REPORT AND RECOMMENDATION

DAVID K. DUNCAN, Magistraten Judge.

TO THE HONORABLE DOUGLAS L. RAYES, U. S. DISTRICT JUDGE:

Guillermo Ramos-Perez filed a petition for Writ of Habeas Corpus challenging his conviction and sentence, pursuant to a plea agreement, for possession of marijuana for sale and alleging that he received ineffective assistance of counsel. Respondents contend that he is not entitled to relief. As described below, the Court recommends that his Petition be denied and dismissed with prejudice.

Background

In 2016, Ramos-Perez entered a plea of guilty in Maricopa County Superior Court to one count of possession of marijuana for sale, a class 3 felony. (Doc. 10, Exs. C, D, & E) Through both the plea and sentencing proceedings, Ramos-Perez was assisted by the Court's interpreter. (Doc. 10, Ex. D at 18) The Court asked Ramos-Perez during the plea hearing if he understood his interpreter and he replied that he did. (Id.) During the plea colloquy, Ramos-Perez was asked twice by the Court if he needed to speak with his counsel in private: once after the State offered to drop the imprisonment time in the plea agreement to six and a half years, and once after the State agreed to a plea for a range of six to seven years. (Id. at 16-17) The Court reviewed with him the consequences of entering a plea of guilty: the possible range of sentences for the offense, all the constitutional rights waived, the waiver of a right to direct appeal to the Arizona Court of Appeals, and the availability of a Post-Conviction Relief Petition within 90 days of the entry of the sentence. (Id. at 22-24) At the conclusion of this colloquy, the Court found that Ramos-Perez had entered the plea agreement "knowingly, intelligently, and voluntarily." (Id. at 25-26) Ramos-Perez then requested to be sentenced during that same hearing. (Id. at 26) The Court sentenced Ramos-Perez to an aggravated term of six and a half years. (Id. at 29-30) The Court based the aggravated sentence on his two prior felony convictions, the amount of drug involved, and the presence of an accomplice at the time of the offense. (Id. at 30)

Ramos-Perez filed a timely Notice of Post-Conviction Relief in Maricopa County Superior Court raising claims of ineffective assistance of counsel and also claiming that newly discovered material facts would probably change his sentence. (Id. at 2) The Superior Court appointed Ramos-Perez counsel who reviewed the file and then informed the Court that she could not find any colorable claims. (Doc. 10, Exs. I, J) Ramos-Perez then filed a timely pro per Petition and argued that he received ineffective assistance of counsel when his counsel failed to (1) withdraw from the plea agreement, (2) move to suppress the alleged amount of marijuana, and (3) interview Ramos-Perez's co-defendant. (Doc. 10, Ex. N at 4-6) The State argued that his claims failed because (1) Ramos-Perez failed to allege any specific facts or omissions of counsel that fell below an objective standard of reasonableness as defined by prevailing professional norms, (2) even assuming that counsel should have withdrawn from the plea agreement, Ramos-Perez HAD THE OPPORTUNITY TO DO SO HIMSELF AND ENTERED THE PLEA AGREEMENT "KNOWINGLY, intelligently, and voluntarily", and (3) Ramos-Perez was barred from claiming that counsel should have moved to suppress evidence and to cross-examine the co-defendant because he entered into a plea agreement and waived any non-jurisdictional claim other than any claim related to the validity of the plea agreement. (Id. at 10-12) At the conclusion of briefing, the Court summarily dismissed the petition "for the reasons noted by the State in its response." (Doc 10, Ex. P at 1) Ramos-Perez filed an untimely reply, and after reviewing it, the Court affirmed its ruling to dismiss his petition. (Doc 10, Exs.

P, Q & R)

Ramos-Perez petitioned the Arizona Court of Appeals for review of the Superior Court's denial of his Petition and argued that the Superior Court should have conducted an evidentiary hearing and reviewed each individual count in his Petition instead of summarily dismissing it. (Doc. 10, Ex. S at 3) Ramos-Perez also reiterated his ineffective assistance of counsel arguments. (Id. at 4-6) The Arizona Court of Appeals granted review but found that Ramos-Perez was not entitled to relief and upheld the dismissal: the Court concluded that Ramos-Perez had entered a plea of guilty and therefore "waived all non-jurisdictional defects, including ineffective assistance of counsel, except those related to the validity of his guilty plea." (Doc. 10, Ex. U at 3) The Court noted that Ramos-Perez had failed to provide any basis for his claim that his co-defendant would have testified that they were not accomplices, nor had he asserted that he would have not entered a plea of guilty based on that testimony. (Id.) The Court also found that Ramos-Perez's probable cause argument was waived because he raised it for the first time on appeal. (Id. at 3-4) Finally, the Court noted that Ramos-Perez did not identify any legal basis for his claim that counsel should have moved to suppress evidence of the amount of marijuana he was carrying. (Id.)

