Flores #167621 v. Ryan et al

Filing 21

ORDERED that Respondent's request that the 1 Petition for Writ of Habeas Corpus (State/2254) be dismissed as procedurally defaulted is denied. It is further ordered that Respondent shall file an answer addressing the merits of Petitioners habeas claims on or before March 16, 2018. It is further ordered that Petitioner may file a reply to respondent's answer on or before April 16, 2018. Signed by Judge Rosemary Marquez on 2/6/2018. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Julien Jesus Flores,
Petitioner,

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ORDER

v.

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No. CV-15-00070-TUC-RM

Charles Ryan, et al.,

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Respondents.

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On February 19, 2015, Petitioner Jesus Flores filed a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (“§ 2254 Petition”). (Doc. 1.) Respondents filed a

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Limited Answer on July 13, 2015. (Doc. 14.) Petitioner filed a Reply on August 20,

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2015. (Doc. 15.) This Court referred the matter to Magistrate Judge Eric J. Markovich

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for a Report and Recommendation (Doc. 6 at 3),1 but it later withdrew the reference

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(Doc. 20).

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I.

Factual and Procedural Background

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In Pima County Superior Court case number CR 20121522, Petitioner pled guilty

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to illegal control of an enterprise, money laundering, conspiracy to possess marijuana for

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sale, conspiracy to possess narcotic drugs for sale, conspiracy to possess dangerous drugs

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for sale, use of an electronic communication in a drug-related transaction, possession of a

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Record citations refer to the page numbers generated by the Court’s
electronic filing system.

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deadly weapon by a prohibited possessor, and forgery. (Doc. 1-1 at 3-4.)2 As part of his

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plea agreement, Petitioner agreed to cooperate in the prosecution of two cases, and the

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State agreed to advise the sentencing court “of the nature, extent, and value” of

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Petitioner’s cooperation. (Id. at 6.) The written plea agreement includes a provision

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stating that Petitioner agreed he was giving “up any motions, defenses or other matters

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which have been or could be asserted in this case regardless of their merit.” (Id. at 9.)

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The Honorable Michael O. Miller held a change of plea hearing on October 29,

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2012. (Doc. 1-1 at 12.)3 During the hearing, Judge Miller informed Petitioner that, by

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entering into the plea agreement, he was agreeing to a prison range of 10.5 to 18 years.

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(Id. at 17.) He explained that the State had agreed that the sentencing court could

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“consider [Petitioner’s cooperation] as a mitigating factor,” but that only the sentencing

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court could “determine whether something is a mitigating factor and should result in a

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lesser sentence” under the plea agreement. (Id. at 24.) Petitioner inquired as to what

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would happen if the State “didn’t meet up to their end of the agreement,” and Judge

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Miller indicated that Petitioner could move to withdraw from the plea agreement under

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those circumstances. (Id. at 25-26.) Judge Miller then asked Petitioner if anyone had

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made him any threats or promises to get him to enter into the plea agreement. (Id. at 29.)

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Petitioner responded: “Not threats. I mean not promise. But like we had discussed about

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mitigating—asking for the least sentence for testifying.” (Id.) Judge Miller stated that he

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understood, and then asked if anyone had made Petitioner promises not contained in the

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plea agreement. (Id.) Petitioner responded “No.” (Id.) Judge Miller found that the plea

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was entered into knowingly, intelligently, and voluntarily. (Id. at 39.)

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Prior to Petitioner’s sentencing hearing, the Supreme Court issued Florida v.

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Jardines, 569 U.S. 1 (2013), which holds that a trained police dog’s investigation of the

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Petitioner submitted an unsigned copy of a plea agreement as an exhibit to
his § 2254 Petition. (Doc. 1-1 at 3-11.) Although the plea agreement is unsigned, there
appears to be no dispute that it is the plea agreement entered into by Petitioner.
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Petitioner submitted a copy of the transcript of the change of plea hearing
as an exhibit to his § 2254 Petition. (Doc. 1-1 at 12-40.) Respondents do not dispute the
accuracy or completeness of the transcript. (See Doc. 14 at 2.)
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curtilage of a home is a search within the meaning of the Fourth Amendment. The results

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of a narcotic detection canine’s warrantless investigation of the curtilage of Petitioner’s

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residence were used to obtain a search warrant for the residence. (See Doc. 1-1 at 54-57.)

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Evidence obtained during execution of the search warrant appears to have formed the

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basis of the charges against Petitioner. Accordingly, Petitioner advised his trial attorney,

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Brick Storts, that he wished to withdraw from his plea agreement and move to suppress

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evidence based on Jardines.

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hearing on the grounds that he needed additional time to determine whether it would be

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appropriate to move to withdraw from the plea agreement based on Jardines. (Doc. 1-1

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at 1-2.) The State opposed the Motion to Continue, arguing that a plea agreement

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properly entered into should not be set aside because of changes in the law occurring

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after the plea. (Doc. 1-1 at 75-77.) It appears that the Motion to Continue was denied,

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although neither party has submitted a copy of the trial court’s ruling on the Motion. Mr.

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Storts never filed a motion to withdraw plea or a motion to suppress evidence.

Mr. Storts moved to continue Petitioner’s sentencing

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Petitioner’s sentencing hearing was held before the Honorable Scott H. Rash. The

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record contains only a partial transcript of the hearing. (Doc. 1-1 at 41-53; Doc. 14-1 at

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20-32.) The partial transcript does not reflect any discussion of Jardines, but it does

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show that, during his sentencing hearing, Petitioner explained to Judge Rash that, when

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he entered into his plea agreement, his understanding was that the State had promised to

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request that he receive the mitigated prison sentence of 10.5 years. (Doc. 1-1 at 43-47.)

