Montiel v. Hacked-Agnew et al

Filing 22

ORDER ACCEPTING 16 Report and Recommendation; the objections (Doc. 17 ) are overruled as specified above; the Petition for Writ of Habeas Corpus (Doc. 1 ) is denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly. FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal is denied. Signed by Senior Judge James A Teilborg on 12/6/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kenneth Allen Montiel,

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Petitioner,

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ORDER

v.

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No. CV-17-08017-PCT-JAT

Carla Hacked-Agnew, et al.,

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Respondents.

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Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. (Doc.

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1). The Magistrate Judge to whom this case is assigned issued a Report and

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Recommendation (“R&R”) recommending that the Petition be denied and dismissed with

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prejudice. (Doc. 16). Petitioner filed an objection to the R&R. (Doc. 17).

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I.

REVIEW OF R&R

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This Court “may accept, reject or modify in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district

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court must review the Magistrate Judge’s findings de novo only if a party objects to the

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Magistrate Judge’s findings or recommendations. United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc). However, if no party objects to any fact or issue,

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the district court is not required to engage in “any review at all . . . .” Thomas v. Arn, 474

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U.S. 140, 149 (1985). Accordingly, the Court will review the portions of the R&R to

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which Petitioner has objected de novo.

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II.

PETITION FOR WRIT OF HABEAS CORPUS

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In his habeas petition, Petitioner raises four grounds for relief, each claiming a

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violation of Petitioner’s due process rights under the Fourth, Fifth, and Fourteenth

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Amendments: (1) judicial vindictiveness, (2) judicial breach of verbal agreement during

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settlement conference, (3) the court’s refusal to hold a suppression hearing, and (4)

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ineffective assistance of counsel. (Doc. 1).

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The Magistrate Judge found that the state court’s determination related to

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Petitioner’s first ground for relief was not contrary to, nor an unreasonable application of,

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federal law. (Doc. 16 at 11). The Magistrate Judge consequently recommended that the

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ground be denied and dismissed. (Id.) Petitioner objects to the Magistrate Judge’s

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recommendation, alleging that the state court’s decision “was/is contrary to or an

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unreasonable application of federal law.” (Doc. 17 at 3).

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With regard to Petitioner’s remaining grounds for relief, the Magistrate Judge

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found that each of the grounds were procedurally barred because Petitioner had not fairly

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presented them in state court. (Doc. 16 at 12). The Magistrate Judge subsequently found

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no excuse for Petitioner’s procedural default. (Id. at 12–13). Petitioner objects to the

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Magistrate Judge’s findings, alleging that he “ha[d] fulfilled every requirement to

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properly exhaust [his] federal claims according to the law.” (Doc. 17 at 3).

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III.

FACTUAL AND PROCEDURAL BACKGROUND

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The R&R recounts the factual and procedural background of this case, based

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primarily on the record from state court. (Doc. 16 at 1–3). Petitioner ostensibly “disagrees

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with the [Magistrate Judge’s] . . . factual findings,” but fails to address any specific

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factual inadequacies or discrepancies. (Doc. 17 at 2). Petitioner has failed to show that

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the state court record, relied on by the Magistrate Judge, was based on an unreasonable

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determination of the facts. See 28 U.S.C. § 2254(d). Accordingly, the Court adopts that

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portion of the R&R.

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IV.

DISCUSSION

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A.

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Petitioner’s first ground for relief is under a theory of judicial vindictiveness.

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(Doc. 1 at 6). Petitioner claims that the state court judge was vindictive when sentencing

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him to a 13.5-year sentence after previously mentioning that a sentence of five years

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would probably be imposed if Petitioner lost at trial. (Id.). Petitioner asserts that “when a

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. . . judge[’]s ultimate goal is a substantial ‘time increase,’” this leads to a “presumption

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of vindictiveness violating due process, Fourth, Fifth, and Fourteenth Constitutional

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Amendments.” (Id.). The Arizona Court of Appeals held that there was no judicial

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vindictiveness. (Doc. 16 at 1–2). The Magistrate Judge recommended that Petitioner’s

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first ground be denied and dismissed because state court’s decision was neither contrary

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to established federal law nor based on an unreasonable factual determination. (Doc. 16

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at 11).

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Ground One: Judicial Vindictiveness

i.

