Opinion
CV-21-01074-PHX-JJT (ESW)
01-19-2022
Jandin Raul Munoz, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge.
Pending before the Court is Jandin Raul Munoz's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Docs. 1, 5). Respondents have answered (Doc. 13), and Petitioner has replied (Doc. 17). For the reasons explained herein, it is recommended that the Petition (Doc. 1) be denied.
I. BACKGROUND
On August 16, 2016, a Maricopa County Grand Jury indicted Petitioner on the following five counts: (i) one count of criminal damage (Count One); (ii) two counts of assault (Counts Two and Four); (iii) one count of kidnapping (Count Three), and (iv) one count of sexual assault (Count Five). (Doc. 13-1 at 5-7). Following trial, a jury found Petitioner guilty as charged as to Counts One, Two, Four, and Five. (Id. at 16-17). As to Count Three, the jury found Petitioner guilty of the lesser-included offense of unlawful imprisonment. (Id. at 16-17). The trial court found that the State proved that Petitioner had a prior felony conviction for attempted aggravated domestic violence. (Id. at 24). The trial court sentenced Petitioner to a total of 10.5 years in prison on Counts Three and Five and imposed jail terms for the remaining counts. (Id. at 25-26). The trial court also revoked Petitioner's probation imposed for a stalking conviction in a separate 2015 criminal case and sentenced Petitioner to a consecutive one-year prison term. (Id. at 304-05).
Although the trial court also found that Petitioner had a prior felony conviction for stalking, the trial court did not consider it for sentencing purposes as the State only alleged one historical prior felony conviction. (Doc. 13-1 at 23-24).
Maricopa County Superior Court Case No . CR2015-121642-001.
Petitioner filed direct appeals concerning his 2017 convictions and the revocation of probation in the 2015 case. Those appeals were subsequently consolidated. (Id. at 317). Petitioner raised one issue on appeal: whether the trial court fundamentally erred when it revoked Petitioner's probation on the 2015 stalking conviction. (Id. at 319-50). On June 5, 2018, the Arizona Court of Appeals affirmed Petitioner's sentence on the stalking conviction in the 2015 case. (Id. at 378-83). Petitioner did not seek further review by the Arizona Supreme Court.
On May 8, 2017, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id. at 385). The trial court appointed counsel. (Id. at 387-89). Petitioner's counsel filed a PCR Petition on July 30, 2018 that asserted that Petitioner's trial counsel provided ineffective assistance by failing to sufficiently communicate and discuss the advantages and disadvantages of the State's offered plea agreement. (Id. at 399-401). On January 28, 2020, following an evidentiary hearing, the trial court denied relief. (Doc. 13-2 at 161-69). The trial court denied Petitioner's request for rehearing. (Id. at 174). Petitioner filed a Petition for Review in the Arizona Court of Appeals. (Id. at 176-99). On September 29, 2020, the Arizona Court of Appeals granted review, but denied relief. (Id. at 215). The Arizona Supreme Court denied Petitioner's request for further review. (Id. at 239).
Petitioner initiated additional PCR proceedings in July 2020, December 2020, and February 2021, which the trial court dismissed. (Id. at 260-62, 264-67, 269-71, 273-74, 276-93, 295-312; Doc. 13-3 at 3-5).
In June 2021, Petitioner timely filed this federal habeas proceeding. (Doc. 1). As recounted in the Court's Screening Order (Doc. 6), Petitioner presents a single claim for habeas relief that alleges the ineffective assistance of counsel. Respondents filed their Answer on September 13, 2021. (Doc. 13). Petitioner filed a Reply on November 8, 2021. (Doc. 17). Although no affirmative defenses are raised, Respondents assert that Petitioner's habeas claim is without merit.
II. LEGAL STANDARDS
A. Reviewing Habeas Claims on the Merits
In reviewing the merits of a habeas petitioner's claims, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
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.28 U.S.C. § 2254(d)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). A state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (as amended) (internal quotation marks and citation omitted).