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Petitioner averred that he would not have entered into the plea agreement if not for his

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understanding that the State would request the mitigated sentence. (Id. at 44, 51.) The

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prosecutor responded that he had never promised to make a specific sentencing

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recommendation and that, if he had, it would be written in the plea agreement. (Id. at 48-

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49.) The prosecutor further stated that he had never intended to foreclose his ability to

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argue that Petitioner deserved an aggravated sentence of 18 years—which is apparently

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what he did, although the portion of the transcript containing the prosecutor’s sentencing

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recommendation does not appear in the record before this Court. (Id. at 49.) Defense

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attorney Storts stated that the prosecutor had told him “he would not be opposed to the

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concept of a recommendation of a sentence” of 10.5 years, but that the prosecutor had not

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promised to request such a sentence. (Id. at 49-50.) Judge Rash asked Petitioner if he

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wished to withdraw from his plea agreement, and Petitioner stated that he did. (Id. at 51-

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52.) The prosecutor argued that there was no basis to continue Petitioner’s sentencing

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hearing because a motion to withdraw from the plea agreement would be baseless. (Id. at

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52.) Judge Rash then proceeded to sentence Petitioner. (Id. at 52-53.) Judge Rash found

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in aggravation that Petitioner’s crimes were done for pecuniary gain and in the presence

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of accomplices. (Id.) He found that Petitioner’s cooperation, remorse, and acceptance of

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responsibility were mitigating factors.

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presumptive terms on each count, with the longest term being 15.75 years, and with all

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sentences running concurrent. (Id.)

(Id. at 53.)

He sentenced Petitioner to the

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Petitioner, through post-conviction attorney Anne Elsberry, filed his of-right Rule

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32 Petition for Post-Conviction Relief (“PCR Petition”) on December 18, 2013. (Doc.

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14-1 at 2-11.)

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agreement that resolved his case was not knowing, intelligent, and voluntary, because at

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the time he entered into the plea he had been told by the prosecutor and his attorney that

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the State would support the mitigated sentence of 10.5 years, but that the State at

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sentencing requested the aggravated sentence of 18 years. (Id. at 2, 4-6.) Petitioner

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argued that he should have been allowed to withdraw from his plea agreement when the

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State breached its promise to request the mitigated sentence. (Id. at 7.) Petitioner also

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argued that trial counsel was ineffective in failing to file a motion to suppress and failing

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to request that Petitioner be allowed to withdraw from his plea agreement based on

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Jardines. (Id. at 2-4, 7-10.) The State responded on January 3, 2014. (Id. at 13-19.)

In the PCR Petition, Petitioner argued that his entry into the plea

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On January 8, 2014, Petitioner filed a pro se Motion to Supplement his PCR

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Petition. (Doc. 1-1 at 78-80.) In the Motion, Petitioner argued that: (1) his conviction

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was obtained in violation of his Fourth Amendment rights because the fruit of an illegal

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search was used to obtain a search warrant of his residence; (2) trial counsel rendered

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ineffective assistance in violation of Petitioner’s Sixth Amendment rights by failing to

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file a motion to suppress both before and after the Supreme Court’s ruling in Jardines;

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(3) trial counsel rendered ineffective assistance by telling Petitioner that the State had

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agreed to request a minimum sentence of 10.5 years; (4) Petitioner did not enter into his

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plea agreement knowingly, intelligently, and voluntarily; (5) the plea agreement was

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induced by the State’s promise to request the minimum sentence of 10.5 years; (6) the

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plea agreement was induced by the State’s use of illegally obtained evidence; and (7) the

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Supreme Court recognized a new constitutional principle and significantly changed the

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law when it rendered its decision in Jardines. (Id. at 79-80.) On February 11, 2014,

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Petitioner filed a Pro Se Supplement to the PCR Petition, in which he elaborated upon the

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arguments contained in his Motion to Supplement. (See Doc. 14-1 at 34-38.) Neither

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party submitted a copy of the trial court’s ruling on Petitioner’s Motion to Supplement,

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but the ruling on the PCR Petition indicates that the trial court denied leave to file a pro

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se Reply but nevertheless reviewed Petitioner’s pro se Reply. (Doc. 1-1 at 81 n.1.)4

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Judge Rash dismissed Petitioner’s PCR Petition on February 14, 2014. (Doc. 1-1

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at 81-82.) He found that the record did not support Petitioner’s argument that the State

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had agreed to recommend a mitigated sentence. (Id. at 81.) Judge Rash noted that, at his

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change of plea hearing, Petitioner stated that no one had made him any promises that

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were not contained in the plea agreement. (Id.) Judge Rash further noted that, even if the

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State had recommended a mitigated sentence of 10.5 years, the court would not have

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imposed it based on the contents of the presentence report. (Id.) With respect to

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Petitioner’s ineffective assistance of counsel argument, Judge Rash found that, by

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entering into his plea agreement, Petitioner expressly waived any right to raise all

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motions, defenses, and objections that he had asserted or could assert. (Id. at 82.) Judge

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Rash further found that a plea agreement should not be set aside because of changes in

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the law occurring after the plea. (Id.) Accordingly, Judge Rash held that trial counsel’s

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Based on the record before this Court, it appears that the pro se Reply
referred to by the trial court is the Pro Se Supplement to PCR Petition dated February 11,
2014.
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decision to not file a motion to suppress and to not move to withdraw from the plea did

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not fall below an objective standard of reasonableness. (Id.)

