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Arido-Sorro v. Ryan

United States District Court, D. Arizona

October 31, 2019

Marvin Arido-Sorro, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable Jacqueline M. Rateau United States Magistrate Judge.

         Pending before the Court is Marvin Arido-Sorro's Amended Petition for Writ of Habeas Corpus (Doc. 10) filed pursuant to 28 U.S.C. § 2254. In accordance with the Rules of Practice of the United States District Court for the District of Arizona and 28 U.S.C. § 636(b)(1), this matter was referred to the Magistrate Judge for report and recommendation. Petitioner commenced this action by filing his petition on July 14, 2016, raising three grounds for relief. Respondents filed a response (Doc. 23), to which Arido-Sorro replied (Doc. 37). As explained below, the Magistrate Judge recommends that the District Court, after an independent review of the record, dismiss the Petition with prejudice.

         I. Factual and Procedural Background

         In its Memorandum Decision affirming Arido-Sorro's convictions and sentences, the Arizona Court of Appeals summarized the factual and procedural background as follows:[1]

In June 2015, Arido-Sorro and M.M. were at the home they shared. Arido-Sorro awoke M.M. and physically assaulted her by grabbing her by the hair and neck, punching her, dragging her down a flight of stairs, and hitting her with a frying pan and a metal food strainer. M.M. escaped through the back door, but Arido-Sorro caught her and continued to assault her. M.M.'s injuries included an eye-socket (orbital-bone) fracture and two facial lacerations.
Two neighbors, D. and M., awoke to hear M.M. screaming, and observed Arido-Sorro stomping on her head. D. intervened, stopping the assault, and M. brought M.M. inside the neighbors' home and called 9-1-1. . . .
[O]fficers arrived on scene, and briefly spoke with M.M. at the neighbor's home. During that conversation, she was on the floor, bleeding from her head and mouth, and her voice “was very low and in and out.” Officers proceeded to the adjacent residence M.M. shared with Arido-Sorro. Through the front window, and before entering the home, they observed clear indications of a violent incident, including overturned furniture, blood on the floor and walls, and that the rear sliding glass door “was wide open.”

Answer to Petition for Writ of Habeas Corpus (“Answer”), Ex. A (Arizona Court of Appeals' Memorandum Decision), pp. 2-3.[2] Based on that information, the responding officers conducted a protective sweep of the residence. Ex. A.

         Arido-Sorro was charged with one count of aggravated assault by strangulation, two counts of aggravated assault with a dangerous instrument, and one count of aggravated assault by causing serious physical injury, which was later amended to aggravated assault causing substantial but temporary disfigurement. The jury acquitted him on the strangulation charge but found him guilty of the lesser-included offense of simple assault and found him guilty on the other three charges. The trial court sentenced him to concurrent, presumptive prison sentences, the longest of which is 7.5 years. Ex. A, p. 3.

         On October 19, 2015, trial defense counsel filed a timely notice of appeal. Ex. H. A few days later, on October 24, Arido-Sorro prematurely filed a pro se notice of post-conviction relief (“PCR”). Ex. I. Three days later, on October 27, the trial court appointed Emily Danies to represent Arido-Sorro in the PCR action. Exs. J-L. Danies moved to stay the premature PCR action pending resolution of Arido-Sorro's direct appeal. Ex. M. The trial court granted the stay motion and, based on the available record, the stay remains in effect. Exs. N; O (Superior Court Docket), pp. 2-3.

         Arido-Sorro, through appointed counsel, raised on direct appeal thee federal constitutional claims and challenged one of his sentences under state law.[3] In his federal claims, he contended that the trial court had committed fundamental and prejudicial error by allowing the introduction of (1) evidence collected during what he alleged to be an unlawful warrantless search (the protective sweep) of his and M.M.'s shared residence; (2) testimony that he had objected to the search after the fact; and (3) statements he made after one of the investigating officers allegedly “goaded him onto custodial interrogation” after he had invoked his Miranda rights. Ex. P, pp. 9-22.