B. Analyzing the Merits of Habeas Claims Alleging the Ineffective Assistance of Counsel
The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). In the habeas context, the issue is whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the [ineffective assistance of counsel] claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 882 F.3d 778, 825 (9th Cir. 2018) (internal quotation marks and citation omitted).
In assessing the performance factor of Strickland's two-part test, judicial review “must be highly deferential” and the court must try not “to second-guess counsel's assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and citation omitted). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers “whether there is any reasonable argument” that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012).
To establish the prejudice factor of Strickland's two-part test, a petitioner must demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In other words, it must be shown that the “likelihood of a different result [is] substantial, not just conceivable.” Richter, 562 U.S. at 112.
III. DISCUSSION
In his single ground for habeas relief, Petitioner asserts that his trial counsel provided ineffective assistance in connection with the State's offered plea bargain.
On the morning of trial, the State made two plea offers in which Petitioner would agree to either: (i) plead guilty to kidnapping, with no stipulation as to sentencing or (ii) plead guilty to aggravated assault, as a Class 6 felony with no prior convictions, and with stipulations that Petitioner would serve a sentence in the Department of Corrections and that there would be a probation “tail” on the kidnapping charge. (Doc. 13-1 at 62-63). Petitioner rejected both offers. (Id.). In the Petition, Petitioner states that:
Trial counsel told Petitioner that even though the proposed plea offer of probation was (1) for a non-sexual/non sex-registrable offense, wherein (2) there was no allegation of sexual motivation filed, nor (3) any stipulation as to terms, the trial court could nevertheless impose ‘sex offender terms' as a condition of that proposed probation.(Doc. 1 at 6). Petitioner asserts that if he accepted the State's plea offer providing for a probation “tail” on the kidnapping charge, the trial court would have abused its discretion if it imposed sex offender terms as a condition of probation. Petitioner states that his trial counsel did not advise him of any argument indicating that the “trial court should have no discretion to impose sex offender terms on probation had he accepted the [plea] on the basis that sex offender terms would not be warranted, nor bear a reasonable relationship whatever to the purposes of his probation given the facts and circumstances of his case.” (Doc. 17 at 13).
“If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 566 U.S. 156, 168 (2012); Missouri v. Frye, 566 U.S. 134, 141 (2012) (explaining that the negotiation of a plea bargain is “a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel”). If counsel has misadvised a defendant about the law during a plea negotiation, or improperly coerced a defendant to accept a plea bargain, counsel's performance may be found deficient. See Lafler, 566 U.S. at 162 (counsel's erroneous legal advice about possibility of conviction that led to rejection of plea offer constituted deficient performance). To show that prejudice resulted from the ineffective assistance of counsel “where a plea offer has lapsed or been rejected because of counsel's deficient performance, [a petitioner] must demonstrate a reasonable probability” that (i) he “would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel” and (ii) “the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.” Frye, 566 U.S. at 147.
Rule 27.1 of the Arizona Rules of Criminal Procedure permits the sentencing court to impose conditions on a probationer that promote rehabilitation and protect any victim. In State v. Smith, 542 P.2d 1115, 1118 (1975), the Arizona Supreme Court explained:
Probation is a matter of legislative grace. It is a sentencing alternative which a court may use in its sound judicial discretion when the rehabilitation of the defendant can be accomplished with restrictive freedom rather than imprisonment. The court can surround probation with restrictions and requirements which a defendant must follow to retain his probationary status.