Legal Standard

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As explained in the R&R, federal courts “shall not” grant habeas relief, with

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respect to claims adjudicated on the merits in state court, unless the state court’s decision

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was (1) contrary to, or an unreasonable application of, clearly established federal law as

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determined by the United States Supreme Court; or (2) based on an unreasonable

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determination of the facts in light of the evidence presented in the state court proceeding.

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(Doc. 16 at 3); see 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412–13

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(2000). This standard requires that federal courts give the “benefit of the doubt” to state

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court decisions. Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

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As it relates to the first prong of the test, a state court’s decision is only contrary to

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federal precedent if it applies a rule which contradicts the law as previously set forth in a

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Supreme Court case, or, using “materially indistinguishable” facts from a Supreme Court

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case, finds contrary to the Supreme Court decision. Williams, 529 U.S. at 404–05. The

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first prong can also be satisfied if the state court’s decision applies a governing rule to a

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set of facts—or extends, or fails to extend, a legal principle—in an objectively

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unreasonable manner. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). To

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satisfy the second prong, a petitioner must show that the state court made an

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unreasonable determination of the facts in light of the evidence presented in that court’s

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proceedings. 28 U.S.C. § 2254(d)(2).

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ii.

Analysis

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The Magistrate Judge, in the R&R, discussed two United States Supreme Court

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cases with relevant legal precedent for the issue at hand. (Doc. 16 at 10 (discussing North

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Carolina v. Pearce, 395 U.S. 711 (1969) and Alabama v. Smith, 490 U.S. 794 (1989)).

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The Magistrate Judge correctly determined that the federal law derived from those cases

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was not unreasonably applied in the present state court case. (Id.) The Magistrate Judge

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found that the Arizona Court of Appeals was reasonable in holding that there was no

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“categorical presumption of judicial vindictiveness” in the circumstances of this case,

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which included the “defendant reject[ing] the plea offer, go[ing] to trial, and receiv[ing] a

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harsher sentence after trial than was available to him under the rejected plea offer . . . .”

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(Doc. 16 at 10–11). As such, the Magistrate Judge found, and this Court agrees, that the

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state court’s determination was not contrary to, nor an unreasonable application of,

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federal law. Furthermore, this Court is aware of no Supreme Court case with facts

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materially indistinguishable from the present case. As such, Petitioner failed to meet the

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first prong of the test.

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With respect to the second prong, the Court must identify whether the state court

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reasonably interpreted the facts in light of the evidence presented. As discussed in the

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R&R, the state court’s determination that there was no presumption of vindictiveness on

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the part of the judge was based on facts in the record. (Id. at 11). Specifically, the

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Magistrate Judge identified that the record reflected the reason for the increased sentence

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as “aggravating circumstances found by the jury and judge based on trial evidence . . . .”

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(Id.). These circumstances led the state court judge to impose a harsher sentence than the

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one contemplated during the settlement conference, where the aggravating circumstances

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had not been revealed. Because a presumption of vindictiveness could not be identified,

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the burden was on Petitioner to show that the judge acted with actual vindictiveness.

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This, Petitioner failed to do. Furthermore, Petitioner failed to identify a deficiency in the

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process followed by the state court, nor does this Court find any deficiency.

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Petitioner claims that the state court’s decision “was/is contrary to or an

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unreasonable application of federal law,” but fails to cite any federal law or case holding

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that would support this assertion. (Doc. 17 at 3). Petitioner only states that the state

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court’s “performance analysis was unreasonable and its prejudice analysis was/is contrary

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to clearly established federal law.” (Id.) Absent a showing of factual or legal evidence to

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support these conclusions couched as claims, the Court finds them meritless.

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iii.

Conclusion

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The Court concludes that the state court’s decision was neither contrary to clearly

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established federal law nor based on an unreasonable factual determination. Because the

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Magistrate Judge appropriately applied the legal standard at issue to the first ground, the

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Court overrules Petitioner’s objections and accepts the R&R’s recommendation of denial

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and dismissal of Petitioner’s first ground.

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B.

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Petitioner’s remaining grounds are that (1) the court inappropriately breached a

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verbal agreement, made between the court and Petitioner, during a settlement conference;

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(2) the court inappropriately refused to hold a suppression hearing related to evidence

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that Petitioner believes was illegally-seized; and (3) that Petitioner’s trial counsel was

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ineffective in misinforming him about the state’s plea agreement,1 and in failing to

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request a suppression hearing related to the previously-mentioned evidence. (Doc. 1 at

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13, 33, 44). The Magistrate Judge found these claims to be procedurally barred because

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they had not been exhausted in state court. (Doc. 16 at 12).

