Pacheco #112692 v. Ryan et al

Filing 40

ORDER - Petitioner's Supplemental Notice of Motion for Issuance of Writ due to noncompliance (Doc. 36 ) and Motion to Strike State's Response (Doc. 39 ) are denied. Signed by Senior Judge David G Campbell on 6/21/19. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Isidro Pacheco,
Petitioner,

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ORDER

v.

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No. CV-15-02264-PHX-DGC

Charles L Ryan, et al.,

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Respondents.

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On February 6, 2019, Petitioner Isidrio Pacheco filed a supplemental notice of

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motion for issuance of writ due to non-compliance with this Court’s December 22, 2016

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order conditionally granting Petitioner’s writ of habeas corpus. Doc. 36. The State filed a

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response, which Petitioner moves to strike as untimely. Docs. 38, 39. Petitioner did not

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file a reply. For the reasons that follow, the Court will deny Petitioner’s motions.

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I.

Background.

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Petitioner pled guilty to charges of child molestation and sexual conduct with a

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minor and was sentenced to 17 years. Doc. 35 at 1. Petitioner filed an of-right post-

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conviction relief (“PCR”) petition, and his counsel filed a notice of no colorable claims.

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Id. at 1-2. Petitioner then filed a pro per petition, asserting ineffective assistance of counsel

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and sentencing error. Id. His petition was denied. Id.

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In November 2015, Petitioner filed a petition for writ of habeas corpus with this

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Court, asserting four grounds. Doc. 1. The first three, which the Court denied, alleged

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ineffective assistance of counsel. Doc. 19 at 6. The fourth ground alleged that Petitioner

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was entitled to a “fundamental error” review of the record under Anders v. California, 386

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U.S. 738 (1967), because his of-right PCR proceeding was the equivalent of a direct appeal.

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Id.

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On December 22, 2016, this Court conditionally granted Petitioner’s writ of habeas

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and ordered that Petitioner be permitted to file a new of-right Rule 32 PCR proceeding,

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including the filing of a brief by counsel and independent review of the record consistent

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with Anders. Doc. 26 at 18. If the state failed to comply within 90 days, Petitioner would

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be released. Id. Petitioner’s case was subsequently terminated.

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On January 3, 2017, Petitioner filed his second notice for PCR in the superior court

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and was appointed counsel. Doc. 32 at 7. Counsel filed a new of-right Rule 32 petition on

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January 29, 2018. Id. The petition alleged a significant change of law because Arizona’s

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child molestation statute was found unconstitutional in May v. Ryan, 245 F. Supp. 3d 1145,

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1158 (D. Ariz. 2017). Id. The petition also alleged ineffective assistance of counsel

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because Petitioner’s original trial counsel should have interviewed Petitioner’s alibi

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witness, moved to suppress his confession, and presented mitigation evidence. Id. at 8-12.

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Further, the petition alleged that the trial court failed to inform Petitioner of the sentence

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enhancement under Arizona’s Dangerous Crimes Against Children Act (“DCACA”),

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rendering his guilty plea invalid. Doc. 32 at 12-6. Finally, the petition alleged that the

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DCACA sentencing scheme is unconstitutional because it enhances a sentence based on

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facts found by a judge instead of facts found by a jury beyond a reasonable doubt. Doc. 32

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at 16.

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On June 11, 2018, the superior court denied the Rule 32 petition, finding that “all

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matters contained in the Petition for Post-Conviction Relief are precluded as having been

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previously ruled upon or untimely filed[,] or the Petition lacks sufficient basis in law and

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fact to warrant further proceedings herein and no useful purpose would be served by further

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proceedings.” Doc. 32 at 50. Petitioner then filed his first motion for issuance of a writ

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due to non-compliance in this Court, arguing that the superior court’s decision did not
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satisfy the Court’s order for a new of-right PCR proceeding. Doc. 32. Petitioner argued

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that the superior court did not afford him a new Rule 32 proceeding because it found the

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issues raised to be precluded or untimely, which meant that it “treated the appeal as a

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successive action limiting the scope of [appealable] issues.” Doc. 32 at 2.

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The state filed a request for clarification in the superior court (see Doc. 34 at 5-6),

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and that court issued supplemental findings of fact and conclusions of law on July 12, 2018.

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See Doc. 33-1at 2. The order supplemented the court’s June 11, 2018 order “after fully

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considering [Petitioner’s petition] on its merits.” Doc. 34 at 18. The supplemental order

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addressed each of Petitioner’s arguments on the merits and affirmed the denial of post-

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conviction relief. After this clarification, Petitioner filed a reply in support of his motion.

