Valdez v. Ryan

          REPORT AND RECOMMENDATION

          Honorable Deborah M, Fine United States Magistrate Judge

         TO THE HONORABLE G. MURRAY SNOW, CHIEF U.S. DISTRICT JUDGE:

         This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. David Anthony Valdez (“Petitioner”) filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”) on November 22, 2018^[1] (Doc. 1 at 11)^[2]. Respondents filed their Limited Response on February 28, 2019. (Doc. 9) Petitioner did not file a Reply. As is explained below, the undersigned Magistrate Judge recommends that the Petition be dismissed with prejudice because the Petition was not timely filed and is otherwise procedurally defaulted.

         I. BACKGROUND

         A. Petitioner's indictment, plea agreement, and sentence

         A Maricopa County Superior Court grand jury charged Petitioner under eleven counts in an indictment dated June 1, 2015. Count 1 alleged misconduct involving weapons, a Class 4 felony; Counts 2, 4, 5 and 6 alleged aggravated assault, Class 2 and 3 felonies; Count 3 alleged assault, a Class 1 misdemeanor; Counts 7, 8 and 9 alleged attempts to commit kidnapping, Class 3 felonies; and Counts 10 and 11 alleged disorderly conduct, Class 6 felonies. (Doc. 9-1 at 3-7)

         On October 19, 2015, the superior court conducted a settlement conference (Doc. 9-1 at 98), followed by a change of plea hearing on November 25, 2015 (Id. at 101-115). Petitioner entered a plea agreement under which he pleaded guilty to three charges: amended Count 2, charging aggravated assault, a Class 3 non-dangerous felony and domestic violence offense; amended Count 4, aggravated assault; and Count 10, disorderly conduct with a weapon, a Class 6 designated felony. (Id. at 10, 104, 113) The agreement stipulated that Petitioner would be sentenced to 8.75 years imprisonment on Count 4 and to 3 years imprisonment on Count 10, to run consecutively. (Id. at 107) The agreement further stipulated that on Count 2, Petitioner would be sentenced to supervised probation with domestic violence terms following Petitioner's service of his consecutive imprisonment sentences on Counts 4 and 10. (Id.)

         Petitioner was sentenced on March 22, 2016, consistent with the stipulated sentences within the plea agreement. (Id. at 118-133) The court dismissed the remaining counts charged in the indictment. (Id. at 132)

         B. Petitioner's Rule 32 post-conviction relief action

         Petitioner timely filed a Notice of Post-Conviction Relief (“PCR”) in May 2016. (Doc. 9-1 at 36-38) He indicated he was raising a claim of ineffective assistance of counsel. (Id. at 37) Petitioner was appointed counsel. (Id. at 40-41) Appointed counsel filed a Notice of Completion of Post-Conviction Review by Counsel and advised the superior court that she had been unable to identify any claims for relief. (Id. at 43-44) Counsel also moved for a 45-day extension to permit Petitioner to file a pro per petition. (Id. at 43) The superior court gave Petitioner until December 30, 2016 to file a pro per petition. (Id. at 47-48) On February 6, 2017, the superior court filed an order dismissing Petitioner's PCR proceeding for his failure to timely file a pro per petition or request an extension from the court. (Id. at 50) Petitioner did not appeal this order. (Id. at 56)

         More than one year later, in May 2018, Petitioner filed a subsequent Notice of Request for Post-Conviction Relief, again indicating he was raising a claim of ineffective assistance of counsel and explaining that the reason for his failure to file a timely PCR petition was that he had been “informed that [he] did not have a colorful claim to proceed.” (Id. at 54) He stated that “[a]fter some legal investigation I find this is not . . . true.” (Id.) Petitioner indicated his untimely notice was not his fault and excusable pursuant to Arizona Rule of Criminal Procedure 32.1(f). (Id. at 53-54) He informed the superior court he did not seek to have his conviction overturned but was requesting a reduction in his sentence and probation period. (Id.)

         The superior court dismissed Petitioner's Notice of Request for Post-Conviction Relief pursuant to Arizona Rule of Criminal Procedure 32.2(b). This rule identifies limited exceptions to the preclusive effect of Rule 32.2(a), as pertinent here, requiring preclusion of grounds that were waived in a previous collateral proceeding. Ariz. R. Crim. P. 32.2(a)(3). These exceptions are set forth in Ariz. R. Crim. P. 32.1(d) through (h), and include under subsection (d), circumstances where: a defendant is retained in custody after his sentence has expired; under subsection (e), newly-discovered material facts “probably exist and those facts probably would have changed the verdict or sentence”; under subsection (f), the defendant was not at fault for his failure to file a timely notice of PCR of right; under subsection (g), there had been a “significant change in the law that, if applied to the defendant's case, would probably overturn the defendant's conviction or sentence”; or under subsection (h), a defendant can demonstrate by clear and convincing evidence that “the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt.” The superior court first noted that under Arizona law, a defendant is permitted to file a second notice of post-conviction relief aimed at challenging the effectiveness of PCR counsel, but that the notice was required to be filed within 30 days of the final order. (Id. at 57, citing Ariz. R. Crim. P. 32.4(a)(2)(C)). The court determined that the deadline to file such a second notice had been March 8, 2017, and found that Petitioner's notice was untimely by over one year. (Id.) The court rejected Petitioner's argument that the untimeliness was without fault on his part and declined to grant relief under Arizona Rule of Criminal Procedure 32.1(f) because Petitioner had not adequately explained why it took him more than a year to file the PCR proceeding. (Id.) As to Petitioner's statement that he was informed that he did not have a colorful claim to proceed and that legal investigation revealed this to be untrue, the court stated that Petitioner did “not identify who told him” that “he had no colorable Rule 32 claims” and that the Notice of Completion by PCR counsel was “insufficient to support a Rule 32.1(f) claim.” (Id.)

         The superior court proceeded to note that Petitioner also had requested relief pursuant to Arizona Rule of Criminal Procedure 32.1(a), permitting relief where a defendant's “conviction was obtained or the sentence was imposed in violation of the United States or Arizona constitutions.” (Id., citing Ariz. R. Crim. P. 32.1(a)). The court found that Petitioner did not identify which counsel, plea or PCR counsel, or both, he was referring to. (Id.) The court determined that Petitioner could not raise an untimely ineffective assistance of counsel claim because such a claim was not exempted from preclusion under Rule 32.1(d)-(h). (Id.) Further, the court concluded that any claims against plea counsel were precluded because Petitioner could have raised such a claim in his initial PCR action but did not. (Id.)

         Petitioner filed a petition for review of the superior court's dismissal of his second notice of PCR with the Arizona Court of Appeals. (Id. at 60-63) The court of appeals granted review but denied relief. (Id. at 65-66) The court of appeals held that Petitioner had failed to establish the superior court had abused its discretion in dismissing the second PCR action. (Id. at 66)

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