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A paralegal to Petitioner’s PCR attorney sent Petitioner a letter dated May 30,

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2014. (Doc. 14-2 at 27; Doc. 15 at 16.) The letter indicates that a copy of the trial

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court’s PCR ruling is enclosed, and then states:

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I apologize for the delay in getting this to you; however, we did not receive
a copy of the Ruling from the court back in February. We did not receive
this until today after I called the court to check on the status of the ruling.
(Doc. 14-2 at 27; Doc. 15 at 16.)

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On June 11, 2014, Petitioner filed a pro se Motion requesting permission to file a

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Petition for Review of the PCR ruling. (Doc. 14-2 at 29-30.) In the Motion, Petitioner

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stated that he received his PCR counsel’s letter containing a copy of the PCR ruling on

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June 1, 2014. (Id. at 29.)5 After summarizing the contents of the letter, Petitioner

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requested that the court toll the 30-day deadline for filing a Petition for Review so that

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the period for seeking review would commence on the date that Petitioner received notice

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of the PCR ruling. (Id. at 30.) On June 16, 2014, Judge Rash denied the Motion, without

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explanation and without citation to facts or authority. (Id. at 32.)

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On July 14, 2014, Petitioner filed a pro se Petition for Review (Doc. 14-2 at 2-25)

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and a pro se Motion to Extend Time to File a Petition for Review (id. at 34-36) in the

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Arizona Court of Appeals. In the Petition for Review, Petitioner raised substantially the

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same arguments that he raised in his PCR Petition and pro se supplemental filings. In the

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Motion to Extend Time, Petitioner asked the Court of Appeals to accept his Petition for

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Review and argued that his delay in filing the Petition was not due to his own neglect but,

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rather, due to the trial court’s delay in sending a copy of its PCR ruling to Petitioner and

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his PCR attorney. (Id. at 34-36.) On July 23, 2014, the Arizona Court of Appeals

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summarily dismissed the Petition for Review after holding—without explanation or

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citation to authority—that it was without jurisdiction to rule on the Motion to Extend

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In his Reply to Respondent’s Limited Answer to his § 2254 Petition,
Petitioner avers that he received the letter on June 2, 2014. (Doc. 15 at 4.)
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Time. (Id. at 38.)

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Petitioner filed the pending § 2254 Petition on February 19, 2015. (Doc. 1.) In

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the Petition, Petitioner raises the following claims: (1) trial counsel was ineffective in (a)

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providing Petitioner with erroneous advice regarding the effects of his plea agreement,

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and (b) failing to move to withdraw from the plea agreement after the Supreme Court

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issued Jardines; (2) the State violated the terms of Petitioner’s plea agreement by failing

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to request a mitigated sentence based on Petitioner’s cooperation in two cases;6 (3)

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Petitioner should have been allowed to withdraw from his plea agreement and file a

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motion to suppress based on Jardines. (Doc. 1 at 6-16.)

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II.

Legal Standard

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Because Petitioner’s § 2254 Petition was filed after April 24, 1996, the effective

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date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this case

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is governed by AEDPA. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).

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A § 2254 petition subject to AEDPA cannot be granted unless it appears that (1)

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the petitioner has exhausted all available state-court remedies, (2) there is an absence of

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available state corrective process, or (3) state corrective process is ineffective to protect

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the rights of the petitioner. See 28 U.S.C. § 2254(b)(1); Coleman v. Thompson, 501 U.S.

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722, 731 (1991). To properly exhaust state-court remedies, the petitioner must “fairly

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present” his claims to the state’s highest court in a procedurally appropriate manner.

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O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). In Arizona, a defendant who pleads

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guilty in a non-capital case waives his right to a direct appeal, and Rule 32 proceedings

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become the sole available avenue for exercising the defendant’s constitutional right to

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appellate review. Arizona v. Pruett, 912 P.2d 1357, 1359-60 (Ariz. App. 1995); see also

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Ariz. R. Crim. P. 32.1. In cases not carrying a life sentence or the death penalty, “claims

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of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona

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In this claim, Petitioner also argues that he would not have entered the plea
agreement if not for his understanding that the prosecution had promised to request a
mitigated sentence, and that he should have been allowed to withdraw from the plea
agreement when the prosecution failed to fulfill that promise. (Doc. 1 at 11.)
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Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.

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1999) (per curiam).

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A claim is fairly presented if the petitioner has described the operative facts and

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the federal legal theory on which the claim is based. See Picard v. Connor, 404 U.S. 270,

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277-78 (1971). A petitioner must make the federal basis of the claim explicit by citing

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specific provisions of federal law or federal case law or by citing state cases that

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explicitly analyze the same federal constitutional claim. Peterson v. Lampert, 319 F.3d

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1153, 1158 (9th Cir. 2003); Gatlin v. Madding, 189 F.3d 882, 887-88 (9th Cir. 1999).

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A claim is considered procedurally defaulted and thus precluded from federal

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review if (1) the claim was not presented in state court and no state remedies are currently

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available because the court to which the petitioner would be required to present the claim

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in order to meet the exhaustion requirement would find the claims procedurally barred

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under state law, or (2) the petitioner raised the claim in state court but the state court

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rejected the claim based on “independent” and “adequate” state procedural grounds. See

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Coleman, 501 U.S. at 729-32, 735 n.1; see also Beard v. Kindler, 558 U.S. 53, 55 (2009).

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“For a state procedural rule to be independent, the state law basis for the decision must

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not be interwoven with federal law.” Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.

