Berrones #133399 v. Ryan et al
Filing
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REPORT AND RECOMMENDATION re: 1 Petition for Writ of Habeas Corpus (State/2254) filed by Francisco Alberto Berrones. Signed by Magistrate Judge Leslie A Bowman on 7/20/2015. (KEP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Francisco Alberto Berrones,
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Petitioner,
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vs.
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Charles L. Ryan; et al.,
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Respondents.
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No. CV 15-018-TUC-JAS (LAB)
REPORT AND RECOMMENDATION
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Pending before the court is a petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
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§ 2254, filed on January 15, 2015, by Francisco Alberto Berrones, an inmate confined in the
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Arizona State Prison Complex in Florence, Arizona. (Doc. 1)
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Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate
Judge Bowman for report and recommendation.
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The Magistrate Judge recommends the District Court, after its independent review of the
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record, enter an order denying the petition. Trial counsel was not ineffective in his handling of
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Berrones’s change of plea. Alleged errors that occurred prior to his change of plea cannot be
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the basis for habeas relief.
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Summary of the Case
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Berrones pleaded guilty, on the fourth day of trial, to “two counts of sale and/or transfer
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of a narcotic drug, three counts of possession of a narcotic drug for sale, and one count of
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possession of drug paraphernalia.” (Doc. 16-1, p. 3) He was sentenced to concurrent prison
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terms, the longest of which was a presumptive term of 9.25 years. Id.
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Berrones filed a notice of appeal, which was construed by the trial court as a notice of
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post-conviction relief. (Doc. 16-1, p. 10) His post-conviction relief proceeding, however, did
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not proceed smoothly. All told, three different attorneys separately reviewed the record, each
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concluding there were no meritorious issues to be raised. (Doc. 16-1, pp. 10-11) Berrones filed
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a petition pro se on January 17, 2013. (Doc. 16-1, p. 11) The trial court denied the petition
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ruling that trial counsel was not ineffective in his handling of Berrones’s change of plea and
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Berrones himself was competent to enter a plea of guilty. (Doc. 16-1, p. 12)
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Berrones appealed arguing (1) trial counsel was ineffective for (a) failing to seek the
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exclusion of evidence on 4th Amendment grounds (b) failing to investigate a violation of his 6th
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Amendment rights, (c) failing to adequately impeach a witness based on his inconsistent
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statements, (d) failing to investigate potential evidence tampering, (e) failing to move for a
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mental exam to show he was not competent to stand trial or for use as mitigating evidence at
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sentencing, (f) failing to request a mitigation hearing, and (g) providing him with erroneous
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advice and encouraging him to plead guilty because Berrones was out of money and (2) his trial
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should have been severed from his codefendant’s. (Doc. 16-1, pp. 4-5) The Arizona Court of
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Appeals granted review but denied relief on July 15, 2014. (Doc. 16-1, p. 2)
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On January 15, 2015, Berrones filed the pending petition for writ of habeas corpus.
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(Doc. 1) He claims (1) trial counsel was ineffective for (a) “failure to obtain psychological
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evaluation,” (b) “failure to contest tampered evidence,” (c) “failure to contest perjured
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testimony,” (d) “conflict of interest for lack of payment,” (e) “plea bargain not reduced to
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writing nor fully explained,” and (f) “failure to move for mitigation hearing,” (2) the police
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engaged in misconduct during their investigation, (3) Detective Miller gave false testimony
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at trial, (4) evidence introduced at trial had been tampered with, (5) the prosecution
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committed misconduct by tampering with evidence, delaying discovery, and allowing false
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testimony to be presented at trial, (6) counsel was ineffective at sentencing and he was
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confused about the content of the plea agreement, (7) his trial should have been severed from
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his codefendant’s, and (8) his post-conviction relief attorneys were ineffective for failing to
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secure a complete record. (Doc. 1)
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In their answer, the respondents argue Claim (8) is procedurally defaulted as well as all
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claims that do not pertain to the voluntariness of his guilty plea. (Doc. 16, pp. 5-6) They argue
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the remaining ineffective assistance of counsel (IAC) claims should be denied on the merits.
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(Doc. 16) Berrones filed a reply on June 18, 2015. (Doc. 17)
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The court finds all claims alleging error that occurred prior to Berrones’s guilty plea are
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not cognizable. The court addresses the remainder of Berrones’s claims on the merits. The
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court does not reach the respondents’ procedural default arguments.
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Discussion: Cognizability
Claims (1)(b), (1)(c), (2), (3), (4), (5), and (7) allege errors that occurred before Berrones
pleaded guilty. These errors are not cognizable in habeas corpus.
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“[A] guilty plea represents a break in the chain of events which has preceded it in the
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criminal process.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608 (1973).
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“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the
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offense with which he is charged, he may not thereafter raise independent claims relating to the
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deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id.
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Here, Berrones claims that various constitutional errors occurred prior to his guilty plea.
These claims are not cognizable. Tollett, 411 U.S. at 267, 93 S.Ct. at 1608.
