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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Miguel Alvarado Ramirez, Sr.,

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents.

No. CV-17-04088-PHX-DLR (ESW)

ORDER 

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 

Eileen S. Willett (Doc. 29), Petitioner’s objections (Doc. 31), and the State’s response to 

those objections (Doc. 32). The R&R addresses Petitioner’s (1) petition under 28 U.S.C. 

§ 2254 for a writ of habeas corpus (“Petition”) (Doc. 1), (2) Motion to Dismiss Grounds 1, 

2, 3, and 5 (Doc. 18), and (3) First Motion to Amend Petition for Writ of Habeas Corpus 

(Doc. 19). The R&R recommends that the Court deny the motion to amend, grant the 

motion to dismiss, and dismiss the Petition with prejudice. 

The Magistrate Judge advised the parties that they had fourteen days from the date 

of service of a copy of the R&R to file specific written objections with the Court. The 

Court has considered the objections and responses and has reviewed the R&R de novo. 

See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de 

novo determination of those portions of the R&R to which specific objections are made). 

For the following reasons, the Court overrules Petitioner’s objections and adopts the R&R. 
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I. Background 

 After being sentenced on April 24, 2012 for the second-degree murder of his wife, 

Petitioner filed a Notice of Post-Conviction Relief (“PCR”) pursuant to Rule 32 of the 

Arizona Rules of Criminal Procedure on September 27, 2012. The PCR, which among 

other things alleged ineffective assistance of trial counsel, was dismissed as untimely by 

the trial court in October 2012. The trial court stated: “Defendant cannot raise this 

[ineffective assistance of counsel] claim in an untimely . . . Rule 32 proceeding . . . .” (Doc. 

8-1 at 96.) 

Petitioner, proceeding pro se, filed an amended PCR on October 22, 2012. (Id. at 

97-101.) The trial court appointed PCR counsel, who on April 22, 2013 filed a Notice of 

Completion or Post Conviction Review wherein he indicated that he found no colorable 

claim. (Id. at 105-06.) 

Petitioner, again proceeding pro se, then filed a PCR in July 2013 alleging, among 

other things, ineffective assistance of trial counsel for not investigating the case, coercing 

Petitioner into pleading guilty, not explaining to the court the reason for his lengthy absence 

from the jurisdiction, not raising a constitutional challenge to the delay in prosecution, and 

not arguing that Petitioner was not competent to stand trial. He did not allege ineffective 

assistance of PCR counsel. (Id. at 109-17.) 

On November 26, 2013, the trial court issued a minute entry finding that two of 

Petitioner’s claims for ineffective assistance of counsel were precluded and denying on the 

merits the non-precluded claims. (Id. at 156.) On September 19, 2017, the Arizona Court 

of Appeals issued its mandate with respect to a memorandum decision wherein it affirmed 

the trial court’s ruling on the PCR. (Id. at 158-161.) 

On March 19, 2014, Petitioner filed a petition for writ of habeas corpus in state 

court, which was treated as his third PCR. (Id. at 162-69.) Among other things, Petitioner 

alleged ineffective assistance of trial counsel. This PCR was summarily dismissed as 

untimely. (Id. at 169-70.) The trial court also denied Petitioner’s subsequent motion for 

reconsideration, and the Arizona Court of Appeals affirmed. (Id. at 171-73.) The appeals 
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court denied Petitioner’s request for reconsideration, and later the Arizona Supreme Court 

denied his petition for review. (Id. at 184). 

On November 6, 2017, Petitioner filed the Petition, alleging: (1) he was denied an 

Anders review in violation of the Fourteenth Amendment; (2) ineffective assistance of 

counsel based on counsel’s failure to request an Anders review in state court; (3) his plea 

agreement violates the Fourteenth Amendment because someone else killed his wife; (4) a 

claim pursuant to Martinez v. Ryan, 566 U.S. 1 (2012); and (5) the State failed to investigate 

the crime in violation of the Fourteenth Amendment. On September 21, 2018, Petitioner 

filed and lodged a number of documents, including his motion to dismiss grounds 1, 2, 3, 

and 5 of the Petition, motion to amend the Petition, a declaration from Miguel Alvarado 

Ramirez, Sr. in support of the motion to amend (Doc. 20), a copy of the proposed First 

Amended Petition (Doc. 21), a proposed addendum to the First Amended Petition (Doc. 

22), and a proposed affidavit from Miguel Alvarado Ramirez, Sr. in support of the First 

Amended Petition (Doc. 23). 

II. Discussion 

A. Motion to Amend (Doc. 19) 

Petitioner seeks leave to file a First Amended Petition that seems to allege 

“[i]neffective assistance of both post-conviction relief counsel and trial counsel . . . .” (Doc. 