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2003) (internal quotation marks omitted); see also Stewart v. Smith, 536 U.S. 856, 860

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(2002) (per curiam). “To be deemed adequate, the state law ground for decision must be

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well-established and consistently applied.” Bennett, 322 F.3d at 583; see also Johnson v.

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Mississippi, 486 U.S 578, 587 (1988) (to be deemed adequate, a state procedural rule

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must be “strictly or regularly followed” (internal quotation marks omitted)).

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Procedural default is an affirmative defense, and the State bears the ultimate

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burden of proving it. Bennett, 322 F.3d at 585-86. Accordingly, the State bears the

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burden of demonstrating “that the state procedural rule has been regularly and

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consistently applied.” Id. at 586. However, the petitioner bears a threshold burden of

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“asserting specific factual allegations that demonstrate the inadequacy of the state

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procedure, including citation to authority demonstrating inconsistent application of the

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rule.” Id. at 586.

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Because the doctrine of procedural default is based on comity rather than

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jurisdiction, federal courts retain the power to consider the merits of procedurally

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defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). However, courts will do so only if

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the petitioner demonstrates cause and prejudice, or a fundamental miscarriage of justice.

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Coleman, 501 U.S. at 750. To demonstrate cause, a petitioner must show that “some

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objective factor external to the defense impeded [his] efforts to comply with the State’s

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procedural rule.”

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prejudice, the petitioner must show that the constitutional violations alleged in his § 2254

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Petition “worked to his actual and substantial disadvantage, infecting his entire trial with

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error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982)

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(emphasis omitted). To establish that a fundamental miscarriage of justice would occur if

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a claim were not heard on the merits in federal court, a petitioner must demonstrate that

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“a constitutional violation has probably resulted in the conviction of one who is actually

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innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). To do so, the petitioner must

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“support his allegations of constitutional error with new reliable evidence—whether it be

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exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical

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evidence—that was not presented at trial.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th

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Cir. 2008).

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III.

Murray v. Carrier, 477 U.S. 478, 488 (1986).

To demonstrate

Discussion

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In their Limited Answer, Respondents argue that Petitioner’s claims are

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procedurally defaulted because the Arizona Court of Appeals dismissed his Petition for

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Review as untimely. Respondents further argue that Petitioner has not shown cause and

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prejudice or a miscarriage of justice to excuse the procedural default. In his Reply,

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Petitioner argues that the untimeliness of his Petition for Review to the Arizona Court of

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Appeals was caused by the Pima County Superior Court’s delay in sending a copy of the

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PCR ruling to Petitioner and his PCR attorney.

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....

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A.

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In Claim 1(a) of his § 2254 Petition, Petitioner argues that trial counsel rendered

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ineffective assistance by advising Petitioner that the State would ask the sentencing court

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for a mitigated sentence as part of Petitioner’s plea agreement. (Doc. 1 at 7.) Petitioner

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argued in his PCR Petition that he would not have accepted the plea if not for his belief

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that the State had agreed to request a mitigated sentence. (Doc. 14-1 at 5.) He also raised

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an ineffective assistance of counsel claim and alerted the trial court to the federal

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constitutional basis of the claim by citing Strickland v. Washington, 466 U.S. 668 (1984).

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(Doc. 14-1 at 7-8.) Petitioner did not clearly premise the ineffective assistance of counsel

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claim on trial counsel’s advice concerning the plea; however, Petitioner argued in his pro

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se Motion to Supplement that trial counsel fell below a competent standard of

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representation by advising Petitioner that the State had promised to request a mitigated

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sentence of 10.5 years, and that this advice induced Petitioner to accept the plea. (Doc. 1-

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1 at 79.) Petitioner also raised these arguments in his pro se Supplement to the PCR

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Petition. (Doc. 14-1 at 34-35.) See Clemmons v. Delo, 124 F.3d 944, 948-49 (8th Cir.

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1997) (finding fair presentation where post-conviction counsel omitted claims from post-

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conviction petition but petitioner filed a pro se supplemental brief bringing the claims to

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the attention of the state court). Furthermore, Petitioner raised this claim in his Petition

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for Review, citing to the Sixth Amendment and Hill v. Lockhart, 474 U.S. 52 (1985).

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(See Doc. 14-2 at 10-14, 16-18.) The Court finds that Petitioner fairly presented Claim

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1(a). Respondent does not argue otherwise.

Fair Presentation

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In Claim 1(b) of his § 2254 Petition, Petitioner argues that his trial counsel

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rendered ineffective assistance by failing to move to withdraw Petitioner’s plea and

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failing to move to suppress evidence pursuant to Jardines. (Doc. 1 at 7-8.) Petitioner

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fairly presented this claim in his PCR Petition (see Doc. 14-1 at 7-10) and in his Petition

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for Review (see Doc. 14-2 at 14-16). Respondent does not argue otherwise.

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In Claim 2 of his § 2254 Petition, Petitioner argues that the State violated the

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terms of his plea agreement by failing to advise the sentencing court of his cooperation,

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presenting only aggravating allegations, and requesting the maximum sentence of 18

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years. (Doc. 1 at 9-10.) Petitioner further argues that, even though he entered the plea

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agreement based on his understanding that the State would request a mitigated sentence

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and he had been told by Judge Miller that he could ask to withdraw from the plea

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agreement if he felt the State did not meet its end of the bargain, Judge Rash denied his

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request to withdraw from the plea agreement. (Id. at 10-11.) Petitioner fairly presented

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this claim in his PCR Petition (see Doc. 14-1 at 5-7) and in his Petition for Review (see

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Doc. 14-2 at 3, 5-6, 9-18).7 Respondent does not argue otherwise.

