Pacheco v. Ryan et al

Filing 12

ORDER ACCEPTING 10 REPORT AND RECOMMENDATION. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED. The Clerk shall enter judgment denying and dismissing Petitioner's petition for writ of habeas corpus (Doc. 1 ) with prejudice, and shall terminate this action. Signed by Judge Douglas L Rayes on 05/24/2017. (KAS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Felipe Barrera Pacheco,

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Petitioner,

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ORDER

v.

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No. CV-16-02072-PHX-DLR (MHB)

Charles Ryan; and the Attorney General of
the State of Arizona,

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Respondents.

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Petitioner Felipe Pacheco pled guilty in state court to one count of child

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molestation and two counts of attempted child molestation. He presently is confined in

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the Arizona State Prison Complex-Florence serving his seventeen-year sentence. Before

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the Court are his petition for writ of habeas corpus (Doc. 1) and the Report and

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Recommendation (R&R) of Magistrate Judge Michelle H. Burns recommending that the

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petition be denied (Doc. 10). Petitioner has filed an objection to the R&R. (Doc. 11.)

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The Court has reviewed the R&R de novo and considered the objections. See Fed.

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R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo

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determination of those portions of the R&R to which specific objections are made). The

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Court agrees with the Magistrate Judge’s determinations, accepts the recommended

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decision within the meaning of Rule 72(b), and overrules Petitioner’s objections.

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Petitioner asserts four grounds for relief in his petition: (1) he received ineffective

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assistance of counsel when his trial counsel failed to move to suppress Petitioner’s

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statement made in a confrontation call, (2) he received ineffective assistance of counsel

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when his trial counsel failed to challenge Petitioner’s arrest based on the confrontation

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call, (3) he received ineffective assistance of counsel when his trial counsel failed to

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investigate medical evidence and move to have DNA tests conducted on objects at

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Petitioner’s home and clothing of the victim, and (4) his Fourteenth Amendment rights

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were violated by the Court of Appeals’ refusal to exercise their discretionary review.

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(Doc. 1 at 6-9.) The Magistrate Judge correctly found that the claims of ineffective

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assistance of counsel asserted in the first three grounds for relief are barred by

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Petitioner’s guilty plea. (Doc. 10 at 3-6.) None of the claims attacks the knowing,

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voluntary, or intelligent nature of his plea. The Court also agrees with the Magistrate

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Judge’s conclusion that ground four fails to state a cognizable federal claim because it

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challenges state court decisions made under state law. (Id. at 6.)

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Petitioner does not challenge these rulings in his objection. Rather, he alleges that

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his trial attorney was ineffective because she failed to adequately explain the plea deal to

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him and did not use a Spanish interpreter. (Doc. 11.) But Petitioner failed to raise this

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issue in his petition. He therefore is “procedurally barred from raising the issue and

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cannot now do so as disguised objections to the R&R.” Santo-Silvas v. Ryan, No. CV-

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12-00171-TUC-JGZ (LAB), 2013 WL 5780818, at *1 (Oct. 25, 2013); see Cacoperdo v.

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Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).1

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Petitioner raised the issue in the state court proceedings, but the Arizona Court of
Appeals denied relief in part because a certified Spanish interpreter was present during
the change of plea hearing and Petitioner affirmatively stated that the signed plea
agreement (Doc. 8-1 at 45-48) had been read and explained to him in Spanish. State v.
Pachecho, No. 2 CA-CR 2012-0509-PR, 2013 WL 1581617 (Ct. App. Apr. 15, 2013);
Doc. 8-1 at 3-4.
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IT IS ORDERED that the Magistrate Judge’s R&R (Doc.10) is ACCEPTED and

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a Certificate of Appealability and leave to proceed in forma pauperis on appeal are

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DENIED. The Clerk shall enter judgment denying and dismissing Petitioner’s petition

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for writ of habeas corpus (Doc. 1) with prejudice, and shall terminate this action.

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Dated this 24th day of May, 2017.

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Douglas L. Rayes
United States District Judge

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