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Moreno v. Ryan

United States District Court, D. Arizona

April 19, 2019

Matthew Moreno, Petitioner
v.
Charles L. Ryan, et al., Respondents.

          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 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.

         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

         On May 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 .___ ”)

         B. PROCEEDINGS AT TRIAL

         Petitioner 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 probation.

         Eventually, 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.)

         A 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.[1]

         C. PROCEEDINGS ON DIRECT APPEAL

         Petitioner 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).

         Respondents make no reference to a direct appeal.

         As a 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).

         The undersigned finds that Petitioner did not file a direct appeal.

         D. PROCEEDINGS ON POST-CONVICTION RELIEF

         On 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.)

         Petitioner 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 sentencing claims.

         On 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 DD).

         Petitioner did not seek further review. (Exhibit EE, Email from Arizona Supreme Court Clerk; Petition, Doc. 1 at 5.)

         E. PRESENT FEDERAL HABEAS PROCEEDINGS

         Petition - 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 contends ...

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