Lewis v. Ryan et al

Filing 19

REPORT AND RECOMMENDATION - IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1 ) be DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. (See document for complete details). Signed by Magistrate Judge John Z Boyle on 3/6/18. (SLQ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Francisco Lewis, 10 Petitioner, 11 v. 12 No. CV-17-01982-PHX-DJH (JZB) REPORT AND RECOMMENDATION Charles Ryan, et al., 13 Respondents. 14 15 16 TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT 17 JUDGE: Petitioner James Francisco Lewis has filed a pro se Petition for Writ of Habeas 18 19 Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) 20 I. SUMMARY OF CONCLUSION. 21 Petitioner raises two grounds for relief in his timely Petition. Petitioner’s Fourth 22 Amendment claims in Ground One are waived as a result of his guilty pleas. The claims 23 are also not cognizable on habeas review. Petitioner’s claims in ground two allege 24 ineffective assistance of counsel, which are unexhausted and procedurally defaulted. 25 Petitioner did not show excuse from procedural default. Therefore, the Court will 26 recommend that the Petition be denied and dismissed with prejudice. 27 / 28 / 1 II. BACKGROUND. 2 a. 3 The Presentence Report includes a summary of the underlying facts of Petitioner’s 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Facts of the Crimes. crimes1: On August 1, 2015, Phoenix police officer B. Miller observed [Petitioner] driving on the I-17 freeway traveling at the speed of thirty-five miles per hour in a posted sixty-five miles per hour area and swerving back and forth over two lanes. . . . . . . Officer Miller noticed an odor acidic [sic] believed to be PCP. He also observed ashes on [Petitioner’s] chest and pants and noticed [Petitioner’s] speech was slurred and slow to react. After backup units arrived, [Petitioner] was asked to exit the vehicle for further investigation. [Petitioner] exited the vehicle extremely slow [sic] and used the vehicle for balance. Officer Miller immediately conducted a search on [Petitioner] and located [a] pill bottle in the front left pants pocket, which later tested positive for a small amount of methamphetamine . . . and several oxycodone pills. [Petitioner] was then given multiple field sobriety tests which he failed. . . . In order to determine whether the defendant was under mind altering drugs or alcohol he was asked to submit to a portable breathalyzer test, which resulted in a 0.00 alcohol concentration. While Officer Miller was questioning [Petitioner], Officer Mullen asked the passengers to exit the vehicle so he could begin searching it. . . Officer Mullen confiscated the cigarettes, [which] were later tested and found to be positive for PCP. . . (Doc. 13-1, Ex. K, at 1-2.) Testing revealed Petitioner was “under the influence of dis[so]ciative anesthetics and [Central Nervous System] stimulants.” (Doc. 13-1, Ex. A, at 4-5.) Petitioner also “had in [his] possession a small quantity of meth.” (Id.) b. Settlement Conference. On August 10, 2015, Petitioner was indicted on six counts. (Doc. 13-1, Ex. B, at 12-14.) On September 24, 2015, the prosecution filed an allegation that Petitioner had five prior felony convictions. (Doc. 13-1, Ex. D, at 19-21.) On February 9, 2016, Petitioner filed a motion to change counsel. (Doc. 1-1, at 30.) Petitioner alleged his attorney failed to argue Fourth Amendment and Arizona Rules of Criminal Procedure violations. (Doc. 1-1 at 32-35.) He also alleged he had “only 1 In Arizona, the factual basis for a guilty plea “may be ascertained from the record including presentence reports, preliminary hearing reports, admissions of the defendant, and from other sources.” State v. Varela, 587 P.2d 1173, 1175 (1978). -2- 1 talked to [his attorney] two times within the 6 months of him being on [Petitioner’s] 2 case.” (Id. at 3-4.) 