Ewing #266878 v. Ryan et al

Filing 28

ORDER - IT IS ORDERED that the motion to reopen (construed by this Court to be part of Doc. 26 ) is granted; accordingly, this Court's prior Order and Judgment dismissing this case (Docs. 23 and 24 ) are vacated. IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 22 ) is accepted and adopted; the objections are overruled (Doc. 26 ); to the extent the Court construed the objections as seeking leave to amend, leave to amend is denied; accordingly, the Clerk of the Court s hall enter judgment denying and dismissing the Petition, with prejudice. IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. Section 2253(c)(2). Signed by Senior Judge James A Teilborg on 06/04/15. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dominique Daron Ewing,
Petitioner,

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ORDER

v.

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No. CV-13-02571-PHX-JAT

Charles L. Ryan, et al.,

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Respondents.

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I.

Status of this case

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On December 17, 2013, Petitioner filed a Petition for Writ of Habeas Corpus. On

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October 16, 2014, the Magistrate Judge to whom this case was assigned issued a Report

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and Recommendation (R&R) recommending the Petition be denied and dismissed with

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prejudice. Doc. 22. Petitioner did not file objections to the R&R, and on November 20,

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2014, this Court accepted and adopted the R&R and denied and dismissed the Petition.

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Docs. 23 and 24.

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Later, this Court discovered Petitioner may not have been receiving

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correspondence from the Court. Doc. 25. This Court permitted Petitioner to move to

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reopen the case and contemporaneously file his objections to the R&R by March 6, 2015.

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Id. On March 5, 2015, this Court received Petitioner’s objections to the R&R. Doc. 26.

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The Court will construe this filing as both objections and a motion to reopen this case.

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II.

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Reopening case
Consistent with this Court’s February 5, 2015 Order (Doc. 25), the Court will

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grant Petitioner’s motion to reopen and consider his objections de novo.

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III.

Review of R&R

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As indicated above, pending before this Court is Petitioner’s Petition for Writ of

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Habeas Corpus and an R&R recommending the Petition be denied and dismissed with

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prejudice. This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. ' 636(b)(1). It is “clear that

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the district judge must review the magistrate judge=s findings and recommendations de

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novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263

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F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes

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that de novo review of factual and legal issues is required if objections are made, ‘but not

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otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d

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1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the

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[Magistrate Judge=s] recommendations to which the parties object.”). District courts are

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not required to conduct “any review at all . . . of any issue that is not the subject of an

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28

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U.S.C. ' 636(b)(1) (“the court shall make a de novo determination of those portions of

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the [report and recommendation] to which objection is made.”).

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As indicated above, Petitioner has now filed objections to the R&R. Accordingly,

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the Court will review the portions of the R&R to which there is an objection de novo.

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IV.

Petition

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A.

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In his objections, Petitioner states, “The petitioner concedes to the correctness of

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the factual background….” Doc. 26 at 1. Accordingly, this Court accepts and adopts the

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factual background from the R&R, which is as follows:

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Factual Background

I. Procedural Background
A. Charges, Guilty Plea, and Sentencing
On November 10, 2010, Petitioner was indicted in the Maricopa
County Superior Court on the following charges: (1) first-degree murder, a
class one dangerous felony (Count One); (2) attempted armed robbery, a
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class three dangerous felony (Count Two); (3) kidnapping, a class two
dangerous felony (Count Three); (4) aggravated assault, a class three
dangerous felony (Count Four); and (5) burglary in the first-degree, a class
two dangerous felony (Count Five). (Doc. 17, Ex. A.) The State also
alleged the following aggravating circumstances: (1) the offenses involved
the infliction or threatened infliction of serious physical injury; (2) the
offenses involved the use, threatened use, or possession of a deadly weapon
or dangerous instrument during the commission of the crime (a gun); (3)
the offenses involved the presence of an accomplice; (4) Petitioner
committed the offenses as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value; (5) the offenses
caused physical, emotional, or financial harm to the victim’s immediate
family; and (6) if the jury convicted Petitioner of multiple counts not used
to enhance his sentence, the State alleged that the offenses resulted in
multiple convictions. [footnote omitted] (Doc. 17, Ex. B.)
On August 29, 2011, Petitioner entered into a plea agreement with
the State. (Doc. 17, Ex. D.) The plea agreement provided that Petitioner
would plead guilty to first degree murder, which carries a presumptive
sentence of twenty-five years to life imprisonment. (Id. at 1.) The plea
agreement also stated that Petitioner would be sentenced to the Arizona
Department of Corrections and would pay restitution to the victims in an
amount up to $50,000. (Id.) In exchange for Petitioner’s guilty plea, the
State agreed to dismiss the other charges against him. (Id.) Paragraph six of
the plea agreement provided that Petitioner waived “any and all motions,
defenses, objections, or requests which he has made or raised or could
assert hereafter to the court’s entry of judgment against him and imposition
of a sentence upon him consistent with this agreement.” (Id. at 2.)
Paragraph eleven of the plea agreement stated that Petitioner understood
that by pleading guilty he was giving up “[his] right to remain silent, [his]
privilege against self-incrimination, [and] presumption of innocence.” (Id.)
On August 29, 2011, the court held a change-of-plea hearing. (Doc.
17, Ex. E.) At the outset of the hearing, the court asked Petitioner’s counsel
whether he had any reason to believe that Petitioner was not competent to
enter a guilty plea. (Id. at 4.) Defense counsel responded “no,” and stated
that Petitioner was “an intelligent young man.” (Id.) In response to the
court’s questions, Petitioner confirmed that he had not taken any
medication, consumed any alcohol, or used any drugs that interfered with
his ability to understand the proceedings. (Id.) He stated that he had
discussed the plea agreement with counsel before signing it, that he
initialed each paragraph of plea agreement, that he understood the plea
agreement, that no promises had been made to him other than those
contained in the plea agreement, and that he was not forced or threatened to
enter the plea agreement. (Id. at 5-6, 12.) He also stated that counsel had
answered his questions about the plea agreement and that counsel had done
“an excellent job.” (Id. at 5-6.)
The court recited the charge to which Petitioner was pleading guilty,
advised Petitioner of his sentencing exposure, and of the constitutional
rights and appeal rights he was waiving by pleading guilty. (Id. at 7-8, 1012.) The court also explained that Petitioner faced a sentence of twenty-five
years to life imprisonment and that he would serve “every day” of that
sentence and that he was not eligible for any early release. (Id. at 8-9.)
Petitioner affirmed that he understood the charge and his potential sentence
and that he agreed to waive his rights and plead guilty. (Id. at 7-8, 12.)
Petitioner’s counsel provided a factual basis for the guilty plea and
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Petitioner affirmed that he had committed the acts contained in the factual
basis. (Id. at 12-14.) The trial court found that Petitioner entered the guilty
plea knowingly, intelligently, and voluntarily and accepted the guilty plea.
(Id. at 14.)
The trial court held a sentencing hearing on October 14, 2011. (Doc.
17, Exs. G, H.) During the sentencing hearing, defense counsel advised the
court that Petitioner had no prior criminal record, he had earned his GED,
and that, before the incident giving rise to his conviction, “he was in
college” and had earned “two A’s and two B’s in his semester.” (Doc. 17,
Ex. G. at 20.) Counsel also stated that Petitioner was “intelligent.” (Id. at
20.) The court sentenced Petitioner to twenty-five years to life
imprisonment, in accordance with the plea agreement. (Id. at 25; Doc. 17,
Ex. H.) The court also ordered Petitioner to pay $5,763.94 in restitution.
(Doc. 17, Ex. G. at 25.)
B. Post-Conviction Proceeding
On December 29, 2011, Petitioner filed a notice of post-conviction
relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure.
(Doc. 17, Ex. I.) On January 9, 2012, the court appointed the Office of the
Legal Advocate to represent Petitioner and ordered transcripts. (Doc. 17,
Ex. J.) The Office of Legal the Advocate moved to withdraw based on a
conflict and, on February 27, 2012, the court appointed Robert Gaffney as
counsel for Petitioner. (Doc. 17, Exs. K, L.) On May 29, 2012, Petitioner’s
counsel filed a notice of completion of post-conviction review and advised
the court that he was “unable to find a meritorious issue, including a claim
of ineffective assistance of counsel, to justify the filing of a Petition in this
matter.” (Doc. 17, Ex. M.) The court granted Petitioner forty-five days to
file a pro se petition for post-conviction relief. (Doc. 17, Ex. N.) Petitioner
filed a petition for post-conviction relief on August 23, 2012. (Doc. 17,
Exs. O, P, Q.)
In his petition, Petitioner asserted that trial counsel was ineffective
because counsel lied to him after he refused to sign a plea agreement that
provided for a sentence of twenty-five years to life imprisonment. (Doc. 17,
Ex. Q.) Petitioner argued that trial counsel told him and his family members
that he would only serve fifteen years’ imprisonment because he would
only have to serve eighty-five percent of his sentence. (Id.) He asserted that
trial counsel told him that his plea agreement was more favorable than his
co-defendant’s plea agreement. (Id.) Petitioner asked the post-conviction
court to correct his sentence. (Id.)
The State responded to the petition and argued that Petitioner failed
to assert a colorable claim for ineffective assistance of counsel. (Doc. 17,
Ex. R at 6) The State noted that Petitioner had not included an affidavit
from trial counsel or any witness who knew about the alleged “secret deal”
regarding his sentence under the plea agreement. (Id.) The State also noted
that Petitioner’s claims contradicted the statements he made during the
change-of-plea hearing, including his statement that no promises had been
made to him other than the promises contained in the plea agreement, and
the trial court’s statement that Petitioner would serve twenty-five calendar
years and would not be eligible for early release after serving only eightyfive percent of his sentence. (Id. at 6-7.)
Petitioner replied to the State’s response and requested an
evidentiary hearing. (Doc. 17, Ex. S.) In his reply, he reiterated that trial
counsel told him he would only have to serve eighty-five percent of his
sentence. (Id.) Petitioner attached an affidavit from his aunt stating that
Petitioner’s trial counsel had told her that he would not get a life sentence
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and that he would be eligible for parole. (Id.)
On November 27, 2012, the trial court denied Petitioner’s request for
an evidentiary hearing and dismissed the petition for post-conviction relief.
(Doc. 17, Ex. T.) The court found that Petitioner’s allegations regarding
trial counsel’s statements to him “were in direct conflict with what
[Petitioner] himself said at the change of plea proceeding.” (Id. at 2.) The
court also found that Petitioner’s allegations were “not supported by any
independent verification or any supporting affidavit as required by Rule
32.5 [of the] Arizona Rules of Criminal Procedure.” (Id.) The court further
found that “[b]ecause there is no credible evidence of a secret deal, and
[Petitioner] himself stated that he understood the sentence he now
complains of, the Court does not believe that [Petitioner] can establish that
his attorney was ineffective.” (Id.) Petitioner did not petition the Arizona
Court of Appeals for review of the denial of his petition for post conviction
relief. (Doc. 1 at 5.)