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In Claim 3 of his § 2254 Petition, Petitioner argues that he should have been

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allowed to withdraw from his plea agreement and move to suppress evidence based on

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Jardines. (Doc. 1 at 12-16.) Petitioner fairly presented this claim in his PCR Petition

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(see Doc. 14-1 at 7-10) and in his Petition for Review (see Doc. 14-2 at 3-5, 15-16, 19-

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25). Respondent does not argue otherwise.

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B.

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The trial court denied Petitioner’s claims on the merits in a reasoned decision.

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(Doc. 1-1 at 81-82.) The Arizona Court of Appeals thereafter dismissed Petitioner’s

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Petition for Review in a decision that reads, in its entirety:

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Independent and Adequate State Procedural Bar

Pursuant to Motion to Extend Time to File a Petition for Review of
Petitioner’s PCR Filed and Ruled On In The Pima County Superior Court,
and this court being without jurisdiction to rule on said motion,
ORDERED: The above-entitled petition for review is DISMISSED.
(Doc. 14-2 at 38.)

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Respondent assumes that the Court of Appeals denied Petitioner’s Petition for

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Review as untimely. However, the Court of Appeals did not expressly rule that the

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Although the Petition for Review focuses on the failure of defense counsel
to adequately advise Petitioner regarding the effects of the plea agreement, Petitioner
clearly argued that the State failed to fulfill its promise to request a mitigated sentence,
that Petitioner would not have agreed to the plea agreement if not for that promise, and
that Petitioner should have been allowed to withdraw from the plea agreement when the
State failed to fulfill the promise. (Doc. 14-2 at 3, 5-6, 9-13.) Petitioner also cited
federal law for the proposition that a plea which is not knowing and voluntary violates
due process. (Id. at 12-13.)
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Petition for Review was untimely. Instead, the Court of Appeals summarily dismissed

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the Petition for Review without explanation or citation to authority after finding that it

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lacked jurisdiction to rule on Petitioner’s Motion to Extend Time.

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“Where there has been one reasoned state judgment rejecting a federal claim, later

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unexplained orders upholding that judgment or rejecting the same claim” are presumed to

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“rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also

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Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir. 2014) (a state appellate court’s

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“summary denial of discretionary review, which generally does not state a reason for that

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denial, is not a ‘reasoned’ decision under AEDPA, and we must ‘look through’ that

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unexplained decision to the last court to have provided a ‘reasoned’ decision.”). Because

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the trial court rejected Petitioner’s claims in a reasoned decision, and the Arizona Court

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of Appeals summarily dismissed Petitioner’s Petition for Review without explanation or

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citation to authority, this Court presumes that the latter court’s unexplained order rested

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upon the same grounds as the trial court’s decision.

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“[S]trong evidence can refute” the presumption that federal courts will look

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through an unexplained order to the last reasoned state court decision. Ylst, 501 U.S. at

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804. For example, “it might be shown that, even though the last reasoned state-court

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opinion had relied upon a federal ground, the later appeal to the court that issued the

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unexplained order was plainly out of time, and that the latter court did not ordinarily

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waive such a procedural default without saying so.” Id. The Arizona Rules of Criminal

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Procedure require petitions for review to be filed in the Arizona Court of Appeals no later

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than 30 days after the entry of the trial court’s final decision on a Rule 32 petition. Ariz.

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R. Crim. P. 32.9(c)(1)(A). Petitioner’s Petition for Review was filed more than 30 days

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after the entry of the trial court’s decision denying his PCR Petition. The untimeliness of

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the Petition for Review, and the Arizona Court of Appeals’ reference to Petitioner’s

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Motion to Extend Time, lend support to Respondent’s assumption that the Arizona Court

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of Appeals dismissed the Petition for Review on timeliness grounds. However, for the

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reasons that follow, these circumstances fall short of the “strong evidence” necessary to

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rebut the presumption that this Court should look through the Arizona Court of Appeals’

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unexplained dismissal to the trial court’s reasoned decision. Ylst, 501 U.S. at 804.

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Rule 32.9(c)(3) of the Arizona Rules of Criminal Procedure requires that motions

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for extension of time to file petitions for review be filed in the trial court. However, the

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Arizona Court of Appeals routinely reviews trial courts’ adjudications of such motions

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for abuse of discretion. See, e.g., Arizona v. Morales, No. 2 CA-CR 2014-0078-PR, 2014

7

WL 1903164, at *1 (Ariz. App. May 12, 2014) (reviewing for abuse of discretion trial

8

court’s denial of request for leave to file untimely petition for review); Arizona v. Henry,

9

No. 2 CA-CR 2007-0242-PR, 2008 WL 4606543, at *1-2 (Ariz. App. Feb. 28, 2008)

10

(same); cf. Arizona v. Samaniego, No. 2 CA-CR 2013-0361-PR, 2014 WL 249565, at *2

11

(Ariz. App. Jan. 22, 2014) (considering whether trial court abused its discretion in

12

denying untimely motion for reconsideration); Arizona v. Mesa, No. 2 CA-CR 2011-

13

0171-PR, 2011 WL 4379428, at *6 (Ariz. App. Sept. 16, 2011) (same); see also Arizona

14

v. Grange, 635 P.2d 843, 845 (Ariz. 1981) (finding valid reason for noncompliance with

15

timing requirements of Rule 32.9); Arizona v. Bann, 2010 WL 1493109, at *3 (Ariz. App.

16

Apr. 14, 2010) (remanding for trial court to determine whether petitioner “received

17

timely notice” of order and, “if he did not, to grant him an additional extension of time”).

