Timmons v. Schriro et al

Filing 14

ORDER - IT IS ORDERED that Petitioner's 13 Objections to the Report and Recommendation are OVERRULED. FURTHER ORDERED accepting and adopting the 12 Report and Recommendation in its entirety as discussed in this Order. FURTHER ORDERED that the 1 Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly. Signed by Judge James A Teilborg on 2/23/09. (SAT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Latroy Timmons, Petitioner, vs. Dora B. Schriro, et al., Respondents.

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No. CV 08-263-PHX-JAT (MHB) ORDER

Petitioner pro se, Latroy Timmons ("Petitioner"), filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 8, 2008. (Dkt. #1.) The matter was assigned to United States Magistrate Judge Michelle H. Burns, who issued a Report and Recommendation on November 26, 2008 (Dkt. #12), recommending that the Court deny and dismiss with prejudice the Petition for Writ of Habeas Corpus. Petitioner filed a written objection to the Report and Recommendation on December 11, 2008. (Dkt. #13.) STANDARD OF REVIEW This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1126 (D.Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of

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factual and legal issues is required if objections are made, `but not otherwise.'"). District courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made."). As stated above, Petitioner seeks relief from his state court conviction based on 28 U.S.C. § 2254. With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2), this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law"1 or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "When applying these standards, the federal court should review the `last reasoned decision' by a state court . . . ." Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Accordingly, the summary denial of Petitioner's petition for review by the Arizona Court of Appeals renders the trial court's decision on Petitioner's Petition for Post-Conviction Relief the "last reasoned decision" of the state court, subject to this Court's review. See Y1st v. Nunnemaker, 501 U.S. 797, 803-03 (1991) ("later unexplained orders upholding [a] judgment [rejecting a federal claim]" raises a presumption that the reviewing court "looks through" that order to the last reasoned decision).

Further, in applying "Federal law" the state courts only need to act in accordance with Supreme Court case law. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003)("In attempting to answer [whether the state court applied Federal law in an objectively reasonable manner], the only definitive source of clearly established federal law under AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams [v. Taylor], 529 U.S. [362], 412 [(2000)]. While circuit law may be `persuasive authority' for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999), only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. See Williams, 529 U.S. at 412 (`The ... statutory language makes clear . . . that § 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence.')"). -2-

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Further, this Court must presume the correctness of the state court's factual findings regarding a petitioner's claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998). Additionally, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). DISCUSSION Petitioner objects to the Report and Recommendation on several grounds: (1) that Petitioner's counsel was ineffective during the acceptance of the plea agreement and subsequent sentencing; (2) that it was error for the trial court to deny Petitioner's motion to withdraw from the plea agreement; and (3) that the trial court's imposition of an aggravated sentence was unconstitutional. In this case, because objections were filed, this Court will review all issues to which an objection was filed de novo. I. INEFFECTIVE ASSISTANCE OF COUNSEL Under Strickland v. Washington, 466 U.S. 668 (1984) and its progeny, "[a]n ineffective assistance of counsel claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citations and quotations omitted). A deficient performance is one that is "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. In the context of a plea agreement, a defendant may attack the voluntary and intelligent character of the plea by showing that the advice he received from counsel fell below the level of competence expected of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56 (1985). In order to show prejudice, Petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Without specifics that cause the court to have such -3-

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doubts, a claim of ineffective assistance of counsel must be denied. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (noting that petitioner needs to "identify what evidence counsel should have presented" to show his innocence). In the context of a plea agreement, Petitioner, "must show that there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. Further, where a defendant cannot establish prejudice, the court need not reach the performance prong. Williams v. Calderon, 52 F.3d 1465, 1470 (9th Cir. 1995). A. Ineffective Assistance Claim in State Court

As recounted in the Report and Recommendation, Petitioner raised a claim of ineffective assistance of counsel before the state courts in his Petition for Post-Conviction Relief. (Report & Recommendation, Dkt. #12, pp. 6-7.) Petitioner contended his counsel (1) failed to effectively explain the consequences of entering into the plea agreement, and (2) failed to object to the use and introduction of the pre-sentence report during sentencing. The state court concluded that Petitioner was advised, by both counsel and the trial court, of the consequences of entering into the plea agreement. (Id. at 7.) Further, the state court found that Petitioner had waived his right to have a jury determine the existence of aggravating factors; therefore the trial court's use of the pre-sentence report to determine aggravating factors was proper. (Id.) As discussed above, this Court must defer to these conclusions unless they were contrary to, or involved an unreasonable application of, clearly established federal law, or were based on an unreasonable determination of the facts. See Lockyer, 538 U.S. at 71. B. Advice Regarding Plea Agreement