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The court will consider the remaining claims on the merits. His ineffective assistance
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of counsel claims will be analyzed only where Berrones alleges counsel’s performance affected
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his decision to plead guilty or his sentence. See Lambert v. Blodgett, 393 F.3d 943, 979-980
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(9th Cir. 2004) (“In the context of a guilty plea, the ineffectiveness inquiry probes whether the
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alleged ineffective assistance impinged on the defendant’s ability to enter an intelligent,
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knowing and voluntary plea of guilty.”).
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Discussion: Merits
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The writ of habeas corpus affords relief to persons in custody in violation of the
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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is
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in custody pursuant to the judgment of a state court, the writ will not be granted unless prior
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adjudication of the claim –
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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
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28 U.S.C. § 2254(d). The petitioner must shoulder an additional burden if the state court
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considered the issues and made findings of fact.
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In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.
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28 U.S.C.A. § 2254 (e)(1).
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“[The] standard is intentionally difficult to meet.” Woods v. Donald, 135 S.Ct. 1372,
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1376 (2015). “‘[C]learly established Federal law’ for purposes of § 2254(d)(1) includes only
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the holdings, as opposed to the dicta, of th[e] Court’s decisions.” Id. A decision is “contrary
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to” Supreme Court precedent if that Court already confronted “the specific question presented
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in this case” and reached a different result. Id. at 1377.
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A decision is an “unreasonable application of” Supreme Court precedent only if it is
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“objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. at 1376.
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“To satisfy this high bar, a habeas petitioner is required to show that the state court’s ruling on
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the claim being presented in federal court was so lacking in justification that there was an error
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well understood and comprehended in existing law beyond any possibility for fairminded
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disagreement.” Id. (punctuation modified)
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Discussion
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In Claim (1)(a), Berrones argues counsel was ineffective for failing to seek a
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psychological evaluation. Berrones does not explicitly explain why he believes he was
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prejudiced by counsel’s failure. Perhaps he is arguing he would not have pleaded guilty had he
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been in his right mind.
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To succeed on an ineffective assistance claim, the habeas petitioner must prove “his
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counsel’s performance was deficient in violation of the Sixth and Fourteenth Amendments” and
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“he was prejudiced by counsel’s deficient performance.” Clark v. Arnold, 769 F.3d 711, 725
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(9th Cir. 2014).
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“Counsel is constitutionally deficient if the representation fell below an objective
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standard of reasonableness such that it was outside the range of competence demanded of
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attorneys in criminal cases.” Clark, 769 F.3d at 725 (punctuation modified). “Judicial scrutiny
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of counsel’s performance must be highly deferential.” Id. “When evaluating counsel’s conduct,
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[the court] must make every effort to eliminate the distorting effects of hindsight, and to
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evaluate the conduct from counsel’s perspective at the time.” Id.
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“A defendant is prejudiced by counsel’s deficient performance if there is a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
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been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence
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in the outcome.” Id. In a case such as this one, “in order to satisfy the ‘prejudice’ requirement,
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the defendant must show that there is a reasonable probability that, but for counsel’s errors, he
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would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
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U.S. 52, 59, 106 S.Ct. 366, 370 (1985).
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The state court of appeals considered this claim on the merits and denied it. The court
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explained that while Berrones asserted he had psychological problems, he did not identify
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anything in the record in support of his argument that counsel knew or should have known he
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was mentally impaired. (Doc. 16-1, p. 6); see also (Doc. 16-2, pp. 27-28) The presentence
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report stated that Berrones suffered from depression, but it also stated he was receiving
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medication for that condition and “he thought the medication was working.” (Doc. 16-1, p. 6)
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(punctuation modified) While Berrones stated “he was found incompetent in another case
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number, he [did] not assert counsel was aware of this fact nor identify anything in the record
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suggesting counsel should have been aware of it.” (Doc. 16-1, p. 6)
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In his reply brief, Berrones asserts in a conclusory fashion that the same evidence that
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caused his post-conviction relief counsel to have him evaluated was before his trial counsel.
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(Doc. 17, p. 3) He does not, however, state what that evidence was or explain what in the
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record supports his assertions. Moreover, even if he did so, his claim is limited to the facts and
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law provided to the state court in the first place. See Weaver v. Thompson, 197 F.3d 359, 364
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(9th Cir. 1999) (“The state courts have been given a sufficient opportunity to hear an issue when
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the petitioner has presented the state court with the issue’s factual and legal basis.”).
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Berrones has not shown trial counsel’s performance was deficient. The decision of the
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Arizona Court of Appeals denying relief on this claim was not “contrary to” or “an
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unreasonable application of” federal law. See 28 U.S.C. § 2254(d).
Berrones further argues in Claim (1)(d) that counsel labored under a conflict of interest
because he wanted Berrones to pay him more money, and Berrones was unable to do so.
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“To prove an [ineffective assistance of counsel] claim premised on an alleged conflict
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of interest, a petitioner must establish that an actual conflict of interest adversely affected his
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lawyer’s performance.”
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(punctuation modified). “[U]ntil a defendant shows that his counsel actively represented
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conflicting interests, he has not established the constitutional predicate for his claim of
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ineffective assistance.” Id. “The client must demonstrate that his attorney made a choice
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between possible alternative courses of action that impermissibly favored an interest in
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competition with those of the client.” Id.
