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Trevino v. Ryan

United States District Court, D. Arizona

September 25, 2019

David Trevino, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:

         Pending before the Court is David Trevino's (“Petitioner”) Amended “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Amended Petition”) (Doc. 10). Respondents have filed a Limited Answer (Doc. 14), to which Petitioner has replied (Doc. 16). For the reasons explained herein, it is recommended that the Amended Petition (Doc. 10) be dismissed with prejudice.

         I. BACKGROUND

         On October 28, 2014, a jury sitting in the Superior Court of Arizona in and for Maricopa County found Petitioner guilty of kidnapping and sexual conduct with a minor. (Doc. 14-1 at 27-29). The trial court sentenced Petitioner to life without the possibility of parole for thirty-five years on the sexual conduct with a minor conviction. (Id. at 54). The trial court sentenced Petitioner to a fourteen-year prison term on the kidnapping conviction, which runs consecutively to the life sentence. (Id.).

         On August 4, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 14-2 at 65-77). On September 23, 2016, Petitioner filed a notice of post-conviction relief (“PCR”). (Id. at 79-82). Petitioner's PCR counsel could not find a colorable claim for relief. (Id. at 117-18). Petitioner filed a pro se PCR Petition. (Id. at 123-29). On August 23, 2017, the trial court denied PCR relief. (Id. at 200-02). On April 17, 2018, the Arizona Court of Appeals granted Petitioner's request for review of the trial court's decision, but denied relief. (Id. at 221-22).

         On October 18, 2018, Petitioner timely initiated this federal habeas proceeding. (Doc. 1). On December 13, 2018, Petitioner filed an Amended Petition, which the Court required Respondents to answer. (Docs. 10, 11). As detailed in the Court's January 2, 2019 Screening Order, the Amended Petition presents the following four grounds for habeas relief:

In Ground One, Petitioner contends that his Sixth Amendment rights and his rights under the Arizona Constitution were violated because his attorney failed to defend him effectively. He claims that “the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law” and that he should have been sentenced as a first-time offender pursuant to Arizona Revised Statutes section 13-702(D).
In Ground Two, Petitioner alleges that his Sixth Amendment rights and his rights under the Arizona Constitution were violated because his counsel did not defend him competently. He asserts that because Arizona Revised Statutes section 13-702(D) does not authorize a sentence of life imprisonment, his sentence was “excessive.”
In Ground Three, Petitioner claims he was denied his Fifth Amendment due process rights because he received consecutive, rather than concurrent, sentences. He also contends he received ineffective assistance of counsel because his attorney failed to address the “improper sentence.”
In Ground Four, Petitioner asserts that his Fourteenth Amendment rights were violated “by way of [i]nternal negligence.” He asserts that the sentencing court departed from Arizona Revised Statutes section 13-702(D) and the “mandated expectation” under the Arizona Constitution in sentencing Petitioner.

(Doc. 11 at 2). The undersigned finds that all of Petitioner's habeas claims are procedurally defaulted without excuse.

         II. DISCUSSION

         A. Legal Standards Regarding Procedurally ...


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