Petitioner argues that his counsel's alleged failure to make him "aware of his constitutional rights" and to inform him of the "nature of the plea," including his waiver of the right to have aggravating factors proven to a jury beyond a reasonable doubt, constitutes ineffective assistance of counsel. However, Petitioner fails to show that he was prejudiced by his counsel's alleged failure. The written, signed plea agreement clearly sets forth Petitioner's constitutional rights and the nature of his plea, including the waiver of his right -4-

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to have aggravating factors determined by a jury. Further, in response to the trial judge's specific inquiries concerning whether he fully understood the nature of the plea and the rights he was waiving, Petitioner acknowledged that he was aware of and understood his rights, was willing to waive them and enter his pleas of guilty. (Dkt. #10, Answer to Petition for Writ of Habeas Corpus, Exh. P, Transcript of Change of Plea Proceedings.) Petitioner's statements to the trial court that he understood the sentence he was facing and agreed to waive his right to have a jury determine aggravating factors "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977) (defendant's statements at plea hearing "constitute a formidable barrier" at later proceedings). Therefore, absent any evidence in the record suggesting the guilty plea was not voluntary and intelligent, Petitioner's claim of ineffective assistance should be denied. In reviewing the record, the Court cannot find, nor does Petitioner point to, any evidence to indicate that the guilty plea was not voluntary and intelligent. As such, Petitioner fails to show a reasonable probability that he would not have pleaded guilty but for the alleged errors of his counsel, and thus cannot establish that he was prejudiced by his counsel's alleged deficiencies in performance. C. Judge's Use of Pre-Sentence Report

Petitioner also argues that his counsel's failure to object to the introduction and use of the pre-sentence report constitutes ineffective assistance. However, there is no state or federal law prohibiting a trial court from relying on a pre-sentence report. In fact, Rule 26.4 of the Arizona Rules of Criminal Procedure requires that a pre-sentence report be prepared in all cases in which the sentence to be imposed is more than one year and the court has discretion over the penalty to be imposed. See Ariz.R.Crim.P. 26.4. Further, any reliable information may be considered by the court in determining the propriety of a sentence within the allotted range. See Ariz.R.Crim.P. 26.7(b); State v. Fagnant, 176 Ariz. 218, 220 (1993); overruled on other grounds, in State v. Smith, __ Ariz. __, 194 P.3d 399 (2008); see also State v. Carbajal, 177 Ariz. 461, 463 (App. 1994) (upholding finding of aggravating factors based on reliance on information provided in pre-sentence report). Therefore, the Court finds -5-

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that had Petitioner's counsel objected to the introduction and use of the pre-sentence report, it would have been futile, and would not have changed the changed the result of the proceeding. D. Conclusion

Petitioner fails to establish that the state court decision that Petitioner failed to raise a colorable claim of ineffective assistance of counsel was contrary to, or involved an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts. Accordingly, the Court will deny habeas relief based on Petitioner's ineffective assistance of counsel claim. II. DENIAL OF MOTION TO WITHDRAW FROM THE PLEA AGREEMENT A state court's decision on a motion to withdraw from a plea does not present a federal constitutional issue. See Langford v. Day, 110 F.3d 1380, 1388-89 (9th Cir. 1997) (holding that the Montana state courts' application of the state's "good cause" standard to withdraw from a plea does not raise an issue of federal due process). Further, merely asserting a due process violation will not convert a state law issue into a federal issue in the habeas context. See id. at 1389 (state law issues are not cognizable as a federal habeas claim). Thus, on this state law issue (i.e., the standard for withdrawing from a plea), the Court defers to the state court's conclusion. Further, even if this Court had the authority to consider this claim on the merits, the state court correctly applied state law. Rule 17.5 of the Arizona Rules of Criminal Procedure provides that a court may allow withdrawal from a guilty plea when necessary to avoid a manifest injustice. See Ariz.R.Crim.P. 17.5. The burden of proof is on the defendant to establish that withdrawal from the plea is necessary to correct a manifest injustice. See State v. Romers, 159 Ariz. 271, 274 (App. 1988). The Court notes however, that a motion to withdraw from a plea is left to the discretion of the trial court. See State v. Gibbs, 6 Ariz.App. 600, 601-02 (1967). Petitioner premised his right to withdraw on his claim of "actual innocence," and the alleged failure of the court and his counsel to advise him of his right to a jury determination -6-