Washington v. Lampert,
422 F.3d 864, 872 (9th Cir. 2005)
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Berrones argues first that an actual conflict of interest existed because counsel believed
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he was entitled to more money, which Berrones could not pay. Accordingly, counsel was
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motivated to conclude the case as quickly as possible. The Ninth Circuit, however, has already
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rejected the notion that an “actual conflict of interest” exists simply due to the “theoretical
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conflict that exists between an attorney’s personal fisc and his client’s interests.” Washington
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v. Lampert, 422 F.3d at 872. For if this were enough to create an actual conflict, then attorneys
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appearing pro bono would always be ineffective. Id. Even if trial counsel believed he was
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entitled to more money, he was not laboring under an actual conflict of interest as a matter of
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law. Id.
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Berrones further argues that because the plea agreement offered him no real advantage
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over continuing with the trial, counsel’s advice to accept the plea is evidence that he was not
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acting in Berrones’s best interests. Counsel’s advice to accept the plea was therefore a cynical
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attempt to resolve the action as economically as possible. See (Doc. 17, p. 7)
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As the state court of appeals noted, however, the plea agreement provided Berrones the
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very real benefit that his sentences would run concurrently “when he arguably could have faced
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consecutive sentences had he been convicted after trial.” (Doc. 16-1, p. 7) The plea agreement
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provided Berrones with a real sentencing benefit. Accordingly, counsel’s advice to accept the
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plea is not evidence that he was putting his financial interests before his client’s legal interests.
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The court of appeals analyzed this claim and denied it on the merits. There is nothing
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in the record to support Berrones’s belief that counsel was laboring under an actual conflict or
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that counsel’s performance was deficient because he wanted to conclude the trial as soon as
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possible for personal financial reasons. The decision of the Arizona Court of Appeals denying
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relief on this claim was not “contrary to” or “an unreasonable application of” federal law. See
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28 U.S.C. § 2254(d).
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In Claim (1)(e), Berrones argues counsel was ineffective for failing to put his plea
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agreement into writing. He does not, however, identify what prejudice he suffered due to this
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error. In his reply brief, he asserts that failure to reduce the plea to writing created confusion
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and necessitated a resentencing. (Doc. 17, p. 6) Assuming he is correct, the trial court has
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already conformed the sentence to the parties’ expectations and Berrones has suffered no
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prejudice. The decision of the Arizona Court of Appeals denying relief on this claim was not
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“contrary to” or “an unreasonable application of” federal law. See 28 U.S.C. § 2254(d); (Doc.
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16-1, p. 7)
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In Claim (1)(f), Berrones argues counsel was ineffective for failing to request a
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mitigation hearing at sentencing. The state court of appeals denied the claim because Berrones
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failed to specify what evidence he would have presented at such a hearing which “was not
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adequately presented in the presentence report, counsel’s sentencing memorandum, and the
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letters submitted for his sentencing.” (Doc. 16-1, p. 8) Moreover, Berrones cannot show that
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counsel’s failure resulted in a harsher sentence. Berrones shows neither deficient performance
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nor prejudice. The decision of the Arizona Court of Appeals denying relief on this claim was
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not “contrary to” or “an unreasonable application of” federal law. See 28 U.S.C. § 2254(d);
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(Doc. 16-1, p. 7)
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In Claim (6), Berrones argues generally that counsel was ineffective at sentencing and
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he was confused about the content of the plea agreement. (Doc. 1, p. 11) The state court of
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appeals, however, found that “the trial court advised Berrones during his plea colloquy of the
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sentencing range he would face upon pleading guilty.” (Doc. 16-1, p. 7) Accordingly, his claim
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is directly contradicted by the record.
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The decision of the Arizona Court of Appeals denying relief on this claim was not
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“contrary to” or “an unreasonable application of” federal law. See 28 U.S.C. § 2254(d); (Doc.
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16-1, p. 7)
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Finally, in Claim (8), Berrones argues his post-conviction relief attorneys rendered
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ineffective assistance because they did not secure the entire record before conducting their
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evaluation of his case. The court assumes, without deciding, that an IAC claim against counsel
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in a Rule 32 of-right proceeding is cognizable. But see 28 U.S.C. § 2254(i).
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The respondents argue this claim was not properly exhausted. Assuming they are
correct, this court may nevertheless deny the claim on the merits. 28 U.S.C. § 2254(b)(2).
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Berrones does not explain what meritorious issues his attorneys failed to uncover as a
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result of their error. (Doc. 1, p. 12) Accordingly, he does not show how he was prejudiced by
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this alleged error. Counsel were not ineffective.
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RECOMMENDATION
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The Magistrate Judge recommends that the District Court, after its independent review
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of the record, enter an order DENYING the Petition for Writ of Habeas Corpus. (Doc. 1)
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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within
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14 days of being served with a copy of this report and recommendation. If objections are not
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timely filed, they may be deemed waived. The Local Rules permit a response to an objection.
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They do not permit a reply to a response without leave of court.
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DATED this 20th day of July, 2015.
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