3 On February 12, 2016, in the morning, a settlement conference was held that 4 concluded with the Petitioner agreeing to a plea offer. (Doc. 13-1, Ex. X, at 101.) During 5 the conference, defense counsel told the court that Petitioner “does have some issues that 6 he would like to address with respect to constitutionality issues regarding, let’s say for 7 instance, stops, searches, things of that nature.” (Doc. 13-1, Ex. X, at 114.) Petitioner 8 questioned why the police officer did not immediately pull him over after observing 9 Petitioner driving 35 miles per hour in a 65 mile-per-hour zone (id. at 116) and 10 “swerving” in the roadway (id. at 121). Petitioner questioned the legality of the searches 11 of his person and vehicle. (Id. at 124-127.) The prosecution advised the plea offer would 12 be available for one additional week. (Id. at 132.) Petitioner immediately advised that he 13 was willing to enter a plea that day. (Id. at 133.) The Petitioner stated: 14 15 16 17 18 That’s what I -- that’s what I was aiming for. You know, I -- I don’t want you to get it wrong or -- or -- or your, Your Honor. I’ve been trying to take responsibility and make a change in my life, I’ve been trying to take classes, I’ve got the proof for that, to show you. And if I could be frank and candid all at the same time, I don’t believe that I was arrested, I believe that I was rescued, you know? That would have been my first experience with methamphetamine and I think that it would have been a bad outcome, honestly. 19 (Doc. 13-1, Ex. X, at 133.) The court set the change of plea proceeding for the afternoon. 20 (Id. at 36.) 21 22 23 24 25 26 27 28 c. Plea and Sentencing. On February 12, 2016, in the afternoon, Petitioner returned to court to plead guilty pursuant to a plea agreement. (Doc. 13-1, Ex. Y, at 139.) Petitioner entered a plea agreement whereby Petitioner agreed to plead guilty to misdemeanor DUI (Count 3) and Possession of Dangerous Drugs, a class 4 felony (amended Count 4) with one prior felony conviction. (Doc. 13-1, Ex. J, at 38-40.) The prosecution agreed to dismiss the remaining counts and allegation of additional prior felony convictions. (Id. at 39.) On March 23, 2016, Petitioner was sentenced to three years of imprisonment for Count 4, and 30 months of probation for Count 3. (Doc. 13, Ex. N, at 64-65.) At the -3- 1 2 sentencing hearing, Petitioner said 4 Your Honor, on the night of August 1st, 2015, he was – when I was pulled over by the Phoenix Police Department, I just wanted them to make note that a lot of the stories in that report [are] definitely fabricated. But, nevertheless, nevertheless, I do realize that I have broke[n] the law. 5 (Doc. 13-1, Ex. Z. at 175.) “Nevertheless, as far as it goes, I’m truly very remorseful for 6 breaking the law. Rather it was a dime or a hundred dollars’ worth methamphetamine, 7 still against the law and I acknowledge that.” (Id. at 176-177.) 3 8 d. 9 On June 6, 2016, Petitioner filed a Notice of Post-Conviction Relief, claiming 10 ineffective assistance of counsel. (Doc. 13-1, Ex. O, at 72.) On November 28, 2016, 11 Petitioner’s counsel filed a Notice of Completion of Post-Conviction Review stating that 12 “counsel is unable to find any claims for relief to raise in post-conviction relief 13 proceedings” and requesting an extension of time for Petitioner to file a pro se Rule 32 14 petition. (Doc. 13-1, Ex. R, at 82.) On November 30, 2016, the court set January 13, 2017 15 as the deadline for Petitioner to file his Rule 32 petition. (Doc. 13-1, Ex. S, at 87.) Post-Conviction Relief Proceedings. 16 On January 17, 2017, Petitioner filed with the state court a request for counsel for 17 Post-Conviction Relief proceedings. (Doc. 13-1, Ex. U, at 92.) Petitioner argued he could 18 not afford an attorney, and that there were grounds for a petition for Post-Conviction 19 Relief yet he required the assistance of counsel. (Id.) Petitioner’s request was denied and 20 21 22 23 24 25 26 27 28 the time to file a “pro per petition” was extended to February 27, 2017. (Doc. 13-1, Ex. V, at 97.) On March 31, 2017, the court dismissed the Post-Conviction Relief proceedings because “[t]he due date has passed and the [Petitioner] has not filed a petition and has not secured any additional extensions from the Court.” (Doc. 13-1, Ex. W, at 99.) e. Habeas Petition. On June 22, 2017, Petitioner filed a Writ of Habeas Corpus in this Court. (Doc. 1.) “Petitioner raises two grounds for relief. In Ground One, he alleges that his Fourth Amendment rights were violated. In Ground Two, Petitioner alleges that he received ineffective assistance of counsel in violation of Sixth Amendment rights.” (Doc. 5 at 2.) -4- 1 On November 6, 2017, Respondent filed a Limited Answer to the Petition. (Doc. 13.) On 2 December 21, 2017, Petitioner filed a Reply. (Doc. 18.) 