Grounds Two through Four

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Petitioner simultaneously argues that he “took the judge’s word that he’d receive a
sentence of 5 years,” (Doc. 17 at 5), and that he was misinformed by his attorney
regarding the sentence under his plea agreement and believed that it would be thirty
years—alleging that, “had [he] known [that the sentence would only be five years] he
would have taken great consideration of the offer.” (Doc. 1 at 44). While it is obvious
that both of these statements cannot be true, the Court need not address this conflict
because, as discussed below, Petitioner’s claim is barred on procedural grounds.
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i.

Legal Standard

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The R&R notes that, before petitioning a federal court for a writ of habeas corpus,

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state prisoners must exhaust their remedies in state court. (Doc. 16 at 4); see 28 U.S.C. §

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2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365–66 (1995); McQueary v.

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Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). In Arizona, these claims must be presented

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to the Arizona Court of Appeals through either the direct appeal process or other post-

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conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen

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v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Furthermore, the petitioner must “alert the

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state courts to the fact that [he] was asserting a claim under the United States

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Constitution.” Sumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000). General appeals to

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constitutional guarantees are insufficient to meet the standard of presentation before state

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courts. Id. at 987 (quoting Gray v. Netherland, 518 U.S. 1552, 163 (1996)). The United

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States Supreme Court has held that claims not sufficiently presented to state courts in a

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procedurally-correct manner are deemed procedurally defaulted and generally barred

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from habeas relief. Coleman v. Thompson, 501 U.S. 722, 731–32 (1991).

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When alleging ineffective assistance of counsel, a claim will be procedurally

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barred if “all operative facts” related to the claim have not been presented to the state

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courts. Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). Each instance of a

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counsel’s ineffectiveness must be separately alleged for purposes of exhaustion in state

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court. Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013).

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“[A]n adequate and independent finding of procedural default will bar federal

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habeas review of the federal claim, unless the habeas petitioner can show cause for the

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default and prejudice attributable thereto, or demonstrate that failure to consider the

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federal claim will result in a fundamental miscarriage of justice.” Harris v. Reed, 489

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U.S. 255, 262 (1989) (internal citations and quotations omitted). The Supreme Court has

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identified that the “fundamental miscarriage of justice exception” can be used to

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overcome procedural defaults in situations where the petitioner makes a proper showing

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of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 384 (2013). Furthermore, a

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petitioner’s ignorance of procedural rules due to a lack of legal training is insufficient to

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establish “cause” for the procedural default. See Thomas v. Lewis, 945 F.2d 1119, 1123

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(9th Cir. 1991) (holding that a habeas petitioner’s lack of legal training and limited access

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to legal materials did not constitute cause to excuse procedural default).

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ii.

Analysis

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The Magistrate Judge, in the R&R, identified that Petitioner failed to assert these

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three grounds in state court. (Doc. 16 at 12). The Magistrate Judge found that Petitioner

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failed to raise the breach of contract claim on direct appeal or in Petitioner’s Post-

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Conviction Relief (PCR) proceedings. (Id.) The Magistrate Judger further found that

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Petitioner failed to raise a claim related to suppression of evidence to the Arizona Court

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of Appeals on review from the denial of Petitioner’s PCR petition. (Id.) Finally, the

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Magistrate Judge found that Petitioner failed to raise the specific claim related to

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ineffective assistance of counsel in Petitioner’s PCR proceedings. (Id.) As such, the

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Magistrate Judge found that these three grounds were procedurally barred. (Id.)

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Petitioner argues that he has “followed every rule . . . to properly present [and]

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exhaust any and every ground(s) for relief to both the Superior then the appropriate

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appellate courts . . . includ[ing] direct appeal, Rule 32, Petition for Review for R[ule] 32,

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and Habeas.” (Doc. 17 at 3). After reviewing Petitioner’s brief before the Court of

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Appeals of Arizona, (Doc. 11-6 at 111), Notice of Post-Conviction Relief (Id. at 159),

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and Petition for Post-Conviction Relief (Id. at 164), this Court agrees with the Magistrate

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Judge. There is no mention in any of the referenced documents that Petitioner raised a

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breach of contract claim or a claim related to the suppression of evidence in either his

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appeal to state court or in his PCR proceedings. Petitioner did, as the Magistrate Judge

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notes, raise a claim related to ineffective assistance of counsel—but the claim was

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unrelated to Petitioner’s current ground, which was that the “counsel[’]s unprofessional

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performance cause[d] harmful error and prejudice[d] [Petitioner] and caused [Petitioner]

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to receive a substantial[ly] higher sentence,” specifically that his counsel “misinformed

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him about a plea agreement” and “failed to hold a suppression hearing.” (Doc. 1 at 44).