18

It is unclear why, in Petitioner’s case, the Arizona Court of Appeals did not review for

19

abuse of discretion the trial court’s denial of Petitioner’s request for an extension of time

20

to file a petition for review.

21

The trial court’s unexplained denial of Petitioner’s request for an extension of time

22

is equally perplexing. The Arizona Supreme Court has held that the time limits of Rule

23

32.9 “are not jurisdictional,” and that a late filing may be allowed “if a valid reason for

24

non-compliance” with the time limits is present. Arizona v. Pope, 635 P.2d 846, 848

25

(Ariz. 1981) (internal quotation marks and alteration omitted); see also Arizona v Padilla,

26

859 P.2d 191, 193 (Ariz. App. 1993) (taking jurisdiction of untimely petition for review).

27

Delayed receipt of a mailed copy of a ruling is a valid reason for non-compliance with the

28

time limits of Rule 32.9. See Arizona v. Vasquez, 690 P.2d 1240, 1242 (Ariz. App.

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1

1984); see also Bann, 2010 WL 1493109, at *2-3 (lack of notice of a deadline constitutes

2

a valid reason for failing to meet the deadline). In fact, Arizona courts have determined

3

that the applicable time periods of Rule 32.9 commence “upon the mailing by the clerk of

4

the trial court’s rulings.”

5

2452902, at *4 (D. Ariz. June 2, 2014) (citing Arizona v. Byers, 613 P.2d 299, 301 (Ariz.

6

App. 1980), overruled on other grounds by Pope, 635 P.2d at 849); see also Arizona v.

7

Zuniga, 786 P.2d 956, 957 (Ariz. 1990).8

Smith v. Ryan, No. CV 13-00008-TUC-BPV, 2014 WL

8

Petitioner properly filed with the trial court a motion to extend the time for filing a

9

petition for review. See Ariz. R. Crim. P. 32.9(c)(3). In the Motion, Petitioner explained

10

that he did not receive a copy of the court’s PCR ruling until June 1, 2014, and he

11

summarized the contents of the letter he had received from his PCR attorney.

12

Accordingly, Petitioner presented a valid reason for non-compliance with Rule 32.9’s

13

time limits: namely, that neither he nor his PCR counsel had received timely notice of the

14

PCR ruling, and that his PCR counsel notified him of the ruling after the 30-day deadline

15

for filing a petition for review had already expired.

16

Petitioner had followed the procedurally appropriate mechanism for seeking an extension

17

of time and had presented a valid reason for delay, the trial court denied Petitioner’s

18

Motion for Extension of Time without explanation and without citation to any authority

19

or evidence.

Notwithstanding the fact that

20

Respondent argues that the trial court’s summary denial of Petitioner’s Motion for

21

Extension of Time “suggests the trial court had, in fact, sent counsel a copy of the [PCR]

22

ruling,” and that “[t]o assume otherwise forces the untenable conclusion the trial court

23

deliberately obstructed Petitioner’s access to the courts due to its own procedural failure.”

24

(Doc. 14 at 7 n.2.) Respondent cites no authority to support this argument, and this Court

25

disagrees that it is required to assume that the trial court’s summary denial of Petitioner’s

26
27
28

8

“In the absence of an affirmative showing of a mailing date,” Arizona
courts presume that “the mailing occurred on the date the order was entered.” Smith,
2014 WL 2452902, at *4. However, this presumption is rebuttable. Ta Yoat Ni v. Ryan,
No. CV-13-01155-PHX-PGR (FJM), 2014 WL 2569139, at *8 (D. Ariz. June 9, 2014).
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1

Motion for Extension of Time is equivalent to a factual finding that the trial court timely

2

sent PCR counsel a copy of the PCR ruling. If the trial court had made that factual

3

finding, it could easily have so stated. Furthermore, if evidence exists to support a

4

conclusion that the trial court timely mailed a copy of the PCR ruling, Respondent is in

5

the best position to identify that evidence and bring it to this Court’s attention.

6

Respondent has failed to do so. The only relevant evidence in the record indicates that

7

Petitioner’s PCR counsel did not receive a copy of the PCR ruling until May 30, 2014,

8

and that Petitioner did not receive a copy of the ruling until June 1, 2014.

9

Even if the Court were to attribute the delayed notice of the PCR ruling to the

10

office of Petitioner’s PCR counsel, as Respondent urges, the Arizona Supreme Court has

11

held that the failure of an attorney’s legal secretary to notify the attorney of a ruling is a

12

valid reason for delay in petitioning for review of that ruling. See Pope, 635 P.2d at 849.

13

Furthermore, as discussed in more detail below, Petitioner had a constitutional right to

14

the effective assistance of counsel during his of-right Rule 32 proceedings, Pruett, 912

15

P.2d at 1359-60, and PCR counsel had a duty to notify Petitioner of the resolution of

16

those proceedings in a timely fashion so as to preserve Petitioner’s ability to seek review,

17

Smith v. State of Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 434 (6th Cir. 2006).