3 III. THE PETITION. 4 The writ of habeas corpus affords relief to persons in custody pursuant to the 5 judgment of a state court in violation of the Constitution, laws, or treaties of the United 6 States. 28 U.S.C. § § 2241 (c)(3), 2254(a). Petitions for Habeas Corpus are governed by 7 the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. 8 The Petition is timely. 9 IV. DISCUSSION. 10 a. 11 Ground One asserts a violation of Petitioner’s rights related to his traffic stop, and 12 at the securing of a warrant for Petitioner’s blood. (Doc. 1 at 4.) Petitioner claims that the 13 arresting officer: (1) observed Petitioner driving at 35 mph in a 65 mph zone, swerving 14 across two lanes, and causing a dangerous traffic slow down but did not attempt to stop 15 the car until about two miles later, (id.); (2) ordered Petitioner to step out of the car, 16 conducted a pat down for weapons, and pulled out a pill bottle and looked inside it 17 without first obtaining a warrant, (id. at 4-5); and (3) conducted a breathalyzer test that 18 resulted in no trace of alcohol, and then ordered Petitioner to do a field sobriety test 19 (id. at 5). 20 Ground One Claims. i. Waiver of claims pursuant to guilty plea. 21 Petitioner waived his right to bring the Ground One claims when he pleaded 22 guilty. (Doc. 13-1, Ex. Y, at 20.) An unconditional guilty plea “cures all antecedent 23 constitutional defects.” United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997). “When 24 a criminal defendant has solemnly admitted in open court that he is in fact guilty of the 25 offense with which he is charged, he may not thereafter raise independent claims relating 26 to the deprivation of constitutional rights that occurred prior to the entry of the guilty 27 plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). “He may only attack the voluntary 28 and intelligent character of the guilty plea.” Id. -5- 1 Here, the trial court found that “[Petitioner’s] plea is knowingly, intelligently, and 2 voluntarily made.” (Doc. 13-1, Ex. Y, at 162.) Petitioner does not argue otherwise, and 3 Petitioner’s plea colloquy reflects knowing, intelligent, and voluntary guilty pleas. (Id. at 4 142-163.) Petitioner’s Ground One claims are waived. See United States v. Caperell, 938 5 F.2d 975, 977 (9th Cir. 1991) (a guilty plea generally waives all claims of a constitutional 6 nature occurring before the plea); Haring v. Prosise, 462 U.S. 306, 321 (1983) (“[W]hen 7 a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that 8 conviction cannot be affected by an alleged Fourth Amendment violation because the 9 conviction does not rest in any way on the evidence that may have been improperly 10 seized.”); Ortberg v. Moody, 961 F.2d 135, 136–38 (9th Cir. 1992) (petitioner’s guilty 11 plea barred habeas consideration of claims, which included claim of an unlawful search). 12 ii. Petitioner’s claims are not cognizable. 13 Petitioner’s Ground One claims are also not cognizable. A Fourth Amendment 14 claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair 15 opportunity to litigate the claim in state court. Under Stone v. Powell, 428 U.S. 465, 481 16 (1976), “where the State has provided an opportunity for full and fair litigation of a 17 Fourth Amendment claim,” federal habeas corpus relief will not lie for a claim that 18 evidence recovered through an illegal search or seizure, even if that evidence was 19 introduced at trial. 