United States District Court, D. Arizona
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)
C.
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