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of the facts used to aggravate his sentence. Petitioner fails to carry his burden of establishing a manifest injustice; he merely asserts that he is innocent. Petitioner points to no objective evidence of his innocence other than his desire to challenge the physical evidence against him. However, "[a] defendant is not entitled to withdraw from his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case . . . ." State v. Fowler, 137 Ariz. 381, 383 (App. 1983). Further, as discussed above, there is no evidence that Petitioner was not fully aware of the rights that he was waiving by entering into the plea agreement. Accordingly, this Court defers to the state court's correct decision that Petitioner had not met the state's manifest injustice standard to withdraw from his plea. III. IMPOSITION OF AN AGGRAVATED SENTENCE Petitioner argues that the imposition of an aggravated sentence is not proper because the determination of the existence of any aggravating circumstances was not presented to a jury and proved beyond a reasonable doubt.2 Petitioner also raised this claim in his Petition for Post-Conviction Relief. The state court found that Petitioner had waived his right to have a jury determine the existence of aggravating circumstances when determining whether to impose an aggravated sentence. (Dkt. #1-2, p. 29.) As discussed above, this Court must defer to this conclusion unless it was contrary to, or involved an unreasonable application of, Petitioner also argues that to the extent that he waived his right to have aggravating factors determined by a jury, that such a waiver is unconstitutional. However, in Blakely, the Supreme Court held that a defendant may waive his right to have a jury, as opposed to a judge, determine the existence of aggravating factors. Specifically, the Court stated: Justice Breyer argues that Apprendi works to the detriment of criminal defendants who plead guilty by depriving them of the opportunity to argue sentencing factors to a judge. But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. Blakely v. Washington, 542 U.S. 296, 310 (2004). -72

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clearly established federal law, or was based on an unreasonable determination of the facts. See Lockyer, 538 U.S. at 71. In Blakely, the Supreme Court held that any fact (besides the finding of a prior conviction) that increases the range of punishment beyond the statutory maximum that would be authorized by the jury's verdict alone must be submitted to a jury and proved beyond a reasonable doubt. See Blakely, 542 U.S. at 301 (applying "the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): `Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the presumptive statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.'"). In Arizona, the presumptive sentence is generally considered the statutory maximum. See State v. Price, 217 Ariz. 182, ¶ 8 (2007) ("[t]he statutory maximum for Apprendi purposes . . . is the presumptive sentence established" by statute). However, If there is one Apprendi-compliant aggravating factor, `a defendant is exposed to a sentencing range that extends to the maximum punishment available under section 13-702.' Once such a factor is properly found-by the jury, based on a defendant's admission, or, for a prior conviction, by the court or jury-`the Sixth Amendment permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum prescribed in that statute.' Id. at 185, ¶ 15 (citations omitted). Here, the trial court noted that Petitioner had four prior felony convictions. Therefore, the trial court was permitted to consider additional factors relevant to the imposition of a sentence up to the maximum prescribed in the statute. Moreover, Petitioner waived his Apprendi/Blakely rights and consented to judicial factfinding with regard to the existence of aggravating factors in his plea agreement. As such, the Court cannot find that the state's imposition of an aggravated sentence was contrary to, or involved an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts. Accordingly, the Court finds that the trial court's imposition of an aggravated sentence was proper.

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CONCLUSION The Court finds that Petitioner fails to establish that the state court's denial of his Petition for Post-Conviction Relief was contrary to, or involved an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts. IT IS THEREFORE ORDERED that Petitioner's objections to the Report and Recommendation are OVERRULED. (Dkt. #13.) IT IS FURTHER ORDERED accepting and adopting the Report and Recommendation in its entirety as discussed in this Order. (Dkt. #12.) IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. (Dkt. #1.) IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly. DATED this 23rd day of February, 2009.

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