20 Here, Petitioner had the opportunity to litigate his Fourth Amendment issues, both 21 in the trial court and on post-conviction review. (Doc. 13-1, Ex. X, at 133 (settlement 22 conference at which Petitioner agreed to take the plea bargain); Ex. P, at 76-77 (Initiation 23 of Rule 32 Proceeding Following a Plea).) Petitioner did not litigate his claims in the trial 24 court, and instead pleaded guilty. The State dismissed Counts 1, 2, 5, and 6, and the 25 allegation of Petitioner’s prior felony convictions (Doc. 13, Ex. N, at 68), and Petitioner’s 26 plea offered him the opportunity of a probation sentence for Count 3 (Doc. 13, Ex. J, 27 at 38). Petitioner received a three-year sentence of imprisonment for Count 4, and for 28 Count 3 a 30-month consecutive sentence of probation. (Doc. 13, Ex. N, at 64-66.) -6- 1 Petitioner did not contest his sentence in post-conviction review because Petitioner did 2 not file a PCR petition after his request for a second PCR counsel was denied. (Doc. 13, 3 Ex. W., at 99.) Petitioner had an opportunity for a full and fair litigation of his Fourth 4 Amendment claim. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (“The 5 relevant inquiry is whether petitioner had the opportunity to litigate his claim, not 6 whether he did, in fact, do so, or even whether the claim was correctly decided.”) 7 (citations omitted). 8 Petitioner’s claims in Ground One are not cognizable on habeas review. 9 b. Ground Two Claims. 10 Ground Two asserts ineffective assistance of counsel leading up to the plea 11 agreement. (Doc. 1 at 7.) For the reasons explained below, Petitioner’s Ground Two 12 claims are unexhausted and procedurally defaulted. Ordinarily, a federal court may not 13 grant a petition for writ of habeas corpus unless a petitioner has exhausted available state 14 remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the 15 state courts the opportunity to rule upon the merits of his federal claims by “fairly 16 presenting” them to the state’s “highest” court in a procedurally appropriate manner. 17 Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[t]o provide the State with the necessary 18 ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state 19 court . . . thereby alerting that court to the federal nature of the claim”). 20 A claim has been fairly presented if the petitioner has described both the operative 21 facts and the federal legal theory on which his claim is based. See Baldwin, 541 U.S. at 22 33. A “state prisoner does not ‘fairly present’ a claim to a state court if that court must 23 read beyond a petition or brief . . . that does not alert it to the presence of a federal claim 24 in order to find material, such as a lower court opinion in the case, that does so.” Id. 25 at 31-32. Thus, “a petitioner fairly and fully presents a claim to the state court for 26 purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the 27 proper forum . . . (2) through the proper vehicle, . . . and (3) by providing the proper 28 -7- 1 factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th 2 Cir. 2005) (internal citations omitted). 3 The requirement that a petitioner exhaust available state court remedies promotes 4 comity by ensuring that the state courts have the first opportunity to address alleged 5 violations of a state prisoner’s federal rights. See Duncan v. Walker, 533 U.S. 167, 178 6 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also 7 require federal courts to respect state procedural bars to review of a habeas petitioner’s 8 claims. See Coleman, 501 U.S. at 731-32. Pursuant to these principles, a habeas 9 petitioner’s claims may be precluded from federal review in two situations. 10 First, a claim may be procedurally defaulted and barred from federal habeas 11 corpus review when a petitioner failed to present his federal claims to the state court, but 12 returning to state court would be “futile” because the state court’s procedural rules, such 13 as waiver or preclusion, would bar consideration of the previously unraised claims. See 14 Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th 15 Cir. 2002). If no state remedies are currently available, a claim is technically exhausted, 16 but procedurally defaulted. Coleman, 501 U.S. at 735 n.1. 17 Second, a claim may be procedurally barred when a petitioner raised a claim in 18 state court, but the state court found the claim barred on state procedural grounds. See 19 Beard v. Kindler, 558 U.S. 53, 59 (2009). “[A] habeas petitioner who has failed to meet 20 the State’s procedural requirements for presenting his federal claim has deprived the state 21 courts of an opportunity to address those claims in the first instance.” Coleman, 501 U.S. 22 at 731-32. In this situation, federal habeas corpus review is precluded if the state court 23 opinion relies “on a state-law ground that is both ‘independent’ of the merits of the 24 federal claim and an ‘adequate’ basis for the court’s decision.” Harris v. Reed, 489 U.S. 25 255, 260 (1989). 