Otero v. Ryan et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 10 ) is accepted and adopted by the Court. 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. A Certificate of Appealability shall not issue and leave to proceed in forma pauperis on appeal is denied because the petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 4/6/17. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Botello Otero,
Petitioner,

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vs.
Charles L. Ryan, et al.,
Respondents.

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No. CV-16-00733-PHX-PGR (MHB)
ORDER

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Having reviewed de novo the Report and Recommendation of Magistrate

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Judge Burns in light of the petitioner’s Response and Objections to the Magistrate

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Judge’s Report and Recommendations (Doc. 11) and the respondents’ Response

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to Petitioner Otero’s Objections to the Magistrate Judge’s Report and

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Recommendation (Doc. 12), the Court finds that the petitioner’s objections should

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be overruled because the Magistrate Judge correctly concluded that the petitioner’s

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habeas petition, filed pursuant to 28 U.S.C. § 2254, should be denied.

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The petitioner pleaded guilty to one count of first degree murder and one

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count of abandonment or concealment of a dead body. In Ground One of his

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habeas petition, the petitioner alleges that his Fifth and Sixth Amendment rights

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were violated during his grand jury proceedings. In Ground Two, he alleges that his

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Sixth Amendment right was violated because he was denied effective assistance of

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counsel during his grand jury proceedings. In Ground Three, he alleges that his Fifth

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Amendment rights were violated when his involuntary and incriminating statements

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were not suppressed. In Ground Four, he alleges that his counsel was ineffective for

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filing to file a motion to suppress. In Ground Six, in what is in effect a combination

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of his Grounds Two And Four, he alleges that his plea agreement violated his Fifth

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and Sixth Amendment rights because his counsel was ineffective throughout the

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case and his counsel’s advice to plead guilty was unreasonable.

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The Court agrees with the Magistrate Judge that Grounds One through Four

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and Ground Six are barred by the petitioner’s guilty plea pursuant to Tollett v.

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Henderson, 411 U.S. 258 (1973), because they are all pre-plea constitutional claims

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that are not based on a jurisdictional defect.

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In Ground Five, the petitioner alleges that his counsel was ineffective, in

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violation of his Sixth Amendment right, for failing to object to the state’s

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unreasonable characterization of the petitioner at his sentencing. The Court agrees

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with the Magistrate Judge that this claim fails on its merits. The state PCR court’s

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conclusion that this claim was meritless because the sentencing transcript belied the

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plaintiff’s assertion, which conclusion the Arizona Court of Appeals adopted as its

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own, was neither contrary to, or an unreasonable application of, clearly established

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Supreme Court precedent, nor did it involve an unreasonable determination of the

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relevant facts in light of the state court record. Therefore,

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc. 10) 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 leave to proceed in forma pauperis on appeal is denied because the petitioner

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has not made a substantial showing of the denial of a constitutional right.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 6th day of April, 2017.

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