Hernandez-Roque v. Ryan
| Decision Date | 27 May 2016 |
| Docket Number | No. CV-14-01814-PHX-DJH (ESW),CV-14-01814-PHX-DJH (ESW) |
| Parties | Jorge Hernandez-Roque, Petitioner, v. Charles L. Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Pending before the Court is Jorge Hernandez-Roque's ("Petitioner") Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) (the "Petition"). Respondents have answered (Docs. 10, 16), and Petitioner has replied (Docs. 13, 17). The matter is deemed ripe for consideration.
The Petition contains four grounds for relief that allege the ineffective assistance of Petitioner's trial counsel. Respondents do not argue that the Petition is untimely or that Petitioner's claims are procedurally defaulted. The undersigned finds that all four grounds for relief are meritless. It is therefore recommended that the Court deny the Petition.
Petitioner is currently incarcerated at the Arizona State Prison Complex in Yuma, Arizona. After an August 2010 trial with co-defendant Juan Abundez Leyva ("Leyva"), a jury convicted Petitioner on two counts: (i) conspiracy to commit possession of marijuana for sale and (ii) possession of marijuana for sale having a weight that exceeds four pounds. (Doc. 1-1 at 9-10). Both counts are class two felonies under Arizona law. (Id. at 9). The trial court sentenced Petitioner to concurrent prison terms of 15.75 years on each count. (Id. at 11). The trial court also revoked Petitioner's probation on his prior felony convictions. (Id.).
The following is a summary of the facts underlying Petitioner's convictions as recounted by the Arizona Court of Appeals in its July 2011 decision.1 On June 17, 2009, police conducted surveillance on a house located on West Vista Avenue in Glendale, Arizona as part of a narcotics investigation. (Id. at 6). An officer observed a black Dodge truck (the "Dodge") parked on the street in front of the house. (Id. at 7). A black Toyota Camry (the "Camry") briefly stopped in front of the house, drove away, then returned approximately twenty minutes later and parked on the street in front of the house. (Id.). The driver of the Camry, Christopher Notice ("Notice"), entered the house. Several minutes later, Notice returned to the Camry and drove away. (Id.).
Shortly after the Camry left the premises, Petitioner exited the West Vista house, moved the Dodge onto the driveway, and went back inside the house. (Id.). Petitioner left the house a few minutes later carrying a large black plastic bag that contained "bulky material." Petitioner placed the bag under a piece of drywall in the truck bed of the Dodge, then drove away in the Dodge. (Id.).
Officers began mobile surveillance on both the Dodge and Camry. (Id.). After stopping at a gas station for approximately five minutes, the Dodge and Camry traveled to a golf course parking lot. (Id.). While Petitioner remained in the Dodge, Notice exited the Camry, grabbed the large black plastic bag from the Dodge's truck bed, and placedthe bag in the trunk of the Camry. (Id. at 7-8). The Dodge and Camry then exited the parking lot. (Id. at 8).
Officers stopped the Camry and smelled a strong marijuana odor coming from inside the vehicle. (Id.). A K-9 officer arrived with his drug-sniffing dog, which alerted to the large black plastic bag. (Id.). The bag contained over seven pounds of marijuana. (Id.).
Other officers stopped the Dodge at approximately the same time the Camry was stopped. (Id.). The same K-9 officer who assisted in the stop of the Camry directed his dog to conduct a "free air sniff" around the Dodge. (Id. at 9). Although the dog alerted the officer that there were drugs in the vehicle, no drugs were found. (Id.). The K-9 officer opined that the dog smelled marijuana that was previously inside the Dodge. (Id.).
Officers later searched the West Vista house, and discovered marijuana of the same type found in the Camry's trunk. (Id. at 8).
In its July 7, 2011 decision, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 5-15). Petitioner did not petition the Arizona Supreme Court for review.
On September 13, 2011, Petitioner filed a Notice of Post-Conviction Relief ("PCR"). (Doc. 13 at 13). On May 30, 2012, Petitioner's PCR counsel filed a PCR Notice and PCR Petition. (Doc. 10-1 at 22-25; Doc. 1-1 at 20). On September 12, 2012, the trial court denied the PCR Petition. (Doc. 1-1 at 76-77). Petitioner filed a Petition for Review in the Arizona Court of Appeals. (Id. at 79-91). On January 7, 2014, the Arizona Court of Appeals affirmed the trial court's denial of the PCR Petition. (Id. at 122-25). Petitioner did not seek further review by the Arizona Supreme Court.
On August 15, 2014, Petitioner initiated this federal habeas proceeding. (Doc. 1). In accordance with the Court's November 2014 Order (Doc. 7), Respondents answered the Petition. (Doc. 10). Respondents argued in their Limited Answer that the Petitionwas filed after the expiration of the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996. (Id. at 9-16). Respondents' argument rested primarily on Petitioner's PCR Notice filed on May 30, 2012. In a September 2015 Order (Doc. 15), the undersigned observed that the Limited Answer did not address the PCR Notice filed on September 13, 2011. The undersigned noted that in light of the September 13, 2011 PCR Notice, the Petition appears to be timely. (Id. at 3). The undersigned ordered Respondents to address the September 13, 2011 PCR Notice. (Id.). In their Supplemental Answer filed on October 16, 2015, Respondents concede that the Petition is timely and address the claims presented in the Petition on the merits. (Doc. 16 at 5, 10-14). Petitioner has replied to Respondents' Supplemental Answer. (Doc. 17).
In reviewing the merits of a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
28 U.S.C. § 2254(d)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S. Ct. 2148, 2151 (2010); Richter, 562 U.S. at 99.
As to the first entitlement to relief explained above, "clearly established federal law" refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is "contrary to" such clearly established federal law if the state court (i) "applies a rule that contradicts the governinglaw set forth in [U.S. Supreme Court] cases" or (ii) "confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent." Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to the second entitlement to relief explained above, factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). That is, a state court's determination that a claim lacks merit precludes federal habeas relief so long as "fair-minded jurists could disagree" on the correctness of the state court's decision. Richter, 562 U.S. at 101; Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
The "clearly established federal law" for an ineffective assistance of counsel ("IAC") claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an IAC claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and "[s]urmounting Strickland's high bar is never an easy task." Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). In the habeas context, the issue is whether there is a Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal quotation marks and citation omitted).
In assessing the performance factor of Strickland's two-part test, judicial review "must be highly deferential" and the court must try not "to second-guess counsel's assistance after conviction." Clark, 769 F.3d at 725 (). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers "whether there is any reasonable...
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