Arvizu v. Ryan
| Decision Date | 10 February 2016 |
| Docket Number | No. CV-13-00102-TUC- JAS (BGM),CV-13-00102-TUC- JAS (BGM) |
| Parties | Jose Luis Arvizu, Petitioner, v. Charles L. Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Currently pending before the Court is Petitioner Jose Luis Arvizu's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 15). Petitioner did not file a Reply. The Petition is ripe for adjudication.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).
Tucson Police Department ("TPD") Officer Valerie Berg testified that on November 7, 2006 she was working as an undercover narcotics officer. Trial Tr. 11/27/2007 (Doc. 15-7) 128:4-134:18. Officer Berg further testified that she was introduced to Patricia Loya through a confidential informant, and made her first buy directly from Ms. Loya on August 8, 2006. Id. at 132:19-133:3. Officer Berg testified that on November 7, 2006, she placed a telephone call to Ms. Loya to tell her that she wanted to purchase two ounces of methamphetamine. Id. at 140:8-20, 179:17-24. Officer Berg further testified that she spoke with Ms. Loya and was directed to Ms. Loya's apartment. Id. at 141:14-142:8. Officer Berg testified that she drove to Ms. Loya's apartment, parked her vehicle, and observed Ms. Loya's daughter, Angélica Ramirez going up the stairs to the second floor balcony. Id. Officer Berg further testified that Angélica motioned for her to come up to the apartment. Trial Tr. 11/27/2007 (Doc. 15-7) 143:6-22, 181:4-15. After Officer Berg went to the apartment, Ms. Loya informed her that they needed to meet the person, so Officer Berg, Ms. Loya, and Angélica returned to Officer Berg's vehicle. Id. Officer Berg testified that she drove with Ms. Loya and Angélica to an apartment off of Country Club and Fifth Street. Id. at 146:11-147:10. During the drive Ms. Loya and Angélica both used Officer Berg's phone to try and contact the source. Id. Once they were in the apartment parking lot, Angélica used Officer Berg's phone, asked for Jose, and told the person that they were waiting, and hung up. Id. at 151:1-13. Officer Berg testified that she gave Ms. Loya $2,000.00, $1,800.00 for the drugs and $200 for her. Id. at 151:21-152:16, 184:22-185:17. OfficerBerg testified that Ms. Loya put the money in her purse, got out of her car and into a Dodge Neon, then returned in less than a minute or minute and a half, and handed Officer Berg three baggies of methamphetamine. Id. at 147:24-148:11, 153:16-154:16, 186:10-19. Officer Berg further testified that she had audio and video recording equipment recording the November 7, 2006 encounter with Ms. Loya and Angélica. Id. at 144:9-20.
Officer Cardwell, who worked for TPD on November 7, 2006, testified that he was assigned to perform surveillance of undercover Officer Berg and whoever she was meeting with. Trial Tr. 11/27/2007 (Doc. 15-7) 162:8-22. Officer Cardwell testified that he took photographs of the meet at the Country Club Apartments on November 7, 2006. Id. at 162:23-163:1. Officer Cardwell further testified regarding photographs from that encounter showing Officer Berg's vehicle, Ms. Loya exiting her vehicle and getting into a Dodge Neon, Ms. Loya returning to Officer Berg's vehicle, and then two male subjects exiting the Dodge Neon after the transaction was completed. Id. at 163:2-167:22. Officer Cardwell identified one of the males who exited the Dodge Neon as Defendant Jose Arvizu. Id. 167:8-22.
Patricia Loya testified that on November 7, 2006, she accompanied the undercover officer and her daughter Angélica to an apartment complex at Country Club and Speedway to buy drugs from Defendant Jose Arvizu. Trial Tr. 11/28/2007 (Doc. 15-8) 41:7-42:23. Ms. Loya testified that she got out of the undercover officer's vehicle and got in the car with Jose Arvizu and another unknown individual. Id. at 43:5-46:25. Ms. Loya testified that she got in the back seat and Jose Arvizu was in the front driver's seat. Id. Ms. Loya further testified that she bought drugs from Jose Arvizu that day and hadpreviously, as well. Id. at 47:1-20. Ms. Loya testified that the drugs she purchased from Jose Arvizu were to be sold to the undercover officer. Id. at 49:1-50:16.
Drug Enforcement Administration ("DEA") Special Agent ("SA") Richard Kivi testified regarding the wiretap that had been placed on Patricia Loya's cellular telephone. Trial Tr. 11/28/2007 (Docs. 15-8 & 15-9) 103:4-112:12. SA Kivi testified that initially, he analyzed Ms. Loya's cellular telephone records and obtained a warrant to install a pen register on that line. Trial Tr. 11/28/2007 (Doc. 15-9) 108:16-109:14. SA Kivi further testified that there were a significant number of phone calls between Ms. Loya's cellular telephone and the telephone subscribed to by Jose Arvizu. Id. SA Kivi compared the subscriber account information with Jose Arvizu's motor vehicle records and found a match. Id. at 109:19-110:21. SA Kivi also testified that the net weight of methamphetamine purchased on November 7, 2006 was 54.4 grams. Id. at 111:7-112:12.
