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
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.
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 A. FACTUAL
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
PROCEEDINGS AT TRIAL
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.
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.)
PROCEEDINGS ON DIRECT APPEAL
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.)
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
did not seek certiorari review. (Petition, Doc. 1 at 3.)
PROCEEDINGS ON POST-CONVICTION RELIEF
days later, on December 19, 2016, Petitioner filed a Notice
of Post-Conviction Relief (Exhibit I).
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.)
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
PRESENT FEDERAL HABEAS PROCEEDINGS
- 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,
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
(Petition, Doc. 1 a 11.)
- 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
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.
APPLICATION OF LAW TO FACTS
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.
Commencement of Limitations Period