Suarez v. Ryan

          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 Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 22, 2018 (Doc. 1). On November 27, 2018, Respondents filed their Answer (Doc. 9), supplemented by a non-electronic exhibit (DVD) (Doc. 12). Petitioner filed a Reply on January 10, 2019 (Doc. 14).

         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

         Acting on a search warrant, police discovered various drugs and paraphernalia and a semiautomatic pistol in an apartment shared by Petitioner. While there, Petitioner's cell phone rang, the police officers answered, and the caller eventually asserted he was calling to purchase drugs from Petitioner. Petitioner was arrested on suspicion of selling drugs. At the police station, Petitioner and the officer discussed whether Petitioner wanted to answer questions without an attorney, and Petitioner eventually agreed to answer “some.” During questioning, Petitioner made various admissions (holding methamphetamine for a friend, possessing a pistol and a small amount of heroin for personal use). He also asserted that federal authorities had been looking form him as an international drug importer. (Pet. Exhibit, Mem. Dec. at 1-4, Doc. 1-2 at 5-7.) (Petitioner's unlabeled exhibits to the Petition, Doc. 1, are referenced herein as “Pet. Exhibit, ” with the docket number and docket pages identified. Exhibits to the Answer, Doc. 9, are referenced herein as “Exhibit___.”)

         B. PROCEEDINGS AT TRIAL

         On August 26, 2014, Petitioner was indicted on counts of possession of methamphetamine for sale, possession of heroin for sale, possession of drug paraphernalia, weapons misconduct during a felony, weapons misconduct as a prohibited possessor, and transportation of methamphetamine for sale. (Exhibit B, Indictment.) Petitioner moved unsuccessfully to suppress evidence from the search and his statements after arrest. (Pet. Exhibit, Mem. Dec. at ¶ 9-10, Doc. 1-2 at 7.) He proceeded to trial and the “jury convicted Suarez of possession of dangerous drugs and narcotics for sale, possession of drug paraphernalia, and misconduct involving weapons [as a prohibited possessor].” (Id. at ¶ 13, Doc. 1-2 at 8.) Petitioner was acquitted on the charges of weapons misconduct during a felony and transportation.

         On May 21, 2015, Petitioner was sentenced to concurrent prison terms of 12 years on each of the possession for sale charges and 2 years on the paraphernalia charge, and a consecutive term of 4 years on the weapons charge, for an effective sentence of 16 years. (Exhibit D, Sentence.)

         C. PROCEEDINGS ON DIRECT APPEAL

         Petitioner filed a direct appeal, challenging the admission of the evidence seized from the apartment, the admission of his statements, the admission of hearsay from the caller, and the admission of Petitioner's statements about federal agencies' suspicions of him being an international drug dealer. (Pet. Exhibit, Opening Brief, Doc. 1 at 12 to Doc. 1-1 at 41.) On May 31, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Pet. Exhibit, Mem. Dec. Doc. 1-2 at 4-12.)

         Petitioner sought review from the Arizona Supreme Court. (Pet. Exhibit, PFR, Doc. 1-3 at 1, et seq.) On November 15, 2016, the Arizona Supreme Court summarily denied review. (Pet. Exhibit, Order 11/15/16, Doc. 1-3 at 23.) The Arizona Court of Appeals issued its mandate on December 16, 2016. (Exhibit H.)

         Petitioner did not seek certiorari review. (Petition, Doc. 1 at 3.)

         D. PROCEEDINGS ON POST-CONVICTION RELIEF

         Three days later, on December 19, 2016, Petitioner filed a Notice of Post-Conviction Relief (Exhibit I).

         Petitioner was appointed counsel, who eventually filed a notice of completion evidencing an inability to find an issue for review. (See Pet. Exhibit, Order 6/7/17, Doc. 1-3 at 28, et seq.) On May 15, 2017, Petitioner filed a pro per PCR Petition. (Pet. Exhibit, PCR Pet., Doc. 103 at 24, et seq.) The PCR court summarily denied that petition on June 7, 2017. (Id.)

         Petitioner then filed a Petition for Review. (Pet. Exhibit, PFR, Doc. 1-3 at 33 et seq.) It was dismissed as untimely. (Pet. Exhibit, Order 7/27/17, Doc. 1-3 at 36 et seq.) Petitioner then filed a motion for reconsideration (Pet. Exhibit, Motion 8/11/17, Doc. 1-3 at 38), which was denied (id. at Order 8/23/17, Doc. 1-3 at 39-40). Petitioner then filed a motion for delayed review with the PCR court. (Pet. Exhibit, Motion 9/12/17, Doc. 1-3 at 41.) The motion was denied. (Pet. Exhibit, Order 10/2/17, Doc. 1-3 at 42.)

         E. PRESENT FEDERAL HABEAS PROCEEDINGS

         Petition - Some 14 months after the PCR court's dismissal of his PCR petition, Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 22, 2018 (Doc. 1). Petitioner's Petition asserts the following four grounds for relief:

In Ground One, Petitioner alleges that his Fourth and Fourteenth Amendment rights were violated because “[t]here was insufficient probable cause set forth in the residential search warrant affidavit.” In Ground Two, Petitioner alleges that his Miranda rights were violated at the police station when the officers failed to stop questioning Petitioner and used “psychological tactics to exploit [his] vulnerabilities.” In Ground Three, Petitioner alleges that “prior felony possession is now a misdemeanor . . . so [he] would like to get resentenced.” In Ground Four, he asserts that he received ineffective assistance of counsel.

(Order 10/18/18, Doc. 5 at 1-2.) With regard to timeliness, Petitioner argues:

I got denied for a motion for reconsideration on October 2017. I don't know if I go off of that date or the date I was denied to file my petition for PCR which would be on August 2017.

(Petition, Doc. 1 a 11.)

         Response - On November 27, 2018, Respondents filed their Answer (Doc. 9). Respondents argue that the Petition is untimely, Grounds 1 and 3 are not cognizable on habeas review, Grounds 3 and 4 are procedurally defaulted, and Ground 2 is without merit. In support of the latter argument, Respondents filed a non-electronic exhibit, a DVD of the police station interview (Doc. 12).

         Reply- On January 10, 2019 Petitioner filed a Reply (Doc. 14). Petitioner argues: (1) on reviewing the DVD his rights were violated in additional ways and the merits of Ground 2 (id. at 1-3); and (2) the merits of Ground 1 and 4 (id. at 3-4). Petitioner does not address the statute of limitations or procedural default defenses, or the merits of Ground 3.

         III. APPLICATION OF LAW TO FACTS

         A. TIMELINESS

         1. One Year Limitations Period

          Respondents assert that Petitioner's Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one year limitations period are barred and must be dismissed. Id.

         2. Commencement of Limitations Period

         a. ...