Salazar v. Ryan, CV-13-01542-TUC-BGM

• Decision Date: 25 August 2016
• Docket Number: No. CV-13-01542-TUC-BGM,CV-13-01542-TUC-BGM
• Parties: Noa Salazar, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Noa Salazar, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CV-13-01542-TUC-BGM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 25, 2016

ORDER

Currently pending before the Court is PetitionerNoa Salazar'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) and Petitioner replied (Doc. 16).The Petition is ripe for adjudication.

Also pending before the Court is Petitioner's Motion to Vacate Conviction(Doc. 19) and Petitioner's Request for Copy of Docket and Status of Case (Doc. 22).

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I.FACTUAL AND PROCEDURAL BACKGROUND

The Arizona Court of Appeal stated the facts¹ as follows:

[W]itnesses observed Salazar as he parked his vehicle on the wrong side of the road in a manner that impeded traffic, got out holding and drinking an alcoholic beverage, and urinated in the bushes of a nearby residence.Additional evidence established that, on the same day, Salazar had an estimated AC of .271 within two hours of driving, his license previously had been suspended and revoked, and he had been convicted of three felony offenses committed within the preceding five years.

Answer (Doc. 15), Ariz. Ct. of Appeals, Memorandum Decision 10/12/2010 (Exh. "J")at 2.

On August 28, 2008, a jury found Petitioner guilty of Aggravated Driving Under the Influence While License is Suspended, Revoked or in Violation of a Restriction as alleged in Count One of the Indictment and guilty of Aggravated Driving With an Alcohol Concentration of 0.08 or More While License is Suspended or Revoked as alleged in Count Two of the Indictment.Answer (Doc. 15), Ariz. Superior Ct., Pima County, Case No. CR-20080843, Verdict Forms (Exh. "G")at 1-2.On March 25, 2010, Petitioner was sentenced to two aggravated terms of twelve (12) years imprisonment with consecutive community supervision in accordance with A.R.S. § 13-603(1), to be served concurrently.Answer (Doc. 15), Ariz. Superior Ct., Pima County, Priors Trial/Sentence of Imprisonment Minute Entry 3/25/2010 (Exh. "H")at 2-3.

A.Direct Appeal

On July 12, 2010, counsel for Petitioner filed an Anders² brief with the Arizona Court of Appeals.³Answer (Doc. 15), Appellant's Opening Br. 7/12/2010(Exh. "I").On October 12, 2010, the Arizona Court of Appeals affirmed Petitioner's conviction.Answer (Doc. 15), Ariz. Ct. App. Memorandum Decision 10/12/2010(Exh. "J").The court of appeals concluded that "substantial evidence supported findings of all the elements necessary for Salazar's convictions."Id., Exh. "J"at 2(citingA.R.S. §§ 28-1381(A)(1),(2); 28-1383(A)(1)).The court further held that "Salazar's sentences were within the range authorized and were imposed in a lawful manner."Id., Exh. "J"at 2(citingA.R.S. §§ 13-105(22)(c); 13-703(C),(J)).The appellate court certified that its "examination of the record pursuant to Anders, . . . found no reversible error and no arguable issue warranting further appellate review."Id., Exh. "J"at 3.

B. Post-Conviction Relief Proceeding

On August 9, 2010, Petitioner filed his Notice of Post-Conviction Relief ("PCR").Answer (Doc. 15), Not. of PCR 8/9/2010(Exh. "K").On December 7, 2010, counsel for Petitioner filed a Petition for Post Conviction Relief.See Answer (Doc. 15), Pet. for PCR 12/7/2010(Exh. "L").Petitioner asserted ineffective assistance of trial counsel, alleging that counsel 1) failed to inform him of the trial date; and 2) failed to adequately investigate and present mitigating evidence at sentencing.See Answer (Doc. 15), Exh. "L"at 7, 10-14, 16-19.Petitioner further asserted that his Sixth Amendment right to be present at trial was violated.Id., Exh. "L"at 7, 14-16.Finally, Petitioner asserted that the trial court committed sentencing error based on its imposition of both aggravated and consecutive sentences.Id., Exh. "L"at 7, 20-24.