18

A state court’s invocation of a state procedural rule is not adequate to preclude

19

federal review where the record reveals that the petitioner complied with the rule invoked

20

by the state. See Burrus v. Gonzalez, 172 F.3d 55, at *1 (9th Cir. Mar. 2, 1999) (mem.);

21

see also NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 296-302 (1964). Here, even

22

if the Court were to interpret the Arizona Court of Appeals’ ambiguous order as invoking

23

a timeliness bar, the record shows that Petitioner complied with state-law requirements

24

for seeking an extension of time to file a petition for review of the trial court’s PCR

25

ruling, and he presented a valid reason for delay.9

The trial court provided no

26
27
28

9

The Court acknowledges that Petitioner filed his Petition for Review more
than 30 days after he received actual notice of the PCR ruling. However, he filed for an
extension of time within days of receiving notice of the ruling, and he filed the Petition
for Review within 30 days of the trial court’s ruling on the motion for extension of time.
- 15 -

1

explanation and no citation to facts or authority to support its denial of Petitioner’s

2

Motion for Extension of Time. Similarly, the Court of Appeals provided no explanation

3

and no citation to facts or authority to support its finding that it lacked jurisdiction to

4

review the trial court’s denial of the time extension. Under the circumstances, the Court

5

cannot conclude that the Arizona Court of Appeals’ unexplained dismissal of Petitioner’s

6

Petition for Review was grounded on an independent and adequate state procedural rule.

7

Accordingly, the Court finds that Petitioner’s claims are not procedurally defaulted.

8

C.

9

Even if Petitioner’s claims are procedurally defaulted—which the Court finds they

10

are not—Petitioner has established cause and prejudice to overcome any procedural

11

default.10

Cause and Prejudice

12

To establish cause to excuse the procedural default, Petitioner must show that

13

“some objective factor” that is “external” to him and “cannot fairly be attributed to him”

14

impeded his ability to comply with the State’s procedural rule. See Coleman, 501 U.S. at

15

753; see also Murray, 477 U.S. at 488. Petitioner has presented evidence indicating that

16

the trial court’s delay in mailing a copy of the PCR ruling, and its subsequent denial of

17

Petitioner’s Motion for Extension of Time, impeded Petitioner’s ability to comply with

18

Rule 32.9’s 30-day deadline for filing a Petition for Review. Once Petitioner received

19

notice of the PCR ruling, he diligently attempted to obtain an extension of time to file a

20

petition for review, and he did so through the proper state procedural mechanisms;

21

nevertheless, the trial court thwarted his attempt without explanation. See Murray, 477

22

U.S. at 488 (“interference by officials” which “made compliance” with a state procedural

23

rule “impracticable” constitutes cause). The Court finds that Petitioner has sufficiently

24

shown that his ability to comply with the timing requirements of Rule 32.9 of the Arizona

25

Rules of Criminal Procedure was impeded by external factors that cannot fairly be

26

attributed to him.

27
10

28

Petitioner does not assert innocence and thus cannot establish that a
fundamental miscarriage of justice would occur if his claims were not heard on the merits
in federal court. See Schlup, 513 U.S. at 327.
- 16 -

1

Even if PCR counsel, rather than the trial court, were responsible for the delay in

2

notifying Petitioner of the PCR ruling—a factual finding that the record does not

3

support—Respondent is incorrect that the errors of PCR counsel are attributable to

4

Petitioner and thus cannot establish cause to excuse a procedural default. Respondent

5

cites Smith v. Baldwin, in which the Ninth Circuit noted that there is no constitutional

6

right to an attorney in state post-conviction proceedings and, therefore, that attorney

7

ineffectiveness in such proceedings is not considered cause for the purposes of excusing a

8

procedural default. 510 F.3d 1127, 1146-47 (9th Cir. 2007).11 However, in the present

9

case, as a result of his guilty plea, Petitioner’s Rule 32 proceedings were of-right

10

proceedings during which Petitioner had a constitutional right to effective assistance of

11

counsel. See Pruett, 912 P.2d at 1359-60 (a pleading defendant “is constitutionally

12

entitled to the effective assistance of counsel in his first [of-right] petition for post-

13

conviction relief”). Constitutionally ineffective assistance of counsel constitutes “cause

14

for a procedural default.” Murray, 477 U.S. at 488; see also Manning v. Foster, 224 F.3d

15

1129, 1133 (9th Cir. 2000). Failing to notify a client of an appealable order prior to

16

expiration of the deadline for appealing that order may constitute ineffective assistance of

17

counsel. See Smith, 463 F.3d at 434-35 (holding that counsel’s delayed notice to client of

18

appealable decision constituted ineffective assistance); see also Strickland, 466 U.S. at

19

688 (counsel has a duty “to keep the defendant informed of important developments”).12

20
21
22
23
24
25

11

The Supreme Court established a limited exception to this rule in Martinez
v. Ryan, holding that “[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 566 U.S. 1, 18 (2012). A Martinez analysis in unnecessary
in the present case because, as discussed above, Petitioner had a constitutional right to
counsel during his of-right Rule 32 proceedings.
12

26
27
28

Ineffective assistance of counsel claims must themselves be exhausted
before they can establish cause for the procedural default of other claims. Murray, 477
U.S. at 489; Edwards v. Carpenter, 529 U.S. 446, 453 (2000). It does not appear that
Petitioner has exhausted an ineffective assistance of of-right PCR counsel claim.
However, neither party has addressed that issue, nor have the parties addressed whether
Petitioner could satisfy the cause-and-prejudice standard with respect to such a claim.
See Edwards, 529 U.S. at 453.
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1

To establish prejudice, Petitioner must show that the constitutional violations

2

alleged in his § 2254 Petition “worked to his actual and substantial disadvantage,

3

infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at

4

494 (emphasis omitted) (quoting Frady, 456 U.S. at 170).

5

With respect to his claim that trial counsel rendered ineffective assistance by

6

providing Petitioner with erroneous advice regarding the effects of his plea agreement,

7

the prejudice inquiry for purposes of procedural default is the same as the prejudice

8

inquiry under Strickland. See Vansickel v. White, 166 F.3d 953, 958-59 (9th Cir. 1999)

9

(applying Strickland prejudice inquiry in evaluating cause and prejudice to excuse

10

procedural default).