“[U]nless the terms of probation are such that they violate fundamental rights or bear no reasonable relationship whatever to the purpose of probation over incarceration, the appellate courts will not interfere with the trial court's exercise of discretion in the formulation of the terms and conditions of probation.” State v. Turner, 688 P.2d 1030, 1036 (Ariz.Ct.App. 1984). A condition of probation that “impinges on but does not violate the defendant's fundamental rights . . . may still be constitutional.” State v. Kessler, 13 P.3d 1200, 1205 (Ariz.Ct.App. 2000). “The question is whether there is a reasonable nexus between the conditions imposed and the goals to be achieved by the probation.” State v. Davis, 579 P.2d 1110, 1112 (Ariz. Court. App. 1978). A court will not “strike down conditions of release, even if they implicate fundamental rights, if such conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism.” Kessler, 13 P.3d at 1205 (internal quotation marks and citation omitted); see also Reed-Kaliher v. Hoggatt, 332 P.3d 587, 590 (Ariz.Ct.App. 2014) (explaining that Arizona Court of Appeals reviews “trial court's imposition of conditions of probation for an abuse of discretion and generally will not reverse its imposition of conditions unless the terms ‘violate fundamental rights or bear no reasonable relationship whatever to the purpose of probation over incarceration.'”).
Here, Petitioner states that in this proceeding, “the question presented is one purely of law, and does not turn on the resolution of disputed facts.” (Doc. 1 at 11). Petitioner concedes that “the general rule is that the trial court has discretion to impose terms of probation if they bear a reasonable relationship to the purposes of probation[.]” (Id.). However, Petitioner contends that “the specific question here has been the subject of conflicting unpublished decisions.” (Id.). During briefing on Petitioner's PCR Petition, the parties discussed two unpublished memorandum decisions issued by the Arizona Court of Appeals. Petitioner cited State v. Necoechea, No. 2 CA-CR 2012-0103-PR, 2012 WL 3529191 (Ariz.Ct.App. Aug. 15, 2012) and the State cited State v. Mendoza, No. 2 CA-CR 2007-0309, 2008 WL 5255887 (Ariz.Ct.App. 2008). (Doc. 132 at 143-44, 156)
In Necoechea, the defendant pled guilty in 2006 to attempted sexual assault and attempted armed robbery. 2012 WL 3529191, at *1. The trial court sentenced the defendant to a 4.5-year sentence on the attempted sexual assault conviction, followed by a five-year probationary term on the attempted armed robbery conviction. The trial court approved the parties' agreement that the defendant would not be required to abide by sex offender conditions while on probation. Id.
The defendant was released from prison and placed on probation in March 2009. While on probation, the defendant pled guilty to new charges that the trial court found constituted a violation of his probation. The trial court reinstated intensive probation on the 2006 attempted armed robbery conviction, to begin upon his release from the newly imposed sentences. Id. The trial court required the defendant to comply with sex offender conditions while on probation. The defendant then sought post-conviction relief. The defendant asserted that the imposition of sex offender terms on probation violated his right to due process and the separation of powers, denied him the benefit of his plea bargain, and that his counsel was ineffective by failing to pursue these claims. The trial court denied relief, and the defendant appealed.
On appeal, the Arizona Court of Appeals found that the offense of attempted armed robbery does not trigger sex offender registration under Arizona law, and violation of probation for that offense would not permit the court to modify probation by imposing the sex offender conditions. Id. The Court concluded that the trial court abused its discretion by requiring that a defendant comply with the special terms of sex offender registration while on probation for attempted armed robbery.
In Mendoza, the Arizona Court of Appeals rejected a defendant's argument that probation conditions “should be related to the offenses for which a defendant has been convicted.” 2008 WL 5255887, at *4. The defendant was convicted on burglary and theft charges, and the defendant had no prior convictions for sexual offenses. The defendant asserted that the trial court's imposition of “sex-offender evaluation and treatment conditions” was “an inappropriate exercise of [its] discretion.” Id. The Court found that the defendant is “mistaken” as “[p]robation conditions need only be related to the purpose of probation” and “they need not relate to the offense for which [the defendant] was convicted.” Id. (internal quotation marks and citation omitted).
