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 Arizona State Prison Complex at
Safford, Arizona, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on April 9, 2018 (Doc. 1).
On November 1, 2018, Respondents filed their Limited Response
(Doc. 11). Petitioner has not replied.
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
5, 2010, in exchange for an offer of $200, 19 year old
Petitioner and co-defendant Booz Moreno (his five-years older
uncle and co-worker) assisted co-defendant Adan Gonzalez with
beating up the victim (including with a metal bar and
shotgun). Gonzalez believed the victim was having an affair
with Gonzalez's mother. After the beating, they left the
victim's house, but shortly returned to threaten the
victim with deportation if he contacted law enforcement.
Gonzalez then cut the victim's throat and the other two
perpetrators stole various property. Concerned about
evidence, the three left the house, purchased gasoline and,
on returning, poured gasoline on the victim's body and
throughout the house, and set them on fire. (Exhibit E,
Presentence Investig. at 1-2; Exhibit FF, R.T. 5/29/12 at
12-14 (factual basis for plea).) (Exhibits to the Answer,
Doc. 11, are referenced herein as “Exhibit .___
PROCEEDINGS AT TRIAL
and the two co-defendants were charged in an Indictment
issued on May 13, 2010 (Exhibit A). They were all charged
with first degree murder, burglary, kidnapping, arson, and
aggravated assault. (Booz Moreno was also charged with two
counts of weapons misconduct.) The prosecution filed
Allegations of Aggravating Circumstances (Exhibit B) against
Petitioner, alleging serious physical injury, use of deadly
weapons or dangerous instruments, property damage,
accomplice, heinous cruel or depraved manner, harm to the
victims, severe or extreme pain, brutal violent or vicious
manner, leaving the scene, covering up, failure to aid the
victim, offense while on probation, and violation of
Petitioner entered into a written Plea Agreement (Exhibit C),
agreeing to plead guilty to an amended charge of second
degree murder, and arson of an occupied structure. The Plea
Agreement stipulated to a flat sentence of 1 to 22 years on
the murder charge, and a consecutive term of 12.5 years on
the arson. The other charges were to be dismissed, but
restitution up to $1, 000, 000 was to be paid on all charges.
On May 29, 2012, Petitioner entered his guilty plea. (Exhibit
D, M.E. 5/29/12.)
Presentence Investigation Report was filed (Exhibit E), and
on August 7, 2012, Petitioner appeared for sentencing and was
sentenced to 22 years flat on the murder, and a consecutive
12.5 years on the arson, the maximum sentence permitted under
the plea agreement.
PROCEEDINGS ON DIRECT APPEAL
alleges in the Petition that he did file a direct appeal with
the Arizona Court of Appeals (Petition, Doc. 1 at 2), but the
filing date (May 29, 2015) correlates with the signature date
on his Petition for Review with the Arizona Court of Appeals
in his PCR proceeding (Exhibit BB), and case number and case
number (CR2010-123998-001 DT) is the trial court case number
(see Indictment, Exhibit A).
make no reference to a direct appeal.
pleading defendant, Petitioner had no right to file a direct
appeal. See Ariz.R.Crim.P. 17.1(e); and
Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d
614, 616 (1995).
undersigned finds that Petitioner did not file a direct
PROCEEDINGS ON POST-CONVICTION RELIEF
November 1, 2012, Petitioner filed a timely, of-right notice
of post-conviction relief (Exhibit G). Petitioner was
appointed counsel (Exhibit H, M.O. 11/13/12). Counsel
eventually filed a Notice of Completion of Review (Exhibit
Q), evidencing an inability to find an issue for review.
Petitioner was granted leave to file a pro per PCR petition,
and counsel was directed to remain in an advisory capacity.
(Exhibit R, M.O. 4/23/14.)
eventually filed his PCR Petition (Exhibit X), arguing that
his sentences were illegal because: (1) they were entered in
violation of Blakely v. Washington, 542 U.S. 296
(2004) because a jury did not find the aggravating
circumstances; (2) no explanation was given for making the
arson sentence consecutive; (3) there was no mitigation
hearing; (4) Petitioner was a first time offender; and (5) he
was “merely present.” He also argued trial and
PCR counsel were ineffective for failing to raise the
April 14, 2015, the PCR court denied the petition. (Exhibit
AA, M.O. 4/14/15.) Petitioner filed a Petition for Review
(Exhibit BB) largely raising the same issues, but asserting
various additional constitutional bases for relief. The
Arizona Court of Appeals granted review, but denied relief,
in a Memorandum Decision filed February 16, 2017 (Exhibit
did not seek further review. (Exhibit EE, Email from Arizona
Supreme Court Clerk; Petition, Doc. 1 at 5.)
PRESENT FEDERAL HABEAS PROCEEDINGS
- Petitioner commenced the current case by filing his
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 on April 9, 2018 (Doc. 1). Petitioner's
Petition asserts the following three grounds for relief:
In Ground One, Petitioner alleges his trial counsel
was ineffective for failing to request a mitigation
specialist during sentencing proceedings. In Ground Two,
Petitioner claims his Rule 32 counsel was
ineffective for failing to contact or communicate
with Petitioner before notifying the trial court that he was
unable to find a colorable claim. In Ground Three, Petitioner