11

process and enters his plea upon the advice of counsel, the voluntariness of the plea

12

depends on whether counsel’s advice ‘was within the range of competence demanded of

13

attorneys in criminal cases.’” Hill, 474 U.S. at 56 (quoting McMann v. Richardson, 397

14

U.S. 759, 771 (1970)). To show prejudice on a claim of deficient advice during the plea

15

process, Petitioner “must show that there is a reasonable probability that, but for

16

counsel’s errors, he would not have pleaded guilty and would have insisted on going to

17

trial.” Id. at 59. Petitioner has made that showing—at his sentencing hearing, he clearly

18

stated that he would not have agreed to the plea agreement if not for his understanding

19

that the prosecution would request a mitigated sentence, and he specifically asked to

20

withdraw from the plea agreement. (Doc. 1-1 at 43-44, 51-52.)

Where “a defendant is represented by counsel during the plea

21

To show prejudice with respect to his claim that trial counsel rendered ineffective

22

assistance by failing to move to suppress evidence, Petitioner must show that “his Fourth

23

Amendment claim is meritorious and that there is a reasonable probability that the verdict

24

would have been different absent the excludable evidence.” Kimmelman v. Morrison,

25

477 U.S. 365, 375 (1986). Petitioner has shown, based on Jardines, that the warrantless

26

canine sniff of the curtilage of his home likely violated the Fourth Amendment. Probable

27

cause to issue a search warrant for Petitioner’s home was based in part on the results of

28

the dog sniff.

(Doc. 1-1 at 54-57.)

Accordingly, Petitioner has demonstrated a

- 18 -

1

reasonable probability that, had trial counsel filed a motion to suppress, the evidence

2

obtained as a result of the search warrant would have been excluded as the fruit of an

3

illegal search. Because that evidence appears to have formed the basis of the charges

4

against Petitioner, Petitioner has also demonstrated a reasonable probability that, without

5

the excludable evidence, there would have been insufficient evidence for a conviction.

6

There is some tension between Petitioner’s argument that his plea agreement was

7

not knowing and voluntary and his argument that the prosecution breached the plea

8

agreement. The former argument requires Petitioner to show that he mistakenly believed

9

that the prosecution had promised to request a mitigated sentence, and that he would not

10

have entered his plea agreement if not for that mistaken belief. To establish prejudice on

11

that claim, Petitioner must show that he would not have pled guilty if not for his belief

12

that the prosecution had promised to request a mitigated sentence. As discussed above,

13

Petitioner has made that showing. The latter argument requires Petitioner to show that

14

the prosecution promised to request a mitigated sentence of 10.5 years and then failed to

15

uphold that promise. “[W]hen a plea rests in any significant degree on a promise or

16

agreement of the prosecutor, so that it can be said to be part of the inducement or

17

consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257,

18

262 (1971). In its PCR ruling, the trial court stated that it would not have imposed a

19

mitigated sentence even if the prosecution had requested it. Although the trial court’s

20

statement weighs against a finding of prejudice on a claim that the prosecution breached

21

the plea agreement, under similar circumstances the Supreme Court has remanded for the

22

state court to either allow withdrawal from the plea or require specific performance by

23

the prosecution at a sentencing hearing before a different judge. See id. at 262-63

24

(remanding even though sentencing judge had stated that prosecutor’s recommendation

25

did not influence him).

26

because if he were to prove the claim, he would be entitled to either withdraw from his

27

plea or benefit from specific performance of the prosecution’s alleged promise at a

28

resentencing hearing before a different judge.

Accordingly, Petitioner has shown prejudice on this claim,

- 19 -

1

It is not clear that Petitioner can show a federal constitutional violation with

2

respect to his final claim that he should have been allowed to withdraw from his plea and

3

file a motion to suppress under Jardines. However, it appears that the prejudice flowing

4

from such a claim is equivalent to the prejudice flowing from the ineffective assistance of

5

counsel claim in Claim 1(b). Accordingly, the Court finds that Petitioner has adequately

6

shown prejudice for purposes of the cause and prejudice inquiry.

7

D.

8

The Court finds that Petitioner fairly presented his federal constitutional claims to

9

the state courts and that the claims are not procedurally defaulted because the Arizona

10

Court of Appeals’ summary dismissal of the claims did not rest on an independent and

11

adequate state procedural bar. In the alternative, the Court finds that Petitioner has

12

sufficiently demonstrated cause and prejudice to excuse any procedural default.

Conclusion

13

Accordingly,

14

IT IS ORDERED that Respondent’s request that the § 2254 Petition be dismissed

15

as procedurally defaulted (Doc. 14 at 1, 9) is denied.

16

IT IS FURTHER ORDERED that Respondent shall file an Answer addressing

17

the merits of Petitioner’s habeas claims on or before March 16, 2018. The Answer must

18

fully comply with all of the requirements of Rule 5 of the Rules Governing 2254 Cases.

19

Respondent shall attach to the Answer all available relevant transcripts, including the full

20

transcript of Petitioner’s sentencing hearing.

21

Respondent must submit a narrative summary of the evidence. See Rule 5(c) of the Rules

22

Governing 2254 Cases.

23

....

24

....

25

....

26

....

27

....

28

....

- 20 -

If a transcript cannot be obtained,

1
2
3

IT IS FURTHER ORDERED that Petitioner may file a Reply to Respondent’s
Answer on or before April 16, 2018.
Dated this 6th day of February, 2018.

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