United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
HONORABLE DIANE J. HUMETEWA:
Guadalupe Garcia Cortez, proceeding pro se, filed a
petition seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Respondents docketed a Limited Answer to
Petition for Writ of Habeas Corpus (ECF No. 10), and Cortez
filed a reply. (ECF No. 11). Cortez contends that he is
entitled to habeas relief because he was denied the effective
assistance of counsel when entering a guilty plea to two
counts of attempted molestation of a child. Respondents
assert the petition is not timely and that Cortez
procedurally defaulted his claims in the state courts.
Maricopa County grand jury returned an indictment on April
14, 2016, which charged Cortez with child molestation, a
class 2 felony, occurring on or between August 1, 2015, and
March 5, 2016. (ECF No. 10-1 at 3). The indictment was later
amended to allege two counts of molestation of a minor, each
alleged as a class 3 felony. (ECF No. 10-1 at 20). The
following facts are taken from the presentence report:
On March 5, 2016, the female seven-year-old victim disclosed
to her mother that her foster father, [Cortez], had touched
her inappropriately on her buttocks. Police w[ere] called by
a parent aide with the Department of Child Services. Officers
learned the minor victim had been placed in the care of
[Cortez] and his wife as foster parents. During a visit with
her mother, the victim disclosed the defendant had touched
her buttocks. During a forensic interview, the victim
described an incident when she was on the couch at
[Cortez]'s home[, ] and [Cortez] touched her vaginal area
with his hand under her clothes. She indicated [Cortez] told
her not to tell anyone. She also indicated that she told
[Cortez]'s wife what had occurred[, ] and his wife said
[Cortez] did not touch her.
[Cortez] was interviewed by police on March 15, 2016, and
denied touching the victim. He participated in a polygraph on
April 4, 2016[, ] and showed signs of deception. After the
polygraph, [Cortez] indicated he did touch the victim's
vaginal area over her clothes. He further explained he may
have touched her under her clothes but did not remember. He
told officers he did not have a sexual intent when he touched
the victim and only wanted to scare her so that she would
stop bothering him. He indicated he first denied touching the
victim because of her age and that he knew it was a criminal
offense. [He] was then taken into custody without further
(ECF No. 10-1 at 21).
parties entered into a plea agreement on December 9, 2016.
(ECF No. 10-1 at 7-8). Cortez agreed to plead guilty to two
class 3 felonies of attempted molestation of a child. (ECF
No. 20-1 at 6, 8). The written plea agreement noted the
presumptive sentence of 10 years, the minimum sentence of 5
years, and the maximum sentence of 15 years' imprisonment
for these crimes. (ECF No. 10-1 at 6). The parties stipulated
in the plea agreement that Cortez would serve “a
term” of imprisonment and a term of lifetime supervised
initialed the following paragraph in the written plea
I have read and understand the provisions . . . of this
agreement. I have discussed the case and my constitutional
rights with my lawyer. My lawyer has explained the nature of
the charge(s) and the elements of the crime(s) to which I am
pleading. I understand that by pleading GUILTY I will be
waiving and giving up my right to a determination of probable
cause, to a trial by jury to determine guilt and to determine
any fact used to impose a sentence . . . to confront,
cross-examine, compel the attendance of witnesses, to present
evidence in my behalf, my right to remain silent, my
privilege against self-incrimination, presumption of
innocence and right to appeal . . .
(ECF No. 10-1 at 8). The plea agreement also stated:
I have personally and voluntarily placed my initials beside
each of the above paragraphs and signed the signature line
below to indicate that I read, or had read to me, understood
and approved all of the previous paragraphs in this
agreement, both individually and as a total binding
agreement. My plea is voluntary and not the result of force,
or threat, or promises other than those contained in the plea
(Id.). Cortez and his counsel signed the plea
agreement, and counsel avowed that he had “discussed
this case with [Cortez] in detail and advised [him] of his
… constitutional rights and all possible
defenses.” (Id.) Counsel “believe[d]
that [Cortez]'s plea [was] knowing, intelligent, and
voluntary and that the plea and disposition [were] consistent
with law.” (Id.).
on January 20, 2017, Cortez was sentenced to a term of seven
years' imprisonment followed by a term of lifetime
probation. (ECF No. 10-1 at 10-14, 17-19). Cortez signed a
Notice of Rights of Review After Conviction and Procedure.
(ECF No. 10-1 at 28). The notice advised that because he pled
guilty, he lacked the right to appeal and could seek relief
“only by petition for post-conviction relief.”
(Id.). The notice warned Cortez that to preserve his
post-conviction rights he had to file any “Notice of
Post Conviction Relief . . . within 90 days of the entry of
judgment and sentence.” (Id.).
filed a Notice of Post Conviction Relief on May 17, 2018,
more than fifteen months after sentencing. (ECF No. 10-1 at
30-32). Cortez alleged a claim of ineffective assistance of
counsel, stated he was not seeking the appointment of counsel
in his Rule 32 proceeding, and acknowledged the notice was
untimely. (ECF No. 10-1 at 31-32). Cortez further indicated
he was not challenging his conviction, but he was seeking a
reduction in both his sentence and in his sex offender level.
(ECF No. 10-1 at 32) (“[Cortez] was determined to be a
level one sex offender as a result of the A.S.O.S. assessment
yet [his] defense counsel allowed [him] to sign for
level[-three] plus intensive [probation]. Without overturning
conviction, I am seeking a sentence reduction and level[-one]
state trial court dismissed Cortez's Rule 32 action on
June 6, 2018. (ECF No. 10-1 at 34). The trial court
Under [Arizona Rule of Criminal Procedure] 32.4(a)(2)(C) . .
. the Notice of Request for Post-Conviction Relief must be
filed within 90 days of the entry of judgment and sentencing.
This date is clearly stated in the “Notice of Rights of
Review After Conviction and Procedure” form that
[Cortez] received at sentencing. Because this Court sentenced
[him] on January 20, 2017, the deadline for [his] Notice of
Request for Post-Conviction Relief was April 20, 2017. This
Rule 32 proceeding is thus untimely by more than one year.
(Id.). The state court also concluded:
“Nevertheless, [Cortez] contents that the untimeliness
of this Rule 32 proceeding is without fault on his part and
[that] he is entitled to relief under Arizona Rule of
Criminal Procedure 32.1(f). . . . He fails to supply an
adequate factual or legal basis for relief.” (ECF No.
10-1 at 35).
state trial court also found Cortez's substantive claim
. . . Moreover, [Cortez] cannot raise these Rule
32.1(a) and Rule 32.1(c) claims in an untimely
Rule 32 proceeding because the [N]otice may only raise claims
pursuant to Rule 32.1(d), (e), (f), (g), or
Ariz. R. Crim. P. 32.4(a)(2)(A); see generally State v.
Petty, [238 P.3d 637');">238 P.3d 637, 641, ¶ 11] ([Ariz.] App.
2010) (holding ineffective assistance of counsel claims are
“cognizable under Rule 32.1(a)”). The Rule
32.1(a) and Rule 32.1(c) claims [Cortez] has asserted were
required to be raised in a timely Rule 32 proceeding. In sum,
[Cortez] fails to state a claim for which relief can be
granted in an untimely Rule 32 proceeding. ...