Raymond Barela v. Charles Ryan, et al.

Opinion

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9 Raymond Barela, No. CV-15-2097-PHX-SRB (DKD)

10 Petitioner,

11 v. AMENDED REPORT AND RECOMMENDATION 12 Charles Ryan, et al.,

13 Respondents. 14 15 16 TO THE HONORABLE SUSAN R. BOLTON, SENIOR U.S. DISTRICT JUDGE: 17 Raymond Barela filed a Petition for Writ of Habeas Corpus (“Petition”) in this 18 Court. Respondents argue that the Court cannot review his claims. As described below, 19 the Court agrees with Respondents and recommends that Barela’s Petition be denied and 20 dismissed with prejudice. 21 Background 22 The record indicates that Barela was convicted, pursuant to a plea agreement, of 23 two counts of manslaughter for the death of two victims.1 (Doc. 10, Ex. B; Doc. 25-1,

24 1 The Court notes that the record provided by Respondents is missing documents 25 that support the Respondents’ arguments. For example, Respondents argue that two of Barela’s claims were not exhausted and are now subject to a procedural bar. (Doc. 25 at 26 9-12) However, the record does not contain Barela’s briefing to the Arizona Court of Appeals and so the Court cannot verify Respondents’ argument. The record also contains 27 a presentence investigation and plea agreement for a different case. (Doc. 25-1 at 6, 14- 16) After a careful review of the relevant portions of the record and the claims raised in 28 Barela’s Petition, the Court concludes that supplementing the record is not required but notes that it expects Respondents will pay closer attention to detail in the future. 1 Ex. C) After entry of the plea and sentencing, Barela initiated post-conviction 2 proceedings and, shortly thereafter, he filed his Petition in this Court. (Doc. 1; Doc. 10, 3 Ex. C; Doc. 25-1, Exs. D, E) This Court stayed his habeas proceedings pending the 4 outcome of his proceedings before the Arizona Court of Appeals. (Doc. 12) After the 5 Arizona Supreme Court denied his Petition for Review, briefing in this matter resumed 6 and Respondents filed a response arguing that, although the Petition was timely, the 7 Court cannot review any of them. (Docs. 23, 24, 25) Barela did not file a reply. 8 Analysis 9 All four of the Petitioner’s claims concern events that occurred before he entered 10 his plea of guilty. (Doc. 1) Specifically, he argues that the indictment violated his 11 double jeopardy rights, he was subjected to cruel and unusual punishment,2 his Miranda 12 rights were violated, and he received ineffective assistance of trial counsel because his 13 counsel had not “first explor[ed] his medical reasons for falling asleep at the wheel.” 14 (Doc. 1 at 6-9) 15 The Court concludes that it cannot review Barela’s claims because they involve 16 either a “deprivation of constitutional rights that occurred prior to the entry of the guilty 17 plea” or do not address “the voluntary and intelligent character of the guilty plea.” Tollett 18 v. Henderson, 411 U.S. 258, 267 (1973). Barela has “voluntarily and intelligently 19 plead[ed] guilty to a criminal charge [and so he] may not subsequently seek federal 20 habeas corpus relief on the basis of pre-plea constitutional violations.” Hudson v. Moran, 21 760 F.2d 1027, 1029-30 (9th Cir. 1985). Accordingly, the Court cannot review his 22 Petition. 23 Motion to Stay 24 At the same time this Court issued its Report and Recommendation, Barela filed a 25 “Motion to Stay All Habeas Proceedings and to Suspend Tolling of Time.” (Doc. 26) In 26 it, he stated that he “believes that if his medical condition [of sleep apnea] had been

27 2 To the extent that the Petitioner’s description of this claim implicates his 28 experiences while in custody, the Court notes that this is outside the scope of habeas review under 28 U.S.C. § 2254. (Doc. 1 at 7) 1 considered at the time his plea agreement was being negotiated, perhaps the length of 2 sentence offered to him by the State might have been significantly less.” (Doc. 26 at 3-4) 3 He does not explain why this matter should be stayed and he does not explain why this 4 matter should be returned to state court. Respondents argue that a stay should be denied. 5 (Doc. 29) Barela did not reply. The Court agrees that a stay would be futile. Even 6 assuming that Barela’s motion was a reply in support of his Petition, the Court concludes 7 that he has not demonstrated that his Petition’s claims are reviewable. 8 IT IS ORDERED denying Petitioner’s Motion to Stay (Doc. 26). 9 IT IS THEREFORE RECOMMENDED that Raymond Barela’s Petition for 10 Writ of Habeas Corpus be denied and dismissed with prejudice. 11 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 12 leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition 13 is justified by a plain procedural bar and jurists of reason would not find the ruling 14 debatable. 15 This recommendation is not an order that is immediately appealable to the Ninth 16 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 17 of Appellate Procedure, should not be filed until entry of the district court’s judgment. 18 The parties shall have fourteen days from the date of service of a copy of this 19 recommendation within which to file specific written objections with the Court. See, 28 20 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, 21 the parties have fourteen days within which to file a response to the objections. Failure 22 timely to file objections to the Magistrate Judge’s Report and Recommendation may 23 result in the acceptance of the Report and Recommendation by the district court without 24 further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 25 Failure timely to file objections to any factual determinations of the Magistrate Judge will 26 be considered a waiver of a party’s right to appellate review of the findings of fact in an 27 . . . 28 . . . 1 || order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 2|| 72, Federal Rules of Civil Procedure. 3 Dated this 7th day of March, 2018. 4 5

g United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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