26 A procedurally defaulted claim may not be barred from federal review, however, 27 “if the petitioner can demonstrate either (1) ‘cause for the default and actual prejudice as 28 a result of the alleged violation of federal law,’ or (2) ‘that failure to consider the claims -8- 1 will result in a fundamental miscarriage of justice.’” Jones v. Ryan, 691 F.3d 1093, 1101 2 (9th Cir. 2012) (quoting Coleman, 501 U.S. at 732). See also Boyd v. Thompson, 147 3 F.3d 1124, 1126-27 (9th Cir. 1998) (the cause and prejudice standard applies to pro se 4 petitioners as well as to those represented by counsel). To establish “cause,” a petitioner 5 must establish that some objective factor external to the defense impeded his efforts to 6 comply with the state’s procedural rules. Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 7 2008) (quoting Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). “Prejudice” is actual 8 harm resulting from the constitutional violation or error. Magby v. Wawrzaszek, 741 F.2d 9 240, 244 (9th Cir. 1984). To establish prejudice, a petitioner must show that the alleged 10 error “worked to his actual and substantial disadvantage, infecting his entire trial with 11 error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); 12 Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996). Where a petitioner fails to 13 establish either cause or prejudice, the court need not reach the other requirement. See 14 Hiivala v. Wood, 195 F.3d 1098, 1105 n.6 (9th Cir. 1999); Cook, 538 F.3d at 1028 n.13. 15 Lastly, “[t]o qualify for the ‘fundamental miscarriage of justice’ exception to the 16 procedural default rule” a petitioner “must show that a constitutional violation has 17 ‘probably resulted’ in the conviction when he was ‘actually innocent’ of the offense.” 18 Cook, 538 F.3d at 1028 (quoting Murray, 477 U.S. at 496). See Schlup v. Delo, 513 U.S. 19 298, 329 (1995) (petitioner must make a credible showing of “actual innocence” by 20 “persuad[ing] the district court that, in light of the new evidence, no juror, acting 21 reasonably, would have voted to find him guilty beyond a reasonable doubt.”). 22 i. Petitioner’s claims are unexhausted and procedurally defaulted. 23 Petitioner’s Ground Two claims are unexhausted and procedurally defaulted 24 because Petitioner failed to file a petition in his post-conviction relief proceedings. 25 “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a 26 claim (1) throughout the entire direct appellate process of the state, or (2) throughout one 27 entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 28 896, 916 (9th Cir. 2004) (quotation omitted). Here, Petitioner did not file a petition in his -9- 1 post-conviction relief proceedings, and there is nothing in the record indicating that 2 Petitioner filed an appeal with the state court of appeals. “To exhaust one’s state court 3 remedies in Arizona, a petitioner must first raise the claim in a direct appeal or 4 collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 5 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Petitioner’s Ground Two 6 claims are unexhausted. 7 Petitioner’s Ground Two claims are procedurally defaulted because his claims are 8 now barred from review. See Beaty, 303 F.3d at 987 (“A claim is procedurally defaulted 9 ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner 10 would be required to present his claims in order to meet the exhaustion requirement 11 would now find the claims procedurally barred.’”) (quoting Coleman, 501 U.S. at 735 12 n.1). Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent 13 Petitioner from returning to state court. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) 14 (precluding claims not raised on direct appeal or in prior post-conviction relief petitions), 15 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial 16 court’s decision). Petitioner’s claims are procedurally defaulted. See Coleman, 501 U.S. 17 at 735 n.1 (1991) (“[I]f the petitioner failed to exhaust state remedies and the court to 18 which the petitioner would be required to present his claims in order to meet the 19 exhaustion requirement would now find the claims procedurally barred . . . there is a 20 procedural default for purposes of federal habeas.”). 