United States District Court, D. Arizona
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 ...