit and credit for the time he had been in custody prior to being sentenced. (Id.)

         After addressing incriminating evidence against Petitioner, the prosecutor and Petitioner's counsel advised Petitioner that he would face a sentencing range of 15.75 to 35 years if he lost at trial. (Id. at 38-39) On November 26, 2014, a change of plea hearing was conducted at which Petitioner agreed to plead guilty to Counts 4, 36 and 37. (Id. at 51-65) The sentencing judge verified that Petitioner had read each paragraph of his plea agreement, had initialed each paragraph, had reviewed each paragraph with his counsel, and had no questions about the agreement. (Id. at 55) The State agreed to dismiss Counts 1 through 3 and 38 as to Petitioner. (Id. at 61) In establishing a factual basis for the plea, Petitioner's counsel stated that Petitioner “possessed dangerous drugs for sale” between November 7, 2013, and May 7, 2014, and on or about April 3, 2014, and that the drug was methamphetamine. (Id. at 62)

         Petitioner was sentenced on January 9, 2015. (Id. at 73-83) On Count 36, he was sentenced to 12 years' imprisonment with 248 days of presentence credit and on Counts 4 and 37, his imposition of sentence was suspended and he was ordered to be placed on supervised probation for 3 years on each count, to run concurrently upon release from the Department of Corrections. (Id.) Petitioner's remaining charges were dismissed along with the allegation of his prior felony convictions. (Id. at 81)

         B. Post-conviction relief action

         Petitioner filed a notice of post-conviction relief (“PCR”) on February 10, 2015, and the superior court appointed counsel. (Doc. 8-1 at 92-94) Counsel filed a Notice of Completion of PCR in January 2016, asserting he had not identified any colorable claim for relief. (Id. at 97-98) The superior court ordered counsel to remain in an advisory capacity and gave Petitioner until March 14, 2016, to file a pro per petition for PCR. (Id.)

         Petitioner timely filed his pro per PCR petition in which he argued he had discovered evidence on the day before his change of plea hearing indicating that the amount of methamphetamine located on his person was less than the weight identified in A.R.S. § 13-3420^[2] as the threshold for sales because the drug was weighed along with “its original packaging.” (Doc. 8-1 at 103) Petitioner attested he had informed his attorney of this discrepancy. (Id. at 111) He contended that given this evidence, he should have been charged with a Class 4 felony under A.R.S. § 13-3401 rather than a Class 2 felony. (Id. at 103) Petitioner asserted that during grand jury proceedings, the prosecutor questioned a detective on his case whether Petitioner had possessed a weight of methamphetamine “that is over the threshold indicating under the law that it's, in fact possessed for sale?” (Id. at 104, 110) The detective had testified the drug amount was over the threshold. (Id. at 110) Petitioner stated that the drugs and packaging weighed 9300 mg, the packaging alone weighed 3000 mg^[3], and that accordingly he had possessed only 6000 to 7000 mg of methamphetamine which was “well under the threshold for a sales charge[.]” (Id. at 105) He concluded he should have been charged on a lesser charge of possession of methamphetamine for use, rather than for sale. (Id.)

         Petitioner argued his trial counsel's representation was ineffective because counsel did not discuss the drug threshold issue with him, claiming “[i]f these issues [had] been brought to light, I would have never signed a 12 year sentence[, ]” and declared he had never been advised of either A.R.S. § 13-3420 or dangerous drug threshold amounts. (Id.) Petitioner also contended trial counsel was ineffective for failing to move for suppression of drug evidence and instead “induced [him] to plead guilty.” (Id. at 107)

         The superior court denied Petitioner's PCR petition, concluding he had failed to establish relevant newly-discovered evidence or ineffectiveness of trial counsel. (Id. at 112-114) The court stated that the statute to which Petitioner pled guilty, A.R.S. § 13-3407(A) and (B), does not reference any quantity of drugs, and that the threshold weight of drugs is relevant only to charges brought under other sections of the statute. (Id. at 113) The court noted that Petitioner at his sentencing had “agreed to a factual basis that he possessed a dangerous drug, methamphetamine, for sale.” (Id.) Further, the court confessed it was “unclear why Defendant alleges the weight of the methamphetamine is important in this case. [He] was facing significantly more time in prison if convicted at trial regardless of the weight of the drugs.” (Id.)