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Petitioner’s ineffective assistance claim in state court was related to Petitioner’s counsel’s

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failure to present mitigating evidence. (Doc. 11-6 at 169). As such, the operative facts

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related to Petitioner’s three claims—breach of contract, suppression of evidence, and

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ineffective assistance of counsel—have not been raised in state court and are resultantly

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procedurally barred.

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Petitioner notes that, in order for a state’s procedural rule to foreclose federal

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review, the state rule must be “clear, consistently applied, and well-established at the time

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of the petitioner’s purported default.” Calderon v. U.S. Dist. Court for E. Dist. Of

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California, 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Wells v. Mass, 28 F.3d 1005,

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1009 (9th Cir. 1994)). However, Petitioner fails identify which, if any, state rules violate

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the factors required by Calderon. To the extent that Petitioner relies on his “being

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unlearned in law” as a reason for excusing his procedural missteps, this does not, as

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discussed above, establish sufficient cause to excuse Petitioner’s defaults. (Doc. 17 at 4).

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As such, this Court finds no reason why failure to follow Arizona’s procedural rules

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should not foreclose federal review.

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Petitioner is unable to overcome these procedural defaults through either a

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showing of cause or a fundamental miscarriage of justice. Petitioner has not shown cause

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which would excuse the procedural defaults, and as such, this Court will not reach the

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issue of prejudice. Poland v. Stewart, 169 F.3d 573, 588 (9th Cir. 1999). Finally,

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Petitioner has raised no claim of actual innocence which would demonstrate a

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fundamental miscarriage of justice. Absent “evidence of innocence so strong that a court

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cannot have confidence in the outcome of the trial,” Petitioner has not shown a

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fundamental miscarriage of justice which would excuse Petitioner’s procedural default.

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Schlup v. Delo, 513 U.S. 298, 316 (1995).

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iii.

Conclusion

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Petitioner’s remaining grounds for relief are procedurally barred. Additionally, the

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Court agrees with the Magistrate Judge’s conclusion that Petitioner has both failed to

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establish cause which would excuse the procedural defaults and failed to make a

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sufficient showing of actual innocence to establish a miscarriage of justice. Therefore, the

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Court overrules Petitioner’s remaining objections related to these grounds and accepts the

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R&R’s recommendation that the Court deny relief on these grounds.

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V.

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CERTIFICATE OF APPEALABILITY
The R&R recommends that this Court deny the issuance of a certificate of

appealability (“COA”). Petitioner objects to this recommendation.

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A judge may issue a COA “only if the applicant has made a substantial showing of

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the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standards for granting a

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COA are the same for petitions under § 2254 and § 2255. See United States v. Martin,

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226 F.3d 1042, 1046 n.4 (9th Cir. 2000). “Where a district court has rejected the

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constitutional claims on the merits, the showing required to satisfy § 2253(c) is

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straightforward: The petitioner must demonstrate that reasonable jurists would find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 483-84 (2000); see also id. (describing the COA determination

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as deciding whether the issues presented are “‘adequate to deserve encouragement to

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proceed further’” [quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)]). “When the

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district court denies a habeas petition on procedural grounds without reaching the

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prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows,

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at least, that jurists of reason would find it debatable whether the petition states a valid

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claim of the denial of a constitutional right and that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S.

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at 484 (emphasis added).

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Here, with regard to Petitioner’s first ground, the Court finds that Petitioner has

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not demonstrated that reasonable jurists would find this Court’s assessment of the

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constitutional claims debatable or wrong. Furthermore, regarding the remaining grounds,

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the Court finds that jurists of reason could not find it debatable whether this Court was

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correct in its procedural rulings. Therefore, the Court will overrule Petitioner’s objection

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to the R&R with respect to the issue of whether to grant a COA.

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VI.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that the R&R (Doc. 16) is accepted; the objections (Doc. 17)

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are overruled as specified above; the Petition for Writ of Habeas Corpus (Doc. 1) is

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denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to
proceed in forma pauperis on appeal is denied.
Dated this 6th day of December, 2018.

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