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Doc. 22 at 1-5.

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B.

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Petitioner made one claim in his Petition: that his confession/statements to the

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police were inadmissible, and thus tainted his plea negotiations. Doc. 22 at 5. The R&R

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concludes that due to Petitioner’s plea, this claim is not cognizable as a basis for federal

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habeas relief. Doc. 22 at 6-7. Alternatively, the R&R conclude that this claim is

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procedurally barred. Doc. 22 at 7-10.

Claim in the Federal Habeas Petition

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In his objections, Petitioner purports to be objecting to the R&R’s conclusion

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regarding his claim that his statements were illegally obtained. Doc. 26 at 1. However,

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in reality his objections are targeted to the issue he raised in his post-conviction relief

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petition in state court; specifically: that his attorney failed to explain to him the sentence

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he was facing under the plea agreement. Doc. 26 at 3.1 Petitioner makes no legal or

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factual argument in his objections regarding his statements and/or confession.

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Turning first to the claim raised in the Petition wherein Petitioner claims his

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statements were illegally obtained by law enforcement, the Court agrees with the R&R

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both that this claim is not cognizable on habeas as a result of Petitioner’s plea agreement,

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and alternatively that this claim is procedurally barred. Accordingly, the R&R will be

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One difference between the state court post-conviction relief proceedings and
the objections is that in the state court proceeding, Petitioner claims his counsel told him
he would serve 15 years, Doc. 22 at 4, but in his habeas Petition he claims his counsel
told him he would serve 20 years, Doc. 26 at 3.
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accepted and adopted as to this claim and relief will be denied.

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Regarding Petitioner’s “claim” raised in his objections (that counsel was

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ineffective for failing to advise him of the sentence he faced following the plea), the

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Court will construe the objections liberally as a request to amend his Petition to add a

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second claim. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). As discussed

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above, the claim was presented to the state court in Petitioner’s petition for post-

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conviction relief.

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Because this claim was exhausted before the state courts, under 28 U.S.C. §§

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2254(d)(1) and (2) this Court must deny relief on this claim unless the “state court

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decision [was] contrary to, or involved an unreasonable application of, clearly established

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Federal law” or was based on an unreasonable determination of the facts. See Lockyer v.

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Andrade, 538 U.S. 63, 71 (2003). Further, this Court must presume the correctness of the

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state court’s factual findings regarding a petitioner’s claims. 28 U.S.C. ' 2254(e)(1);

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Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998).

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This Court has reviewed the state court’s determination on post-conviction relief

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that Petitioner’s claim that his counsel did not advise him thoroughly is so contradicted

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by the record of the trial court at the change of plea hearing that the claim lacks

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credibility. This Court finds that the state court’s factual findings and legal conclusions

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are not contrary to nor an unreasonable application of federal law, nor did the state court

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unreasonably determine the facts.

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Accordingly, Petitioner, if allowed to amend his Petition, would not be entitled to

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relief on this claim. Thus, construing the objections liberally as a request for leave to

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amend to add this theory of ineffective assistance of counsel,2 the Court denies the

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request for leave to amend because it is futile.

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Pursuant to 28 U.S.C. § 2242, a habeas petition may be amended “as provided in
the rules of procedure applicable to civil actions.” Rule 15(a) allows a party to amend his
complaint by leave of the court, and such leave Ashall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). However, the Ninth Circuit Court of Appeals has found
that a district court was correct in denying leave to amend a habeas petition where
allowing the amendments would be futile. Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir.
1995).
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V.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that the motion to reopen (construed by this Court to be part of

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Doc. 26) is granted; accordingly, this Court’s prior Order and Judgment dismissing this

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case (Docs. 23 and 24) are vacated.

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IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 22) is

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accepted and adopted; the objections are overruled (Doc. 26); to the extent the Court

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construed the objections as seeking leave to amend, leave to amend is denied;

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accordingly, the Clerk of the Court shall enter judgment denying and dismissing the

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Petition, with prejudice.

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IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing

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Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a

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certificate of appealability because Petitioner has not made a substantial showing of the

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denial of a constitutional right. See 28 U.S.C. ' 2253(c)(2).

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Dated this 4th day of June, 2015.

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