Perez-Martinez v. Gilbert

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA REYCEL PEREZ-MARTINEZ, CASE NO. C15-5950 BHS Petitioner, ORDER ADOPTING IN PART 9 v. REPORT AND RECOMMENDATION AND MARGARET GILBERT, GRANTING EVIDENTIARY HEARING 11 Respondent.

13 This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable Theresa L. Fricke, United States Magistrate Judge, Dkt. 61, Respondent Margaret Gilbert’s (“State”) objections to the R&R, Dkt. 67, and Petitioner Reycel Perez- Martinez’s (“Petitioner”) objections to the R&R, Dkt. 69.

17 On May 22, 2019, Judge Fricke issued the R&R recommending that the Court deny Petitioner’s petition and grant a certificate of appealability (“COA”). Dkt. 61. On September 9, 2019, the State filed objections to part of the R&R, Dkt. 67, and Petitioner filed objections, Dkt. 69. On September 19, 2019, the State responded. Dkt. 71. On September 26, 2019, Petitioner responded. Dkt. 73. On December 18, 2019, Petitioner filed a notice of supplemental authority. Dkt. 75.

1 The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

5 A. The State’s Objections 6 The State objects to the R&R on three grounds. Dkt. 67. The first two objections address the scope of review, and the Court will address them before reaching the merits.

8 The last objection addresses whether a COA should issue, which the Court will address at the conclusion of this proceeding.

10 1. “New” Claims 11 The State argues that Judge Fricke should not have considered Petitioner’s additional grounds for relief that were asserted for the first time in his supplemental brief.

13 Dkt. 67 at 2–5. Although the State concedes that the amended petition asserted seven allegations in support of Petitioner’s ineffective assistance of counsel (“IAC”) claim, the State argues that Petitioner improperly raised three new allegations regarding this claim in his supplemental brief. Dkt. 59 at 20. The three challenged allegations are that (1) Petitioner’s counsel was deficient during plea negotiations, (2) counsel failed to introduce evidence of the victim’s violent past, and (3) that counsel failed to introduce evidence that the victim possessed $3,000. Id. 20 The State’s first argument in support of its position is that the Court may not consider arguments or claims raised for the first time in a traverse. Dkt. 67 at 3 (citing Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)). This argument is without merit in this case because Petitioner did not raise these issues for the first time in a traverse. Instead, the issues were specifically addressed for the first time in a supplemental brief after counsel was appointed. The State was given notice and an opportunity to respond to this brief and therefore the State has failed to establish any violation of due process.

6 Second, the State argues that the Court should enforce a strict interpretation of the supplemental rules governing habeas petitions. Specifically, the State argues that “Rule 2 expressly requires the petitioner to raise all grounds for relief in the habeas corpus petition.” Dkt. 67 at 3. In the pro se amended petition, Petitioner listed five grounds for relief, including an IAC claim that set forth “cumulative errors throughout the trial.” Dkt.

11 24 at 39. In his supplemental brief drafted by appointed counsel, Petitioner raises the three arguments that the State challenges as new claims for relief. Dkt. 58 at 33–37, 39– 40. The State fails to cite any authority in support of its strict interpretation of Rule 2, and the Court declines to accept the State’s position that Petitioner raised new grounds that are barred by the statute of limitations. Instead, the Court agrees with Petitioner that this is the unusual case in which a pro se petition is further refined and enlightened by appointed counsel. Dkt. 73 at 12–14. Moreover, the pro se petition sufficiently alleges that counsel’s ineffective assistance throughout the entire proceeding led Petitioner to request new counsel on multiple occasions. Thus, even if amendment was procedurally required, the new arguments are based on facts of the same time and type as those asserted to support the broad IAC claim. Mayle v. Felix, 545 U.S. 644, 659 (2005) (new claims must stem from facts that are of the same “time and type” as those set forth in the original petition). Therefore, the Court concludes that Judge Fricke properly reviewed all of Petitioner’s arguments in his supplemental brief.

3 2. New Evidence 4 The State argues that Judge Fricke erred in accepting Petitioner’s new evidence in support of his IAC claim. Dkt. 67 at 6–7. Petitioner argues that the State’s position is “contrary to controlling Ninth Circuit law . . . .” Dkt. 73 at 4. The Court agrees with Petitioner. Ramirez v. Ryan, 937 F.3d 1230, 1248 (9th Cir. 2019) (petitioner “is entitled to evidentiary development to litigate the merits of his ineffective assistance of trial counsel claim, as he was precluded from such development because of his post- conviction counsel’s ineffective representation.”); Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc) (“We also reject the state’s argument that, even if [Martinez v. Ryan, 566 U.S. 1, (2012)] applies to the standard for Dickens to show cause, § 2254(e)(2) will bar Dickens from introducing the new evidence to the district court.”); Detrich v. Ryan, 740 F.3d 1237, 1247 (9th Cir. 2013) (en banc). Therefore, the Court adopts the R&R on this issue.

16 B. Petitioner’s Objections 17 Petitioner objects to the R&R’s conclusions on his pretrial IAC claims, which are subject to de novo review. Dkt. 69 at 5 n.3. Thus, the Court adopts the R&R on Petitioner’s other claims that were subject to deferential review.

20 Regarding the pretrial IAC claims, the Court agrees with Petitioner that he has satisfied his burden for an evidentiary hearing. “During plea negotiations defendants are ‘entitled to the effective assistance of competent counsel.’” Lafler v. Cooper, 566 U.S. 1 156, 162 (2012) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). To succeed on an IAC claim, petitioner must show both deficient performance and prejudice.

3 Id. at 162–63. Regarding an evidentiary hearing, one “‘is required whenever petitioner’s allegations, if proved, would entitle him to relief,’” and Petitioner’s “allegations need only amount to a colorable claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005) (quoting Turner v. Marshall, 63 F.3d 807, 815 (9th Cir. 1995)).

7 In this case, Petitioner has asserted colorable allegations. Regarding the competency component, Petitioner has submitted credible evidence that raises serious questions about his counsel’s motives. Not only did his counsel seemingly argue against his removal from the case, but his counsel also admitted on the record to ex parte communication with the court to get approval to not give Petitioner discovery. These issues deserve further factual exploration because they are tied directly to the attorney- client relationship leading up to the plea negotiation and rejection.

14 Regarding prejudice, Petitioner declares that he would have accepted the State’s plea offer if he had an attorney that he could have trusted. Dkt. 58-8, ¶ 8. In light of the attorney’s reluctance to withdraw and failure to provide discovery, Petitioner’s allegations amount to a colorable claim of prejudice. Therefore, the Court declines to adopt the R&R on the issues of a denial of an evidentiary hearing and denial of his plea negotiations claim.

20 C. ORDER 21 Therefore, the Court having considered the R&R, Petitioner’s and the State’s objections, and the remaining record, does hereby find and order as follows: 1 (1) The R&R is ADOPTED in part; 2 (2) Petitioner’s petition is DENIED in part; 3 (3) Petitioner is GRANTED an evidentiary hearing on his plea negotiations 4 claim; and 5 (4) The parties shall work with the Court Clerk to schedule the hearing and file 6 a joint status report no later than July 3, 2020.

7 Dated this 15th day of June, 2020.

A BENJAMIN H. SETTLE United States District Judge