Landeros v. Shinn, CV-17-0182-TUC-RCC (BGM)

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
• Writing for the Court: Honorable Bruce G. Macdonald United States Magistrate Judge
• Parties: Jesus Landeros, Petitioner, v. David Shinn, et al., Respondents.
• Docket Number: No. CV-17-0182-TUC-RCC (BGM),CV-17-0182-TUC-RCC (BGM)
• Decision Date: 30 July 2020

Jesus Landeros, Petitioner,
v.
David Shinn,¹ et al., Respondents.

No. CV-17-0182-TUC-RCC (BGM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 30, 2020

REPORT AND RECOMMENDATION

Currently pending before the Court is Petitioner Jesus Landeros's Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) ("Petition") (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 24), and 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,² 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).

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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Charge and Sentencing

On August 18, 2015, Petitioner pleaded guilty to one count of attempted possession of a dangerous drug for sale (methamphetamine). Answer (Doc. 24), Ariz. Superior Ct., Greenlee County, Case No. CR2015-0045, Minute Entry—Change of Plea 8/18/2015 (Exh. "A") (Doc. 25). Defendant admitted that on May 31, 2015, he had methamphetamine in his house in Clifton, Arizona in Greenlee County. Answer (Doc. 24), Ariz. Superior Ct., Greenlee County, Case No. CR2015-0045, Hr'g Tr. 8/18/2015 (Exh. "C") (Doc. 25) at 8:23-9:10. Defendant confirmed that he knew it was approximately 13.1 ounces of methamphetamine and that he had it for the purpose of selling it. Id., Exh. "C" (Doc. 25) at 9:11-23.

On September 1, 2015, Petitioner was sentenced to an aggravated term of 8.75 years of imprisonment. Answer (Doc. 24), Ariz. Superior Ct., Greenlee County, Case No. CR2015-0045, Sentence of Imprisonment 9/1/2015 (Exh. "D) (Doc. 25).

B. Post-Conviction Relief Proceeding

On June 1, 2016, Petitioner filed his Notice of Post-Conviction Relief ("PCR"). Answer (Doc. 24), Ariz. Superior Ct., Greenlee County, Case No. CR2015-0045, Def.'s Not. of PCR 6/1/2016 (Exh. "F") (Doc. 25). Petitioner was appointed counsel who filed a notice indicating that he could not locate any meritorious or colorable claims in the case. Answer (Doc. 24), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2016-00383-PR, Resp. to Pet. for Review of PCR (Exh. "L") (Doc. 26) at 62.³ On September 14, 2016, Petitioner filed his pro se Petition for Post-Conviction Relief. Answer (Doc. 24), Ariz. Superior Ct., Greenlee County, Case No. CR2015-0045, Def.'s Pet. for PCR 9/14/2016 (Exh. "G") (Doc. 25). Petitioner asserted two claims for relief, including that he was "unlawfully induced [into a] plea of guilty or no contest" and that his attorney allegedly failed "to file a timely notice of appeal after being instructed to do so." Id.,

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Exh. "G" (Doc. 25) at 52. The State of Arizona filed its response, and urged dismissal because Petitioner's Rule 32 petition was untimely. See Answer (Doc. 24), Ariz. Superior Ct., Greenlee County, Case No. CR2015-0045, Resp. to Pet. for PCR 9/28/2016 (Exh. "H") (Doc. 26). The State further argued that even if Petitioner's Petition was deemed timely, it was without merit. See id., Exh. "H." On October 6, 2016, Petitioner filed his reply. Answer (Doc. 24), Ariz. Superior Ct., Greenlee County, Case No. CR2015-0045, Pet.'s Reply to Resp. to Pet. for PCR (Exh. "I") (Doc. 26). Petitioner asserted that he is entitled to a lower sentence because there was a slight discrepancy between the quantity of methamphetamine that Petitioner pled guilty to possessing (366.8 grams) and the amount included in the presentence report (377 grams), which in Petitioner's view, resulted in a faulty plea. Id., Exh. "I" at 44-45.

1. PCR Order

On October 17, 2016, the Rule 32 court denied Petitioner's petition as untimely. See Answer (Doc. 24), Ariz. Superior Ct., Greenlee County, Case No. CR2015-0045, Decision 10/17/2016 (Exh. "J") (Doc. 26). The Rule 32 court rejected Petitioner's claim that his Petition was untimely because he was not provided a notice of his rights by his counsel. Id., Exh. "J" at 48. The Rule 32 court noted that "Jesus Landeros heard his rights explained to him at sentencing and was provided written notice in English and Spanish following sentencing." Id., Exh. "J" at 48 (emphasis in original). The Rule 32 court further observed that "[a]t the Change of Plea hearing, the sentencing range was made very clear to Jesus Landeros." Id., Exh. "J" at 49. The court held that "Jesus Landeros' allegation of ineffective assistance of counsel is contradicted by the record." Id., Exh. "J" at 49.