21 ii. Petitioner did not show cause and prejudice. 22 Petitioner fails to excuse the procedural default by a showing of cause and 23 prejudice. Pursuant to the “cause and prejudice” test, a petitioner must point to some 24 cause external to the defense that prevented him from following the procedural rules of 25 the state court and fairly presenting his claim. “A showing of cause must ordinarily turn 26 on whether the prisoner can show that some objective factor external to the defense 27 impeded [the prisoner’s] efforts to comply with the State’s procedural rule. Thus, cause is 28 an external impediment such as government interference or reasonable unavailability of a - 10 - 1 claim’s factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) 2 (citations and internal quotations omitted). The following objective factors may constitute 3 cause: (1) interference by state officials, (2) a showing that the factual or legal basis for a 4 claim was not reasonably available, or (3) constitutionally ineffective assistance of 5 counsel. Id. 6 Petitioner does not allege that an objective factor impeded his efforts to comply 7 with the state’s procedural rules. In his Reply, Petitioner argues that “Petitioner did in 8 fact exhaust appellate court through an ineffective counsel” because Petitioner was 9 denied a second counsel in his PCR proceedings. (Doc. 18 at 37-38.) However, Plaintiff 10 did not file a pro se petition in his PCR proceedings. (See Doc. 1 at 11, alleging that 11 “because of [Petitioner’s] incompetence [he] missed the deadline and was disqualified to 12 pursue post-conviction relief.”) Petitioner’s pro se status, limited legal resources, and 13 ignorance of the law do not constitute objective factors external to the defense that 14 impeded compliance with the state’s procedural rule. See, e.g., Hughes v. Idaho State Bd. 15 of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (finding that petitioner’s illiteracy and 16 lack of legal assistance “although unfortunate, are nevertheless insufficient to meet the 17 cause standard”); Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (finding 18 petitioner’s “ignorance of the law and procedural requirements for filing a timely notice 19 of appeal is insufficient to establish cause to excuse his procedural default”). 20 Petitioner also fails to establish prejudice because his attorneys did not provide 21 ineffective assistance. Ineffective assistance of counsel is measured by the test in 22 Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel must have performed 23 deficiently, and this performance must have prejudiced the defendant. Id. Petitioner has 24 not established a reasonable probability that motions based on his alleged Fourth 25 Amendment violations would have succeeded. For the reasons explained in Section IV 26 (b)(iii), there is no evidence that Petitioner would have decided to proceed to trial on the 27 basis of futile motions, he cannot establish prejudice arising from counsel’s failure to 28 make those motions. - 11 - 1 2 iii. Petitioner’s claims do not fall under Martinez because his claims are not “substantial” or his attorney was not ineffective. 3 Under Martinez v. Ryan, 566 U.S. 1 (2012), ineffectiveness of PCR counsel can 4 provide cause to excuse a procedural default. For Petitioner to rely upon Martinez, 5 Petitioner must “demonstrate[e] two things: (1) ‘counsel in the initial-review collateral 6 proceeding, where the claim should have been raised, was ineffective under the standards 7 of Strickland . . . ,’ and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is 8 a substantial one, which is to say that the prisoner must demonstrate that the claim has 9 some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 10 U.S. at 14). A claim is substantial “when [petitioner] demonstrates that his petition 11 involves issues which are debatable among jurists of reason, that another court could 12 resolve the issues differently, or that the issues are adequate to deserve encouragement to 13 proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 330 (2003). For the following 14 reasons, Petitioner has not shown that his PCR attorney was ineffective or that his claims 15 are substantial. 