Charran v. Ryan et al

Filing 23

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 18 - IT IS FURTHER ORDERED that the petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is denied and that this action is dismissed with prejudice. IT IS FURTHER ORDERED that a certificate of appealability shall not issue and that the petitioner may not appeal in forma pauperis because the dismissal of the petition is justified by a plain procedural bar and reasonable jurists w ould not find the procedural ruling debatable, and because the petitioner has not made a substantial showing of the denial of a constitutional right. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. (See document for further details). Signed by Senior Judge Paul G Rosenblatt on 11/16/15. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anil N. Charran,
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Petitioner,
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vs.
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Charles L. Ryan, et al.,
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Respondents.
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No. CV-14-00153-PHX-PGR (DKD)
ORDER

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Having considered de novo the Report and Recommendation of Magistrate

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Judge Duncan in light of the petitioner’s Objection to Report and Recommendation

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(Doc. 21) and the respondents’ Response to Objections to Report and

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Recommendation (Doc. 22), the Court finds that the petitioner’s objections should

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be overruled as meritless because the Court concludes that the Magistrate Judge

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correctly determined that the petitioner’s habeas corpus petition, timely filed

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pursuant to 28 U.S.C. § 2254, should be denied in its entirety.

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The petitioner, who is serving concurrent sentences of 11.25 years for two

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convictions of second-degree burglary, filed a § 2254 petition which contains seven

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arguments set forth in four grounds.1 The Magistrate Judge determined that the

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petitioner had procedurally defaulted on five of his claims by failing to exhaust his

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state remedies as to them (claims 1,2,3,4 and 6) and that he had not shown either

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cause or prejudice or a miscarriage of justice to excuse those defaults, and that the

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petitioner’s other two claims (claims 5 and 7) failed on their merits.

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In his Objection, the petitioner does not argue that the Magistrate Judge erred

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in determining that the two exhausted claims were meritless and the Court accepts

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the Magistrate Judge’s reasoning as to claims 5 and 7. See Thomas v. Arn, 474 U.S.

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140, 149 (1985) (Supreme Court noted that a district court, in reviewing a report and

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recommendation, is not required to conduct “any review at all ... of any issue that is

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not the subject of an objection.”)

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What the petitioner does argue in his Objection, and does so for the very first

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time in this action, is that there is no procedural bar for his ineffective assistance

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claim due to the doctrine set forth by the Supreme Court in Martinez v. Ryan, 132

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S.Ct. 1309 (2012).

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objections are without merit.

The Court concludes that the petitioner’s Martinez-related

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First, absent extraordinary circumstances, which are not present here, a district

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court need not consider an argument raised for the first time in an objection to a

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report and recommendation. See Greenhow v. Secretary of Health and Human

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Services, 863 F.2d 633, 638 (9th Cir.1988) (overruled on other grounds) (“[A]llowing

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parties to fully litigate their case before the magistrate and, if unsuccessful, to change

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their strategy and present a different theory to the district court would frustrate the

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The Court accepts the seven-claim numbering approach adopted by the
respondents in their Limited Answer to Petition for Writ of Habeas Corpus (see p. 5
of Doc.11).
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purpose of the Magistrates Act. We do not believe that the Magistrates Act was

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intended to give litigants an opportunity to run one version of their case past the

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magistrate, then another past the district court.”); accord, Paterson-Leitch Co. v.

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Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir.

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1988) (“We hold categorically that an unsuccessful party is not entitled as of right to

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de novo review by the [district] judge of an argument never seasonably raised before

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the magistrate.”)

