United States District Court, D. Arizona
ORDER
David
G. Campbell Senior United States District Judge
On
February 6, 2019, Petitioner Isidrio Pacheco filed a
supplemental notice of motion for issuance of writ due to
non-compliance with this Court's December 22, 2016 order
conditionally granting Petitioner's writ of habeas
corpus. Doc. 36. The State filed a response, which Petitioner
moves to strike as untimely. Docs. 38, 39. Petitioner did not
file a reply. For the reasons that follow, the Court will
deny Petitioner's motions.
I.
Background.
Petitioner
pled guilty to charges of child molestation and sexual
conduct with a minor and was sentenced to 17 years. Doc. 35
at 1. Petitioner filed an of-right post-conviction relief
(“PCR”) petition, and his counsel filed a notice
of no colorable claims. Id. at 1-2. Petitioner then
filed a pro per petition, asserting ineffective
assistance of counsel and sentencing error. Id. His
petition was denied. Id.
In
November 2015, Petitioner filed a petition for writ of habeas
corpus with this Court, asserting four grounds. Doc. 1. The
first three, which the Court denied, alleged ineffective
assistance of counsel. Doc. 19 at 6. The fourth ground
alleged that Petitioner was entitled to a “fundamental
error” review of the record under Anders v.
California, 386 U.S. 738 (1967), because his of-right
PCR proceeding was the equivalent of a direct appeal.
Id.
On
December 22, 2016, this Court conditionally granted
Petitioner's writ of habeas and ordered that Petitioner
be permitted to file a new of-right Rule 32 PCR proceeding,
including the filing of a brief by counsel and independent
review of the record consistent with Anders. Doc. 26
at 18. If the state failed to comply within 90 days,
Petitioner would be released. Id. Petitioner's
case was subsequently terminated.
On
January 3, 2017, Petitioner filed his second notice for PCR
in the superior court and was appointed counsel. Doc. 32 at
7. Counsel filed a new of-right Rule 32 petition on January
29, 2018. Id. The petition alleged a significant
change of law because Arizona's child molestation statute
was found unconstitutional in May v. Ryan, 245
F.Supp.3d 1145, 1158 (D. Ariz. 2017). Id. The
petition also alleged ineffective assistance of counsel
because Petitioner's original trial counsel should have
interviewed Petitioner's alibi witness, moved to suppress
his confession, and presented mitigation evidence.
Id. at 8-12. Further, the petition alleged that the
trial court failed to inform Petitioner of the sentence
enhancement under Arizona's Dangerous Crimes Against
Children Act (“DCACA”), rendering his guilty plea
invalid. Doc. 32 at 12-6. Finally, the petition alleged that
the DCACA sentencing scheme is unconstitutional because it
enhances a sentence based on facts found by a judge instead
of facts found by a jury beyond a reasonable doubt. Doc. 32
at 16.
On June
11, 2018, the superior court denied the Rule 32 petition,
finding that “all matters contained in the Petition for
Post-Conviction Relief are precluded as having been
previously ruled upon or untimely filed[, ] or the Petition
lacks sufficient basis in law and fact to warrant further
proceedings herein and no useful purpose would be served by
further proceedings.” Doc. 32 at 50. Petitioner then
filed his first motion for issuance of a writ due to
non-compliance in this Court, arguing that the superior
court's decision did not satisfy the Court's order
for a new of-right PCR proceeding. Doc. 32. Petitioner argued
that the superior court did not afford him a new Rule 32
proceeding because it found the issues raised to be precluded
or untimely, which meant that it “treated the appeal as
a successive action limiting the scope of [appealable]
issues.” Doc. 32 at 2.
The
state filed a request for clarification in the superior court
(see Doc. 34 at 5-6), and that court issued
supplemental findings of fact and conclusions of law on July
12, 2018. See Doc. 33-1at 2. The order supplemented
the court's June 11, 2018 order “after fully
considering [Petitioner's petition] on its merits.”
Doc. 34 at 18. The supplemental order addressed each of
Petitioner's arguments on the merits and affirmed the
denial of post-conviction relief. After this clarification,
Petitioner filed a reply in support of his motion. His reply
argued that the superior court's supplemental order did
not comply with the Court's conditional grant of habeas
relief because it essentially copied verbatim the state's
response to the PCR court. Doc. 34 at 2.
On
October 9, 2018, this Court denied Petitioner's first
motion for issuance of writ due to non-compliance, finding
that the subsequent of-right PCR proceeding satisfied the
Court's conditional grant of habeas relief because
Petitioner was appointed counsel, counsel filed a merits
brief, and Petitioner therefore was no longer entitled to an
Anders review by the trial court. Doc. 35 at
6. The Court noted that to the extent Petitioner
disagreed with the substantive accuracy of the trial
court's decision, he needed to first exhaust his state
remedies before initiating a federal court review.
Id. at 7. The Arizona Court of Appeals has since
affirmed the trial court's denial of Petitioner's
subsequent PCR petition. See Doc. 36 at 1; State
v. Pacheco, No. 2 CA-CR 2018-0269-PR, 2019 WL 324930
(Ariz.Ct.App. Jan. 23, 2019).
II.
Petitioner's Second Motion for Issuance of a Writ Due to
Non-Compliance.
Petitioner's
current motion asks the Court to determine whether the
superior court “in fact addressed the substantive
nature of [his] claims or merely took action giving an
appearance of a new Rule 32 proceeding.” Doc. 36 at 2.
But the Court already determined that the superior court
appropriately addressed the merits of Petitioner's claims
in the October 9 order. Doc. 35 at 6. Plaintiff's
remaining arguments go to the merits of the claims he brought
in his second PCR proceedings. These claims are not before
this Court.
Following
the issuance of a conditional habeas writ, the Court
maintains jurisdiction only to review the state's
compliance with its conditional order. See Leonardo v.
Crawford, 646 F.3d 1157, 1161 (9th Cir. 2011). Here the
Court's conditional grant of habeas relief required: (1)
a new of-right Rule 32 proceeding, (2) with briefing, and (3)
a review of the record consistent with Anders. Doc.
26 at 18. The Court determined that the superior court
complied with these requirements. Doc. 35 at 6. The state
therefore has satisfied its obligation, and the Court cannot
“address new arguments under the ambit of ensuring
compliance with the earlier order.” See
Leonardo, 646 F.3d at 1161. The language Petitioner
highlights from the Court's October 9 order - that the
Court would address the substantive accuracy of the state
court's supplemental order only after Petitioner has
exhausted his state remedies - refers to a successive or new
habeas petition to challenge the accuracy of the subsequent
PCR ruling, not to continuing review in this case.
Petitioner
also renews his argument that the superior court did not
properly afford him a new of-right proceeding because its
June 11, 2018 order summarily dismissed his issues without
considering their merits, and the superior court's
supplemental order parroted the state's briefing and was
issued only in response to Petitioner's filing of a
non-compliance order in this Court. Doc. 36 at 2. The Court
has already considered and rejected these arguments.
See Doc. 35 at 6-7. Petitioner also argues that the
Arizona Court of Appeals summarily dismissed his claims
without addressing the merits, and he therefore was not
afforded an adequate of-right PCR. See Doc. 36 at 4.
But the Court of Appeals can properly adopt the superior
court's ruling in a summary order if it agrees with the
reasoning and outcome and such orders will “not
complicate further review in state or federal court.”
State v. Whipple, 866 P.2d 1358, 1359-60
(Ariz.Ct.App. ...