On June 18, 2012, the Rule 32 court denied Petitioner's petition.See Answer (Doc. 15), Ariz. Superior Ct., Pima County, Under Advisement Ruling 6/18/2012(Exh. "M").Prior to denial of the petition, the Rule 32 Court held an evidentiary hearing.See Answer (Doc. 15), Exh. "M"at 3;Rule 32 Evid. Hr'g Tr. Excerpts 3/2/2012(Exh. "B");Rule 32 Evid. Hr'g Tr. - Afternoon Session Excerpts 3/2/2012(Exh. "C").The Rule 32 court declined to impose on an attorney "a duty to search for [a] client or cause an investigation as to the defendant's whereabouts . . . where [no such duty] is stated in the [Ethical] Rule or Comment."Answer (Doc. 15), Exh. "M"at 4.The court went on to note that even if there were such a duty, that duty would be extinguished or waived by a client who fails to comply with release conditions including contacting his attorney and providing contact information; a client's failure to appear at hearings of which he hadnotice; a client's whereabouts are unknown; or the court issues a warrant for defendant's arrest before the trial.Id., Exh. "M"at 5.The court found that "[t]he client was prejudiced by his own actions but not by the action or inaction of his attorney."Id., Exh. "M"at 5.As such, the Rule 32 court held that trial counsel was not ineffective.

The Rule 32 court also recognized Petitioner's federal and state constitutional right to be present at trial.Id., Exh. "M"at 6.It found, however, that "[a]defendant may waive his right to be present at any proceeding by voluntarily absenting himself or herself from it."Id., Exh. "M"at 6.The court further found that the Petitioner received court orders and acknowledged that his failure to appear could result in the court case and trial proceeding in his absence.Answer (Doc. 15), Exh. "M"at 6.In light of Petitioner's failure to contact his attorney, provide his contact information to his attorney, or attend the Case Management Conference, the court found that Petitioner's "conduct was a clear, if not express, intentional, voluntary and knowing waiver and rejection of his right to be present at trial."Id., Exh. "M"at 8.

The Rule 32 court also denied Petitioner's ineffective assistance of counsel claim for an alleged failure to present additional mitigating evidence at trial.Id., Exh. "M"at 9.The Rule 32 court determined that this assertion of ineffectiveness arose "from an erroneous understanding of A.R.S. 13-603 L."Id., Exh. "M"at 9.As such, the Rule 32 found that "(a)counsel's representation was not below an objective standard of reasonableness; and (b) that the Petitioner suffered no prejudice because the mitigating evidence, though important, does not outweigh the aggravating factors found by the court at sentencing."Id., Exh. "M"at 9.

Regarding any alleged sentencing error, the Rule 32 court noted that the "issue is arguably precluded as a matter that should have been raised on appeal."Answer (Doc. 15), Exh. "M"at 10(citingAriz. R. Crim. P. 32.2(a)(1)).The court considered the merits and held that "[t]he requirement that the sentence in this case run consecutive to the Maricopa case was a conscious exercise of this court's discretion . . . [not] from a default designation of consecutive sentences pursuant [to]Rule 26.13."Id., Exh. "M"at 10.

On September 5, 2012, Petitioner filed a Petition for Review to the Arizona Court of Appeals.Answer (Doc. 15), Pet. for Review to the Ariz. Ct. of Appeals 9/5/2012(Exh. "N").Petitioner alleged that "trial counsel failed to advise Petitioner of his trial date, and did not conduct an adequate investigation into Petitioner's whereabouts before trial in order to assure his presence at trial" in violation of Strickland,⁴ Arizona ethical rules, and the Due Process Clause.Answer (Doc. 15), Exh. "N"at 15-16.On January 9, 2013, the Arizona Court of Appeals granted review, but denied relief.See Answer (Doc. 15), Ariz. Ct. of Appeals, Mem. Decision 1/9/2013(Exh. "O").The court of appeals relied on Arizona law and gave the Rule 32 court's factual findings deference.Id., Exh. "O"at 3.The appellate court recognized "an out-of-custody defendant's duty to maintain contact with his or her attorney and to appear in court."Id., Exh. "O"at 3(citingState v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354(Ct. App.1996)).Accordingly, the court of appeals concluded that there was no error in the Rule 32 court's findings "that counsel's performance was not deficient and that Salazar's right to be present at trial was not violated."Id., Exh. "O"at 3.On July 23, 2013, the ArizonaSupreme Court denied review.Answer (Doc. 15), Ariz. Supreme Ct. Minute Entry 7/23/2013 (Exh. "P")at 1.

D.The Instant Habeas Proceeding

On October 28, 2013, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)(Doc. 1).Petitioner claims two (2) grounds for relief.First, Petitioner argues that trial "counsel was prejudicially ineffective, violating the Constitutional Guarantee of reasonable competence and undivided loyalty by abandoning his client's cause and join[ing]the Prosecution by advising, directing and representing to the Court to proceed with trial in his client's absence when the Court offered counsel 4 hours to contact and produce his client before trial commenced."Petition (Doc. 1)at 6.Second, Petitioner alleges that his "Due Process Rights were violated when he was unreasonably denied the right to be present for jury trial because of his lawyer's intentional conduct to prejudice him by refusing to even attempt to contact Salazar with notice that trial was commencing."Id. at 7.On February 5, 2014, Respondents filed their Answer (Doc. 15).On February 13, 2014, Petitioner replied (Doc. 16).

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...