         In his petition for review of the superior court's denial of his PCR petition, Petitioner requested relief in the Arizona Court of Appeals because his trial counsel did not advise him that the charge of possession of dangerous drugs for sale was inconsistent with the actual weight of the methamphetamine in his possession. (Id. at 116) He asserted he tried to tell the superior court at his settlement conference that he had drug problems and was addicted to methamphetamine, but his counsel had stopped him from bringing that up. (Id. at 117) Petitioner did not assert the claim alleging his trial counsel had been ineffective for failing to move to suppress drug evidence. (Id. at 115-118)

         The Arizona Court of Appeals granted review and denied relief. (Doc. 1 at 20-23) The court of appeals first found Petitioner had not presented evidence he had been “charged with possession of any specific amount of methamphetamine, let alone an amount in excess of the statutory threshold.” (Id. at 22) Additionally, the court of appeals found his learning of information on the weight of the methamphetamine found on his person did not qualify as “newly-discovered” for purposes of Arizona Rule of Criminal Procedure 32.1(e) because he became aware of it prior to his sentencing. (Id.) The court of appeals further found that Petitioner had failed to prove that:

the information “was of such critical significance ... such that the evidence probably would have changed the verdict or sentence.” Ariz. R. Crim. P. 32.1(e)(3). The amount of the drugs does not create any presumption of an intent to sell and is relevant only for sentencing purposes. See A.R.S. § 13-3407(D) (providing a person who possesses dangerous drugs for sale in an amount greater than the statutory threshold is generally “not eligible for suspension of sentence, probation, pardon or release from confinement on any basis”). And, the record reflects [Petitioner] was charged with an unidentified amount of methamphetamine for sale. He pleaded guilty to that charge, and two others, in exchange for the dismissal of an allegation of two historical felony convictions and forty-one other counts, and the State's agreement not to file certain other charges. On this record, we cannot say the superior court abused its discretion in concluding the amount of methamphetamine-even assuming it fell below the statutory threshold- would have affected his decision to plead guilty or resulted in a more lenient sentence.

(Id. at 22-23) Addressing Petitioner's argument that his trial counsel provided ineffective counsel by allegedly preventing him from raising the drug threshold amount with the trial court at a settlement conference, the court of appeals found he failed to raise this claim in the superior court and the claim accordingly would not be considered on appeal. (Id. at 23, citing Ariz. R. Crim. P. 32.9(c)(ii)) The court of appeals also found that Petitioner had failed to reassert in his petition for review his claim that trial counsel had been “ineffective for failing to file a motion to suppress” and found that claim was waived. (Id. at 22 n.3, citing Ariz. R. Crim. P. 32.9(c)(1))

         C. Petitioner's habeas claims

         In his Petition, Montes asserts three claims of ineffective assistance of counsel. (Doc. 1 at 6-8) In Ground 1, he argues his trial counsel provided “erroneous and misinformed advice by telling [him] to continue with the plea bargain” despite Petitioner's misgivings regarding a police report indicating the methamphetamine found on his person had been weighed along with the packaging material in which it was contained, calling into question whether the drug amount met the threshold weight. (Id. at 6, 10-13) Petitioner's Ground 2 alleges his trial counsel was ineffective for neglecting to file a motion to suppress drug weight evidence and improperly inducing him to plead guilty. (Id. at 7, 13-14) In Ground 3, Petitioner contends his counsel was ineffective when he did not inform Petitioner about the Arizona statute addressing the threshold amount for a presumption of intent to sell methamphetamine, and provided him with “false information” just prior to the change of plea hearing that the drug weight had been credible. (Id. at 8, 15-16)

         Respondents argue that all of Petitioner's grounds for relief are unexhausted and procedurally defaulted and also ...