Ramos-Perez filed a timely Petition for a Writ of Habeas Corpus in this Court. (Doc. 1) As he did in post-conviction proceedings, he claims that he received ineffective assistance of counsel and that his counsel should have moved to suppress evidence. (Id. at 7) Respondents contend that he waived any argument about suppression of evidence when he entered a plea of guilty and that, even if the arguments were not waived, they are unsupported because Ramos-Perez offers no support for his assertion that additional interviews and motions would have changed the results of his case. (Doc. 10 at 8-9)

Legal Standard of Review

On habeas review of a timely petition with exhausted arguments, this Court can only grant relief if the petitioner has demonstrated prejudice from the adjudication of a claim that 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). Lambert v. Blodgett, 393 F.3d 943, 970, n.16 (9th Cir. 2004); Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000). This is a "`highly deferential standard for evaluating state-court rulings' which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).

Under clearly established Federal law on ineffective assistance of counsel, Ramos-Perez needs to show that his trial counsel's performance was both (a) objectively deficient and (b) caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). This results in a "doubly deferential" review of counsel's performance. Cullen v.

Pinholster, 131 S.Ct. 1388, 1403 (2011). The Court has discretion to determine which Strickland prong to analyze first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998). A habeas court reviewing a claim of ineffective assistance of counsel must determine "whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC 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, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted).

Ramos-Perez received objectively deficient representation if his counsel "`fell below an objective standard of reasonableness' such that it was outside `the range of competence demanded of attorneys in criminal cases.'" Clark v. Arnold, 769 F.3d 711,725 (9th Cir. 2014) (quoting Strickland, 466 U.S. at 687). To demonstrate prejudice, Ramos-Perez "must show that there [wa]s 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.

Analysis

There is no dispute that Ramos-Perez's claims were timely presented and fully exhausted. Accordingly, the Court can review the substance of his claims. Ramos-Perez raises three claims that directly attack the factual basis of the plea agreement: (1) that his counsel should have withdrawn from the plea agreement because the State never proved his intent to sell, (2) that his counsel should have moved to suppress the evidence that the amount of marijuana was one hundred and fifty five pounds, (3) that he was tricked by the State when his plea mentioned he possessed between two and four pounds at the time of the felony, and (4) that counsel failed to call his co-defendant to the stand to clarify how much marijuana each individual was carrying on the day of the felony. (Doc. 1 at 6-8) Ramos-Perez waived those arguments when he entered into a plea of guilty and so the Court will not consider them. See Bradshaw v. Stumpf, 545 U.S. 175, 186 (2005).

He further alleges for the first time that he is a Mexican national with extremely limited comprehension of English that prevented him from fully understanding legal terms and acceptable norms. (Doc. 13 at 2) Ramos-Perez waived this argument because he did not raise it in State Court proceedings. See Ariz. R. Crim. P. 32.2; Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998); Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir.1997); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.1996); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.1992). Even if not waived, it is meritless because Ramos-Perez was assisted by an interpreter at all times during his plea and sentencing hearing, and stated on the record that he had understood her. (Doc. 10, Ex. D at 18) Finally, the Superior Court found that he knowingly, intelligently, and voluntarily entered into the plea agreement. (Id. at 25-26)

Even assuming that Ramos-Perez had not waived his claims that directly attack the factual basis of the plea agreement, he cannot show that he suffered prejudice from his counsel. As the Arizona Court of Appeals correctly noted, Ramos-Perez did not provide any support for his assertions that his co-defendant would have provided any exculpatory information. (Doc. 10, Ex. U at 3). He also never argued that he was carrying less than the amount stated in the plea agreement, only that his co-defendant would clarify the amount they each carried. (Id.) This argument does not support his claim that he suffered any prejudice from the performance of counsel. Finally, Ramos-Perez also never asserted that he would have not pled guilty if this information had been obtained from his co-defendant. (Id.)

IT IS THEREFORE RECOMMENDED that Ramos-Perez's Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the petition is justified by the waiver contained in the plea agreement of all non-jurisdictional claims and jurists of reason would not find the ruling debatable.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.

The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.