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Second, while it is not clear whether the petitioner’s Martinez argument is

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directed just at his first claim, which is his only ineffective assistance of counsel claim,

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or also at his other four unexhausted claims, the Court in any case concludes that

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Martinez does not excuse any of his procedural defaults. In Martinez, the Supreme

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Court established a “narrow exception” to its rule that state post-conviction review

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counsel’s ineffective assistance cannot serve as cause to excuse the procedural

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default of habeas claims by holding that “[i]nadequate assistance of counsel at initial-

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review collateral proceedings may establish cause for a prisoner’s procedural default

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of a claim of ineffective assistance at trial.”) 132 S.Ct. at 1315. The Martinez

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exception is limited to an underlying Sixth Amendment ineffective assistance claim

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and does not apply to any other claims of trial error. Pizzuto v. Ramirez, 783 F.3d

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1171, 1177 (9th Cir.2015) (“Permitting claims of trial error to be considered ineffective

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assistance of counsel claims because an effective attorney would have prevented or

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remedied that purported error would expand Martinez to include all potential errors,

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and make the limitations we stated [regarding the Martinez exception] nonsensical.”)

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The petitioner’s procedural defaults as to his claims 2,3,4, and 6 do not come within

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the purview of Martinez because they do not allege any ineffective assistance of

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counsel.

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The gist of the petitioner’s first claim is that his trial counsel was ineffective for

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failing to abide by the petitioner’s instructions to plead guilty, by failing to follow

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through with the offered plea agreement, and by failing to explain the plea to the

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petitioner. Under Martinez, in order for a habeas petitioner to establish cause for a

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procedural default of an ineffective assistance claim, he must demonstrate two

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things, one of which is “that the ineffective-assistance-of-trial-counsel claim is a

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substantial one, which is to say that the prisoner must demonstrate that the claim has

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some merit.” Martinez, 132 S.Ct. at 1318; accord, Trevino v. Thaler, 133 S.Ct. 1911,

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1918 (2013). The petitioner has not made such a showing because the state court

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record, as submitted with the respondents’ Limited Answer, clearly establishes that

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the petitioner’s ineffective assistance claim is wholly without factual support, and is

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thus insubstantial, inasmuch as the petitioner was twice offered a plea agreement

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and he knowingly twice rejected both offers. He specifically rejected the first offer in

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open court on May 14, 2010 after the trial court held a “Donald advisory hearing”

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wherein both the terms of the plea offer and the potential consequences of rejecting

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the offer were explained to him. (Exhibit D to Doc. 11-1).2 A court hearing on

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The transcript of the Donald hearing contains the following exchanges
between the court and the petitioner after the court explained to the petitioner that
he was looking at a maximum sentence of 54 years:

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THE COURT: And Ms. Gattuso [the prosecutor], can you tell me what the Plea
Agreement was for?
MS. GATTUSO: The offer was to Count 1, Burglary in the Second Degree, Class 3
felony with one prior felony conviction, with a stipulation to an aggravated term in the
Department of Corrections.
THE COURT: Okay. What that means, sir, was that under the Plea Agreement you
were looking at a term in prison from a day over 6-1/2 years to 16.25 years. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: And so that is a significant benefit to you then [sic] than, say, 54
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September 21, 2010 (Exhibit F to Doc. 11-1), wherein the petitioner’s request for a

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change of counsel was denied, establishes that the petitioner’s counsel obtained a

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second, more favorable, plea deal of nine years for the petitioner and the petitioner

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turned that deal down too. Therefore,
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation

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(Doc. 18) is accepted and adopted by the Court.

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IT IS FURTHER ORDERED that the petitioner’s Petition Under 28 U.S.C. §

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2254 for a Writ of Habeas Corpus by a Person in State Custody is denied and that

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this action is dismissed with prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability shall not issue

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and that the petitioner may not appeal in forma pauperis because the dismissal of the

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petition is justified by a plain procedural bar and reasonable jurists would not find the

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procedural ruling debatable, and because the petitioner has not made a substantial

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showing of the denial of a constitutional right.

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years. Do you understand that?
THE DEFENDANT: Yes.
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MS. WORKMAN (Defense counsel): Judge, Mr. Charran indicates he’s rejecting the
plea.
THE COURT: Is that correct, sir?
THE DEFENDANT: Yes.
THE COURT: The record will reflect I did conduct a Donald advisory hearing and the
defendant rejected the Plea Agreement. And I’m looking at him, and he does not
appear to be equivocal. So I’m making a finding you are knowingly, voluntarily, and
intelligently rejecting this plea.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 16th day of November, 2015.

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