Petitioner was charged with one count of conspiracy to possess for sale, transport for sale, offer to transport for sale, sell, transfer or offer to sell or transfer dangerous drugs and one count of unlawful transport for sale or offer to transport for sale or sell, transfer or offer to sell or transfer a dangerous drug, methamphetamine, in violation of Arizona law. Trial Tr. 11/28/2007 (Doc. 15-7) 109:23-21; see also Answer (Doc. 15), Ariz. Superior Ct., Pima County, Minute Entry 11/29/2007 (Exh. "A") at ¶ 1. On November 29, 2007, a jury found Petitioner guilty of both counts. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Minute Entry 11/29/2007 (Exh. "A") at 1-2. On December 21, 2007, Petitioner was sentenced to the presumptive term of five (5) yearsimprisonment for the conspiracy count and the presumptive term of ten (10) years imprisonment for the unlawful transport and/or transfer count to run concurrently. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 12/21/2007 (Exh. "B") at 2-3.
On September 16, 2008, Petitioner filed a Petition for a Delayed Appeal Pursuant to Rule 32.1(f) with the trial court. Answer (Doc. 15), Pet. for a Delayed Appeal 9/16/2008 (Exh. "E"). On September 19, 2008, the trial court granted Petitioner's Petition for a Delayed Appeal. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 9/19/2008 (Exh. "F"). On November 16, 2009, Petitioner filed a Request for Amended Sentence; Notice to Court with the trial court. Answer (Doc. 15), Pet.'s Request for Amended Sentence; Notice to Ct. 11/16/2009 (Exh. "H"). Petitioner acknowledged the Court's previous grant of his Petition for a Delayed Appeal, but stated that counsel was unable to file Petitioner's direct appeal because counsel did "not have a contract with Pima County to accept such appointments." Id., Exh. "H" at 1. As such, Petitioner sought amendment of his sentence to time served. Id., Exh. "H" at 2. On November 19, 2009, the trial court issued its Order noting "that counsel need not be appointed appellate counsel in order to file a Notice of Appeal on Petitioner's behalf." Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 11/19/2009 (Exh. "I") at 1. The trial court granted counsel leave to "file the initial Notice of Appeal and request that appellate counsel be appointed for Petitioner." Id., Exh. "I" at 1.
On February 8, 2010, Petitioner filed his Notice of Appeal. Answer (Doc. 15), Notice of Appeal 2/8/2010 (Exh. "J"). On August 5, 2010, counsel for Petitioner filed anAnders2 brief with the Arizona Court of Appeals.3 Answer (Doc. 15), Appellant's Opening Br. 8/5/2010 (Exh. "K"). On August 9, 2010, the Arizona Court of Appeals granted Petitioner leave to file a pro se supplemental brief on or before September 8, 2010. Id., Ariz. Ct. App. Order 8/9/2010 (Exh. "L"). Petitioner did not file a pro se supplemental brief.
On October 27, 2010, the Arizona Court of Appeals dismissed Petitioner's appeal as untimely. Answer (Doc. 15), Ariz. Ct. App. Order 10/27/2010 (Exh. "M"). Petitioner did not file a motion for reconsideration or petition for review. See Answer (Doc. 15), Ariz. Ct. App. Mandate 1/21/2011 (Exh. "N") at 1.
On January 4, 2008, Petitioner filed his Notice of Post-Conviction Relief ("PCR"). Answer (Doc. 15), Not. of PCR 1/4/2008 (Exh. "C"). On November 19, 2008, the Rule32 court stayed the pending Rule 32 proceedings in light of having granted his request for a delayed appeal. See Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 11/19/2008 (Exh. "G"). On February 3, 2011, Petitioner filed a Request to Reinstate Rule 32 Proceedings. Answer (Doc. 15), Pet.'s Request to Reinstate Rule 32 Proceedings 2/3/2011 (Exh. "O"). The Rule 32 court granted Petitioner's request and ordered that Petitioner file his PCR petition on or before April 5, 2011. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Order 2/7/2011 (Exh. "P").
On April 5, 2011, Petitioner filed his Petition for Post Conviction Relief. Answer (Doc. 15), Pet. for PCR (Exh. "Q"). Petitioner asserted three (3) grounds for relief: "1) defense counsel was ineffective in failing to provide a jury instruction on Petitioner's prior bad acts, 2) defense counsel was ineffective in advising Petitioner with respect to plea negotiations, and 3) Petitioner's sentence is disproportionate to a more culpable co-defendant's prison sentence." Id., Exh. "Q" at 1. On July 28, 2011, the Rule 32 court held an evidentiary hearing. See Answer (Doc. 15), Ariz. Superior Ct.,...
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