Cortez v. Ryan

          REPORT AND RECOMMENDATION

          Camille D. Bibles United States Magistrate Judge

         TO THE HONORABLE DIANE J. HUMETEWA:

         Petitioner 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.

         I. Background

         A 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 incident.

(ECF No. 10-1 at 21).

         The 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 probation. (Id.).

         Cortez initialed the following paragraph in the written plea agreement:

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 agreement.

(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.).

         Accordingly, 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.).

         Cortez 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] status.”).

         The state trial court dismissed Cortez's Rule 32 action on June 6, 2018. (ECF No. 10-1 at 34). The trial court determined:

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).

         The state trial court also found Cortez's substantive claim procedurally barred:

. . . Moreover, [Cortez] cannot raise these Rule 32.1(a)^[1] 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 (h).^[2] 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. ...