Moore v. Ryan

          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 ...