United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge.
Petitioner
Lancer James Moore (Petitioner) presently incarcerated in the
Arizona State Prison-Kingman in Kingman, Arizona, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (Petition). Before the Court are the Petition
(Doc. 1), Respondent's Answer to Petition for Writ of
Habeas Corpus (Doc. 9) and Petitioner's Rebuttal to
Answer to Petition for Writ of Habeas Corpus (Doc. 10). This
matter was referred to Magistrate Judge Ferraro for Report
and Recommendation. (Doc. 11.)
As more
fully set forth below, the Magistrate Judge recommends that
the district court, after its independent review, deny and
dismiss the Petition.
BACKGROUND
State
Trial Court Proceedings
On
August 2, 2013, Petitioner was indicted by a grand jury in
the Arizona Superior Court, Maricopa County and charged with
three counts of sexual conduct with a minor and two counts
sexual abuse. (Doc. 9-1 at 16-18.) On August 26, 2014,
Petitioner entered a plea agreement with the State.
(Id. at 10-12.) Under the terms of the plea
agreement, Petitioner agreed to plead guilty to one count of
sexual conduct with a minor (Count 1 of the indictment) and
two counts of attempted sexual abuse (Counts 2 and 5 of the
indictment). (Id. at 10.) For Count 1, the parties
agreed that Petitioner would be sentenced in a range of a
minimum prison sentence of 13 years flat, a presumptive
sentence of 20 years flat, and a maximum sentence of 27 years
flat. (Id.) For Counts 2 and 5, the parties agreed
that Petitioner's sentence would be suspended and he must
register as a sex offender, and may be placed on probation
for a lifetime term. (Id.) The State agreed to
dismiss the two remaining counts of sexual conduct with a
minor (Counts 3 and 4 of the indictment). (Id. at
11.) On October 17, 2019, the trial court sentenced
Petitioner in accordance with the plea agreement and imposed
a presumptive sentence of 20 years flat for Count 1 and
lifetime probation on Counts 2 and 5. (Id. at 38.)
State
PCR Court Proceedings
On
November 18, 2014, Petitioner filed a notice of
post-conviction relief (“PCR”) pursuant to Rule
32 of the Arizona Rules of Criminal Procedure. (Id.
at 56-57.) After Petitioner's court appointed counsel
found no colorable claim for relief, the court granted
Petitioner an opportunity to file a pro per PCR
petition and ordered that defense counsel remain in an
advisory capacity for Petitioner. (Id. at 58-59.)
With
the assistance of his court appointed counsel, Petitioner
filed his PCR petition primarily attacking his 20-year
flat-time prison sentence on the grounds that his sentencing
under Ariz. Rev. Stat. § 13-705 (statute governing
sentencing for those convicted of violating Arizona's
dangerous crimes against children statute) was improper and
raising a claim of prosecutorial misconduct and ineffective
assistance of counsel. (Id. at 60-78.)
After
considering the PCR petition, response and reply, on June 13,
2016, the trial court determined that Petitioner stated no
colorable claim for relief. (Id. at 89.) The trial
court determined that Petitioner, pursuant to his plea of
guilty, was precluded from seeking relief on his claim of
prosecutorial misconduct. (Id.) Additionally, the
trial court determined that Petitioner's claim regarding
his 20-year flat-time prison sentence was meritless.
(Id. at 90.) Finally, the trial court ruled that
Petitioner's trial counsel correctly interpreted the
sentencing statutes and conveyed those interpretations to the
defendant. (Id.) Thus, the trial court determined
that Petitioner failed to establish his claim of ineffective
assistance of counsel. (Id.)
Proceedings
in the Court of Appeals
On July
20, 2016, Petitioner filed a Petition for Review in the
Arizona Court of Appeals seeking review of the trial
court's dismissal of his PCR petition. (Id. at
78-85.) The Arizona Court of Appeals granted review but
denied relief. (Id. at 86.) The appellate court
determined there was no support for Petitioner's argument
that his sentencing under A.R.S. § 13-705 was improper
(Id. at 88-88.) Thus, the court of appeals rejected
Petitioner's attacks on the sentencing range.
(Id.) Additionally, the court of appeals limited its
review to the arguments raised in Petitioner's Petition
for Review because he failed to comply with Arizona Criminal
Procedure Rule 32.9 when he “incorporated by
reference” his pro se PCR petition. (Id.)
Proceedings
in the Arizona Supreme Court
On
February 14, 2018, Petitioner filed a “Motion to
Withdraw Petition for Review” to the Arizona Supreme
Court. (Id. at 91.) The state supreme court issued
an order ...