2. PCR Appeal

On November 3, 2016, Petitioner sought review of the denial of his PCR petition by the Arizona Court of Appeals. See Answer (Doc. 24), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2016-00383-PR, Pet.'s Pet. for Review (Exh. "K") (Doc. 26). Petitioner asserted that because there was an unresolved question of fact, he was

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denied his right to confrontation and ineffective assistance of counsel occurred. Id., Exh. "K" at 53-56. Petitioner further asserted that his constitutional right to an appeal was violated. Id., Exh. "K" at 57. Petitioner also urged that he was entitled to a four (4) year sentence of imprisonment under the plea agreement. Id., Exh. "K" at 58-59.

On December 7, 2016, the State filed its response and asserted that Petitioner had not challenged the Rule 32 court's holding that his Notice of PCR was untimely. See Answer (Doc. 24), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2016-00383-PR, Resp. to Pet. for Review of PCR (Exh. "L") (Doc. 26). The State further observed that the remainder of Petitioner's arguments were without merit. Id., Exh. "L" at 64-66.

On January 10, 2017, the Arizona Court of Appeals denied review. See Answer (Doc. 24), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2016-00383-PR, Mem. Decision 1/10/2017 (Exh. "M") (Doc. 26). The appellate court observed that "[t]o the extent [it] was able to follow [Petitioner's] arguments, Landeros appear[ed] to assert new claims that were not addressed by the trial court and so are not properly before [the appellate court] on review." Id., Exh. "M" at 71 (citing Ariz. R. Crim. P. 32.9(c)(1)(ii); then citing State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (Ariz. Ct. App. 1980)). In light of Petitioners "failure to comply with Rule 32.9[,]" the appellate court summarily denied review. Id., Exh. "M" at 72. On September 8, 2017, the Arizona Court of Appeals issued its mandate. Answer (Doc. 24), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2016-00383-PR, Mandate 9/8/2017 (Exh. "N") (Doc. 26).

C. The Instant Habeas Proceeding

On April 24, 2017, Petitioner filed his Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner asserts three (3) grounds for relief. First, Petitioner alleges that "PRECLUSION OF QUESTION ON EVIDENCE OPERATED TO DENY DEFENDANTS [sic] HIS CONSTITUTIONAL RIGHTS 6th [sic] and 14th AMENDS TO CONFRONTATION COUNSELS [sic] REFUSAL TO SPECIFIC [sic] ACTS RESULTING IN PREJUDICE ON ACCEPTING OR REJECTING A STATE PLEA

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SET IN PLACE FEDERAL COMPARABLE PROCEDURE[.]" Id. at 6 (emphasis in original). Petitioner further urges that "[u]ntimely disclosures at sentence [sic] violated defendants [sic] rights at sentencing when requirements and standards are not met set in place ARIZ. R. EVIDENCE 410 Federal comparable procedure." Id. at 7 (emphasis in original). Second, Petitioner asserts that "[t]he Question Presented (is) it FAIR JUDICIOUSLY FOR THE COURT TO TAKE ADVANTAGE OF A DEFENDANTS [sic] RIGHT TO DUE PROCESS WHENEVER IT PLEASE THE GOVERNMENT TO DENY A STATE AND FEDERAL RULE SET IN PLACE TO PROTECT THE RIGHTS OF INDIVIDUALS [sic] RIGHTS [sic] THAT BALANCES THE DUE PROCESS REQUIREMENT." Id. at 8 (emphasis in original). Petitioner asks if the trial court erred (1) "by not using the requirements rules of evidence in a Plea agreement with COUNSEL PRESENT"; (2) "determining the FACTS under the DEADLINE requirements"; (3) "by not correcting the discrepancy before the deadline BEFORE SENTENCE [sic]." Id. (emphasis in original). Petitioner also posits "[i]f counsel is PRESENT WHEN THE FACTS are in dispute can this result in a [sic] ineffective assistance of counsel at sentencing[.]" Petition (Doc. 1) at 8 (emphasis in original). Third, Petitioner asserts that his counsel was ineffective because he "WILLINGLY JOINED PROSECUTORS [sic] PARTY TO DENY HIS CLIENT HIS U.S. CONST 6th and 14th Amendments [sic]." Id. at 10 (emphasis in original). Petitioner contends that "issues of FACTS presented at sentence [sic]; before accepting a plea . . . moved from a 4 year agreement to a 8.75 not agreed upon by client[.]" Id. (emphasis in original).

On February 28, 2018, Respondents filed their Limited Answer (Doc. 24), and Petitioner did not reply.

II. STANDARD OF REVIEW

A. In General

The federal courts shall "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground

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that he is in custody in violation of the Constitution or laws of treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). Correcting errors of state...