16 17 1. Petitioner’s claim of untimely prosecution is not substantial. 18 Petitioner claims his trial attorney should have sought dismissal of the charges 19 because no complaint was filed within 48 hours of Petitioner’s initial appearance. (Doc. 1 20 at 7.) However, Petitioner’s factual account is incorrect. Plaintiff’s initial appearance was 21 on August 2, 2015, (doc. 1-1 at 11); and a Direct Complaint was filed against him on 22 August 4, 2015 (doc. 13-1, Ex. A, at 1). Therefore, the record does not support 23 Petitioner’s allegations and thus the claim is not substantial. 24 25 2. Petitioner’s PCR attorney was not ineffective for not seeking suppression of evidence. 26 Petitioner claims his trial attorney should have moved for suppression of evidence. 27 (Doc. 1 at 7, 9.) Petitioner’s PCR attorney was not ineffective because those motions 28 would have been futile, as explained by the state judge at the settlement hearing. The - 12 - 1 judge told Petitioner that swerving and driving 30 miles per hour in a 65 mile per hour 2 zone would provide reasonable suspicion for a police officer to conduct a traffic stop. 3 (Doc. 13-1, Ex. X, at 115-116.) The judge told Petitioner that officers are permitted to 4 observe a person’s driving for several minutes prior to conducting a traffic stop. (Id. 5 at 117-122.) The court told Petitioner that a search incident to arrest would have 6 uncovered evidence in Petitioner’s pocket, which would have made a motion to suppress 7 the evidence unlikely to succeed. (Id. at 126-127.) Petitioner presents his conclusory 8 argument that counsel failed to file suppression motions; but he fails to demonstrate that 9 those motions would have prevailed. Petitioner fails to establish that his PCR attorney 10 was ineffective. 11 12 3. Petitioner’s PCR attorney was not ineffective for not investigating. 13 Petitioner argues that his trial attorney did not investigate Petitioner’s allegations 14 of being profiled and subjected to a pretextual traffic stop. (Doc. 1 at 4, 6.) “[C]ounsel 15 has a duty to make reasonable investigations or to make a reasonable decision that makes 16 particular investigations unnecessary. In any ineffectiveness case, a particular decision 17 not to investigate must be directly assessed for reasonableness in all the circumstances, 18 applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 19 690–91. The record contains no evidence that Petitioner’s trial attorney conducted the 20 investigation requested by Petitioner. Therefore, his decision not to investigate had to be 21 reasonable. Id. At the settlement conference of February 12, 2015, the court explained 22 that even if the Petitioner could prove that the officer had profiled him, a motion to 23 suppress would probably be denied because the prosecution could prove that the officer 24 had a valid reason for stopping Petitioner. (Doc. 13-1, Ex. X, at 115-116.)2 Because the 25 motion to suppress was futile, Premo, 562 U.S. at 123-24, further investigation was 26 27 28 2 See also United States v. Ibarra, 345 F.3d 711, 713-14 (9th Cir. 2003) (citing Whren v. United States, 517 U.S. 806, 813 (1996)) (finding traffic stop based on reasonable suspicion of traffic violation as pretext to investigate driver’s suspected drug activity did not render stop unreasonable). - 13 - 1 unnecessary. Because counsel’s decision not to investigate was not unreasonable, counsel 2 was not ineffective. 3 4 4. Petitioner’s claim of insufficient communication is not substantial. 