Valdez v. Ryan et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge Michelle Burns' R&R 11 is accepted. Petitioner's petition for writ of habeas corpus 1 is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). The Clerk shall terminate this action. Signed by Judge David G Campbell on 7/31/2015. (ACL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Benjamin Mercado Valdez,
Petitioner,

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ORDER

v.

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No. CV-14-01419-PHX-DGC

Charles L. Ryan, et al.,

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Respondents.

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Petitioner Benjamin Valdez was indicted on seven counts of theft for stealing a

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vehicle and stripping it of its equipment. In July 2009, Valdez was offered a deal to

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plead guilty in exchange for a 10-year prison sentence. The deal was later reduced to a

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sentence of 7-8 years. At a settlement conference in September 2009, the trial court

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discussed the proposed agreement with Valdez and communicated to him that he faced a

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potential sentence of 175 years. Valdez stated that 7-8 years was still a “very long

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sentence” and asked the prosecutor to “lower it a little bit more.” After the prosecutor

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refused, Valdez rejected the offer and indicated that he preferred to go to trial.

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At a trial management conference on September 24, the prosecutor again offered

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the deal to Valdez. Valdez signed the plea deal, but later refused to enter into the

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agreement in open court because he wanted a better offer. The prosecution gave Valdez

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until the end of the day to accept the offer should he change his mind, but Valdez

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ultimately chose not to accept the deal.

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On October 1, Valdez pled guilty to all seven counts. The trial court informed

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Valdez that no plea offer was on the table and that he would receive a sentence on all

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seven counts. Valdez confirmed his understanding of this to the court, waived his right to

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trial, and pled guilty to seven counts of theft. He received seven concurrent 15-year

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sentences.

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On December 9, Valdez filed petition for post-conviction relief arguing that

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defense counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984).

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The trial court held an evidentiary hearing in which Valdez, defense counsel, and the

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prosecutor testified. After considering the evidence, the trial court denied the petition.

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The Arizona Court of Appeals affirmed. Valdez then filed a petition for habeas corpus

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pursuant to 28 U.S.C. § 2254 alleging a violation of his Sixth Amendment rights.

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Magistrate Judge Michelle Burns issued an R&R recommending the Court deny Valdez’s

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petition. Valdez filed objections to the R&R. The State did not respond.

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I.

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Legal Standard.
The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge in a habeas case.

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§ 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to

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which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v.

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Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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II.

See 28 U.S.C.

Analysis.

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Valdez’s objections reiterate the same arguments he raised in his § 2254 petition.

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He asserts counsel’s performance was deficient because he failed to conduct a “risk-

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benefit analysis” of the plea deals, setting out the specific statutes, affidavits, defenses,

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and an assessment of the strength of the prosecution’s case.

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“emotional ploy” to get him to accept the deal denied him the ability to make an informed

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legal decision about the benefits of accepting the deal.1

He asserts counsel’s

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To the extent Valdez generally objects to the R&R, the Court declines to review
those arguments. See Warling v. Ryan, No. CV 12-01396-PHX-DGC, 2013 WL
5276367, at *2 (D. Ariz. Sept. 19, 2013).
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In the R&R, Judge Burns found the state courts did not apply Strickland to the

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facts of Valdez’s case in an objectively unreasonable manner. Doc. 11 at 10. As both the

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trial and appellate courts noted, defense counsel did discuss the terms of the plea

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agreement with Valdez. Doc. 8-2 at 111-13. The trial court found Valdez’s testimony

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that defense counsel “abandoned him after he signed it” incredible in light of the

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testimony from defense counsel and the prosecutor and the court’s own observations. Id.

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at 142. Valdez also failed to establish Strickland prejudice because he rejected the

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agreement several times after being fully informed (by both defense counsel and the trial

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court) of the potential consequences.

Doc. 11 at 9.

Judge Burns found Valdez’s

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“unsupported and self-serving declaration stating that he wanted to have the proposed

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agreement accepted by the trial court on the record [was] directly contradicted” by the

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evidence. Id.

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The Court agrees that Valdez has failed to show a deficient performance and

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prejudice under Strickland. As Judge Burns noted, the record clearly indicates that

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counsel reviewed the plea deal with Valdez and urged him to accept it. Valdez refused

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repeatedly to accept the favorable plea agreement despite encouragement from his

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counsel. Valdez does not dispute that counsel advised him to accept the deal. Valdez’s

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argument appears to be that counsel should have done a better job of presenting the plea

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deal to him, but the precise manner in which counsel presents a plea offer is not

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prescribed by Strickland. “[D]efense counsel has the duty to communicate formal offers

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from the prosecution to accept a plea on terms and conditions that may be favorable to

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the accused.” Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012). There is no requirement

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that counsel present a risk-benefit analysis as Valdez claims.

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communicate the terms of the offer, advise the client on whether to accept, and identify

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the date on which it will expire in order to satisfy Strickland. See id. Defense counsel

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took these steps, and the Court finds no Strickland violation.

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IT IS ORDERED:

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1.

Counsel need only

Magistrate Judge Michelle Burns’ R&R (Doc. 11) is accepted.

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Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied.

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A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Petitioner has not made a substantial showing of

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the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).

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4.

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Dated this 31st day of July, 2015.

The Clerk shall terminate this action.

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