         In its Memorandum Decision dated October 13, 2017, the court of appeals found that Arido-Sorro had not raised his federal claims before the trial court and therefore reviewed them only for fundamental, prejudicial error and rejected each claim. Ex. A, pp. 3-8. The court also noted that, even if errored had occurred, Arido-Sorro suffered no prejudice:

Here, the evidence of Arido-Sorro's guilt was overwhelming and included not only M.M.'s testimony and photographs of her injuries, but also the testimony of two neighbors who observed him standing over M.M. and stomping on her head. Thus, even if Arido-Sorro were able to establish error with respect to the admission of evidence that he had objected to the search, it would not have significantly affected the verdict in light of the weight of the remaining evidence.

         Ex. A, p. 8, n. 6. Thus, the court of appeals modified one sentence as discussed above, but otherwise affirmed Arido-Sorro's convictions and sentences. Ex. A, p. 9.

         Arido-Sorro filed a pro se petition for review in the Arizona Supreme Court. Ex. R. On April 12, 2018, that court denied the petition without comment. Ex. S.

         On April 24, 2018, Arido-Sorro filed a pro se Petition for Writ of Habeas Corpus in this Court. (Doc. 1.) On May 14, 2018, the petition was dismissed because Arido-Sorro had not used the required court-approved form and he was given 30 days to file an amended petition. (Doc. 3.) The filing deadline was then extended to September 27, 2018. (Doc. 6.)

         Meanwhile, the mandate on Arido-Sorro's direct appeal issued on July 2, 2018. Ex. T. On July 6, 2018, appellate defense counsel sent a letter to Arido-Sorro reminding him that the PCR action had previously been stayed and that Emily Danies had been appointed to represent him in PCR proceedings. Ex. U. Then, in an August 6, 2018 letter to Arido-Sorro, PCR counsel Danies informed him that:

The mandate has been issued in the trial case. Before I lift the stay of the Rule 32 I wanted to make sure I understood your last phone call to me. You said you wanted to prepare the Rule 32 yourself. I could be an advisory counsel if you want, but you need to let me know IN WRITING what you want to do for this Rule 32. After I receive your letter with your decision, we can talk on the phone.

         Ex. V. There is no indication from Arido-Sorro or the record that the stay was ever lifted or that he proceeded with his PCR petition.

         On September 17, 2018, Arido-Sorro filed the now-pending Amended Petition (Doc. 10) and Brief in Support of Petition for Writ of Habeas Corpus (Doc. 9) alleging that his federal constitutional rights were violated when the state court admitted evidence collected during a warrantless search of his home (Ground One); admitted into evidence post-Miranda statements that officers “goaded” and “coerced” him to provide (Ground Two); and admitted into evidence that he objected to the search of his home (Ground Three). In Ground Four, Arido-Sorro alleges several claims of ineffective assistance of counsel (“IAC”). He alleges that his trial counsel (1) should have sought a mistrial because a juror was a friend of the victim; (2) failed to establish that Arido-Sorro did not know the victim's HIV status; and (3) failed to challenge the state's evidence of the victim's disfigurement. Arido-Sorro also argues that his Rule 32 counsel was ineffective for failing to raise these claims in his PCR proceedings. (Doc. 9.) Since the filing of his Amended Petition, Arido-Sorro has raised by motion claims that his trial counsel was guilty of “misconduct” and has requested discovery on that issue. (Docs. 32, 33.)[4]

         II. Exhaustion and Procedural Default

         A. Legal Standards

         A state prisoner must exhaust the available state remedies before a federal court may consider the merits of his habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir.1999). “[A] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted).

         Exhaustion requires that a habeas petitioner present the substance of his claims to the state courts in order to give them a “fair opportunity to act” upon these claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32, ” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994), and then present his claims to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).

         Additionally, a state prisoner must not only present the claims to the proper court, but must also present them fairly. A claim has been “fairly presented” if the petitioner has described the operative facts and federal legal theories on which the claim is based. Picard v. Connor, 404 U.S. 270, 277-78 (1971); Rice v. Wood, 44 F.3d 1396, 1403 (9th Cir. 1995). “Our rule is that a state prisoner has not ‘fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001). A petitioner must alert the state court to the specific federal constitutional guaranty upon which his claims are based, Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001), however, ...


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