The Court of Appeals noted that the defendant had prior arrests for indecent exposure and attempted sexual assault and a conviction for criminal trespass where he had looked into a neighbor's bathroom window. The Court also noted that in the present case, the defendant loitered outside the victim's house after the burglary and peered through her windows. The Court recounted that in setting the defendant's probation conditions, the trial court expressed its concern about the implications and pattern of the defendant's behavior and its desire to “make sure [he would] get the kind of treatment that is going to make this community safe.” Id. (citing State v. Kessler, 13 P.3d 1200, 1205 (Ariz.Ct.App. 2000) (probation conditions appropriate if “‘reasonably related to the ends of rehabilitation and protection of the public from recidivism'”). The Court affirmed the trial court's conditions of probation. Id.
In denying Petitioner's request for PCR relief, the trial court stated:
The last state court decision reviewing Petitioner's habeas claim is the September 29, 2020 Arizona Court of Appeals ruling that affirmed the trial court's dismissal of Petitioner's first PCR proceeding. (Doc. 13-1 at 215). Because the Arizona Court of Appeals adopted the trial court's decision, the U.S. District Court may review the trial court's decision as part of the review of the Arizona Court of Appeals' decision. Amado v. Gonzalez, 758 F.3d 1119, 1130 (9th Cir. 2014) (explaining that when the last reasoned decision is a state appellate court decision which adopts or substantially incorporates lower state court decisions, the lower state court decisions may be reviewed as part of the review of the state appellate court's decision).
Defendant cites a memorandum decision in which the Court of Appeals remanded a sentencing where the trial judge imposed a probation term mandating an individual defendant - who had been sentenced on an Attempted Armed Robbery -to comply with his unrelated sex offender registration requirements. See, e.g., State v. Necoechea, 2012 WL 3529191 (App. 2012). In that case, because registration was not mandated by the Attempted Armed Robbery offense, the Court of Appeals reasoned that compliance with registration was an impermissible condition of probation for Attempted Armed Robbery. The question here is somewhat different, i.e., whether this Defendant's sentencing judge would have retained the discretion to impose probationary sex offender terms if they were warranted. This Court agrees with the
assessment of the Defendant's trial counsel that a sentencing judge would have precisely this sort of discretion. See, e.g., State v. Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329, 1330 (1977) (sentencing judge has a great deal of discretion to impose probation terms as long as they do not “violate basic fundamental rights or bear no relationship whatever to the purpose of probation over incarceration”). More significantly, this Court finds it highly dubious that the mere possibility of temporary sex offender probation - standing alone - formed the overriding rationale for the Defendant's decision to reject multiple plea offers that were all significantly better than the consequences he faced after trial. See Missouri v. Frye, 566 U.S. 134, 147 (2012).(Doc. 13-2 at 167 n. 8) (emphasis in original). The trial court found that Petitioner “was thoroughly apprised of the costs and benefits associated with the plea offers.” (Id.).
The undersigned finds that the trial court correctly stated in its decision that a sentencing judge would have retained the discretion to impose probationary sex offender terms if Petitioner accepted the plea agreement. There is no binding authority showing that the imposition of such terms in Petitioner's case would have been an abuse of discretion. Although Petitioner relies on the unpublished memorandum decision in Necoechea to support his position, Necoechea is not on point and Petitioner's argument is inconsistent with the unpublished decision in Mendoza. Moreover, neither one of those cases constitute precedential authority. Ariz. R. Sup. Ct. 111(c) (“Memorandum decisions of Arizona state courts are not precedential” and parties may only cite to unpublished memorandum decisions issued on or after January 1, 2015 “for persuasive value” if “no opinion adequately addresses the issue before the court”). Petitioner has failed to show that trial counsel's advice to Petitioner during plea negotiations fell below a standard of reasonableness under prevailing professional norms. Clark, 769 F.3d at 725. Accordingly, the state courts' rejection of Petitioner's ineffective assistance of counsel claim is not contrary to, or involved an unreasonable application of, Strickland. The undersigned does not find that the state courts' decision rests on an unreasonable determination of the facts based on the evidence in the record. It is recommended that the Court deny the Petition.
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) be DENIED.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a substantial showing of the denial of a constitutional right in his claim for relief.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.