5 Petitioner claims that his trial attorney never visited him in jail to discuss the case, 6 and only spoke with Petitioner twice. (Doc. 1 at 9.) Since Petitioner’s conclusory, 7 unsupported allegations do not show “what purpose additional consultation . . . would 8 have served[,]” he has not shown that the amount of time his trial counsel met with him 9 was constitutionally inadequate. United States v. Lucas, 873 F.2d 1279, 1280 (9th Cir. 10 1989) (per curiam); Chavez v. Pulley, 623 F. Supp. 672, 685 (E.D. Cal. 1985) (“brevity of 11 consultation time between a defendant and his counsel alone cannot support a claim of 12 ineffective assistance of counsel,” especially where the defendant “fails to allege what 13 purpose further consultation with his attorney would have served and fails to demonstrate 14 how further consultation with his attorney would have produced a different result”). 15 Consequently, Petitioner’s claim is not substantial. 16 17 5. Petitioner’s claim of certain improprieties is not substantial. 18 Petitioner claims that his trial attorney “conspired with the prosecution to convict 19 the Petitioner forcing Petitioner to sign a plea bargain,” and threatened Petitioner with 24 20 years in prison unless he signed a plea agreement. (Doc. 1 at 9.) Petitioner’s allegations 21 are contrary to the statements Petitioner made at the change of plea hearing of September 22 12, 2015. (Doc. 13-1, Ex. Y., at 9-10.) Other than Petitioner’s own self-serving 23 statements, there is no evidence that Petitioner’s defense counsel conspired or threatened 24 the Petitioner to sign the plea agreement. See Womack v. Del Papa, 497 F.3d 998, 1004 25 (9th Cir. 2007) (quoting United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.1987) 26 (“Solemn declarations in open court carry a strong presumption of verity.”)) (citing 27 United States v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir.1983) (allowing the court to 28 credit defendant’s sworn statements at his plea hearing over subsequent contradictory - 14 - 1 2 3 assertions)). Therefore, Petitioner’s claim is not substantial. iv. Petitioner does not show that his conviction is a fundamental miscarriage of justice. 4 Petitioner fails to “establish by clear and convincing evidence that but for the 5 constitutional error, no reasonable factfinder would have found [him] guilty of the 6 underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Here, Petitioner’s guilty plea would 7 minify a claim of actual innocence. See Chestang v. Sisto, 522 Fed. Appx. 389, 390 (9th 8 Cir. 2013) (finding petitioner’s guilty plea “seriously undermine[d]” a claim of actual 9 innocence). The evidence against Petitioner is also overwhelming since Petitioner was 10 “under the influence of dis[so]ciative anesthetics and [Central Nervous System] 11 stimulants,” and “[had] in [his] possession a small quantity of meth.” (Doc. 13-1, Ex. A, 12 at 4-5.) To pass through the actual innocence/Schlup gateway, a petitioner must establish 13 his or her factual innocence of the crime and not mere legal insufficiency. Petitioner 14 presents no argument or evidence that he is actually innocent of the offenses. 15 16 17 18 19 20 21 22 v. United States v. Couto. Finally, Petitioner incorrectly argues that his case resembles United States v. Couto, 311 F.3d 179 (2d Cir. 2002), abrogated by Padilla v. Kentucky, 559 U.S. 356 (2010). In Couto, the petitioner claimed her attorney was ineffective because her attorney incorrectly advised the petitioner on how pleading guilty would cause her to be deported. Id. at 183. Couto is distinguishable because here, Petitioner did not receive incorrect advice on immigration, and does not point to any incorrect advice by his trial attorney. CONCLUSION 23 The record is sufficiently developed and the Court does not find that an 24 evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 25 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that 26 Petitioner’s claims are timely, but his claims on Ground One are waived and his claims in 27 Ground Two are procedurally defaulted. The Court will therefore recommend that the 28 Petition for Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice. - 15 - 1 IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas 2 Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH 3 PREJUDICE. IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court’s judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report and Recommendation. See Fed. R. Civ. P. 72. Dated this 6th day of March, 2018. 23 24 25 26 Honorable John Z. Boyle United States Magistrate Judge 27 28 - 16 -

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