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His reply argued that the superior court’s supplemental order did not comply with the

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Court’s conditional grant of habeas relief because it essentially copied verbatim the state’s

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response to the PCR court. Doc. 34 at 2.

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On October 9, 2018, this Court denied Petitioner’s first motion for issuance of writ

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due to non-compliance, finding that the subsequent of-right PCR proceeding satisfied the

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Court’s conditional grant of habeas relief because Petitioner was appointed counsel,

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counsel filed a merits brief, and Petitioner therefore was no longer entitled to an Anders

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review by the trial court. Doc. 35 at 6. The Court noted that to the extent Petitioner

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disagreed with the substantive accuracy of the trial court’s decision, he needed to first

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exhaust his state remedies before initiating a federal court review. Id. at 7. The Arizona

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Court of Appeals has since affirmed the trial court’s denial of Petitioner’s subsequent PCR

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petition. See Doc. 36 at 1; State v. Pacheco, No. 2 CA-CR 2018-0269-PR, 2019 WL

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324930 (Ariz. Ct. App. Jan. 23, 2019).

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II.

Petitioner’s Second Motion for Issuance of a Writ Due to Non-Compliance.

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Petitioner’s current motion asks the Court to determine whether the superior court

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“in fact addressed the substantive nature of [his] claims or merely took action giving an

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appearance of a new Rule 32 proceeding.” Doc. 36 at 2. But the Court already determined

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that the superior court appropriately addressed the merits of Petitioner’s claims in the
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October 9 order. Doc. 35 at 6. Plaintiff’s remaining arguments go to the merits of the

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claims he brought in his second PCR proceedings. These claims are not before this Court.

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Following the issuance of a conditional habeas writ, the Court maintains jurisdiction

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only to review the state’s compliance with its conditional order. See Leonardo v. Crawford,

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646 F.3d 1157, 1161 (9th Cir. 2011). Here the Court’s conditional grant of habeas relief

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required: (1) a new of-right Rule 32 proceeding, (2) with briefing, and (3) a review of the

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record consistent with Anders. Doc. 26 at 18. The Court determined that the superior court

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complied with these requirements. Doc. 35 at 6. The state therefore has satisfied its

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obligation, and the Court cannot “address new arguments under the ambit of ensuring

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compliance with the earlier order.” See Leonardo, 646 F.3d at 1161. The language

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Petitioner highlights from the Court’s October 9 order – that the Court would address the

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substantive accuracy of the state court’s supplemental order only after Petitioner has

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exhausted his state remedies – refers to a successive or new habeas petition to challenge

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the accuracy of the subsequent PCR ruling, not to continuing review in this case.

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Petitioner also renews his argument that the superior court did not properly afford

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him a new of-right proceeding because its June 11, 2018 order summarily dismissed his

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issues without considering their merits, and the superior court’s supplemental order

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parroted the state’s briefing and was issued only in response to Petitioner’s filing of a non-

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compliance order in this Court. Doc. 36 at 2. The Court has already considered and

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rejected these arguments. See Doc. 35 at 6-7. Petitioner also argues that the Arizona Court

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of Appeals summarily dismissed his claims without addressing the merits, and he therefore

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was not afforded an adequate of-right PCR. See Doc. 36 at 4. But the Court of Appeals

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can properly adopt the superior court’s ruling in a summary order if it agrees with the

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reasoning and outcome and such orders will “not complicate further review in state or

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federal court.” State v. Whipple, 866 P.2d 1358, 1359-60 (Ariz. Ct. App. 1993); see also

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Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state

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judgment rejecting a federal claim, later, unexplained orders upholding that judgment or

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rejecting the same claim rest upon the same ground.”).
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III.

Petitioner’s Motion to Strike.

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Petitioner objects to the state’s response brief as untimely. Doc. 39. On March 15,

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the Court ordered a response brief by March 29. Doc. 37. The state filed its response on

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April 3. Doc. 38. The state asserted that it was unaware of the Court’s order until April 3,

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“having received the mailed order after being out of the office due to illness.” Id. at 1 n.1.

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The order was docketed on March 15 and notice of electronic filing was sent via ECF to

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three separate state e-mails. See Doc. 39 at 2-3. The state does not address why counsel

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did not receive this electronic notification of the Court’s order. Regardless, because the

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state has offered some explanation, Petitioner does not seem prejudiced by this motion, and

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the motion was filed within a few days of the deadline, the Court finds good cause to

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consider the motion and will not deny it as untimely

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IT IS ORDERED:

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1.

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Petitioner’s supplemental notice of motion for issuance of writ due to non-

compliance (Doc. 36) is denied.

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2.

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Dated this 21st day of June, 2019.

Petitioners’ motion to strike state’s response (Doc. 39) is denied.

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