19; Doc. 21 at 6.) Petitioner’s proposed amended petition takes a different direction than 

his state court PCR and his original habeas petition. For example, he admits that he was 

“the major/significant contributor to [the victim’s] death.” (Doc. 22 at 7.) The amended 

petition also changes the theory of his ineffective assistance of trial counsel claims. It 

appears that Petitioner intends to withdraw his claim that trial counsel was ineffective for 

failing to investigate, for failing to argue that some other person killed the victim, and 

failing to argue that Petitioner was factually innocent. (Doc. 1 at 6-11; Doc 18; Doc. 19.) 

Instead, Petitioner’s new theory is that trial counsel was ineffective for failing to properly 

investigate and present mitigation evidence at sentencing. (Doc. 21 at 6; Doc. 22 at 10.) 

His proposed amended petition alleges that trial counsel was ineffective for not presenting 
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evidence that his victim was addicted to meth and gambling, and regularly used razors to 

cur herself. (Doc. 22 at 6, 8-10.) He asserts that such evidence would have resulted in a 

lesser sentence if trial counsel had presented it at sentencing. (Id. at 10.) 

“[L]eave to amend ‘shall be freely given when justice so requires,’ Fed. R. Civ. P. 

15(a), and this policy is to be applied with extreme liberality.” Desertrain v. City of L.A., 

754 F.3d 1147, 1154 (9th Cir. 2014) (citation omitted). “Five factors are taken into account 

to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to 

the opposing party, futility of amendment, and whether the plaintiff has previously 

amended the complaint.” Id. (quotation and citation omitted). “Futility of amendment can, 

by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 

815, 845 (9th Cir. 1995). 

Petitioner’s amended petition would be futile. A petitioner must exhaust federal 

grounds for relief in state court by presenting each claim to the highest state court, 

describing both the legal theory and operative facts so that the state court has a fair 

opportunity to apply controlling legal principles to the facts bearing on his claims, 

Anderson v. Harless, 459 U.S. 4 (1982); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 

2009). Petitioner has not exhausted the new federal grounds for relief raised in his amended 

petition. Petitioner has not presented the claim that his trial counsel was ineffective 

because of his alleged failures during the sentencing portion of Petitioner’s case to the state 

courts. The previous claims pertained to counsel’s alleged failures to investigate and argue 

that “someone else did the crimes” and that Petitioner was “factually innocent.” Further, 

because Petitioner pled guilty and was sentenced nearly seven years ago, these new claims 

would be precluded in state court. Ariz. R. Crim. P. 32.2(a). It would be futile for 

Petitioner to return to state court to present the claims contained in his amended petition. 

Nor can Martinez salvage the amended claims. Petitioner’s reliance on Martinez is 

misplaced. Under Martinez, attorney ignorance or inadvertence in a collateral 

postconviction proceeding may qualify as “cause” to excuse a procedural default. 

Martinez has no application to this case. 
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In Arizona, a person who pleads guilty has the right to file a PCR, known as a Rule 

32 of-right proceeding. Ariz. R. Crim. P. 32.1. As a matter of Arizona law, “of-right” 

PCRs are direct and not collateral. State v. Ward, 118 P.3d 1122, 1125-26 (Ariz. Ct. App. 

2005). A petitioner is constitutionally entitled to the effective assistance of counsel on his 

first of-right PCR. State v. Petty, 238 P.3d 637, 640 (Ariz. Ct. App. 2010). A PCR 

petitioner may challenge the effectiveness of counsel who represented him in the first PCR 

in a successive PCR. “[C]laims of ineffective assistance of Rule 32 of-right counsel” are 

“precisely the purpose for which that second proceeding was designed.” Osterkamp v. 

Browning, 250 P.3d 551, 557 n.5 (Ariz. Ct. App. 2011). 

Petitioner pled guilty. His first PCR was “of-right”. It was a direct appeal, not a 

collateral proceeding. Martinez applies only to collateral proceedings. Because Petitioner 

did not file a successive PCR alleging that PCR counsel during his of-right PCR provided 

ineffective assistance, Martinez cannot be used to establish cause to excuse his procedural 

default. Petitioner has not presented any facts that satisfy the “cause and prejudice” 

exception to excuse the procedural default of the claim presented in the proposed First 

Amended Petition. For these reasons, his motion for leave to amend is denied. 

B. Motion to Dismiss Grounds 1, 2, 3 and 5 (Doc. 18) 

Petitioner may request the dismissal of an action only by court order. Fed. R. Civ. 

P. 41(a)(2). Petitioner argues in his motion that the Grounds 1, 2, 3 and 5 are “patently 

without merit and have no basis in fact or law.” Based on Petitioner’s avowal that these 

grounds are meritless, the Court will grant his motion to dismiss. 

C. Ground 4 of the Petition 

Petitioner concedes that all grounds except Ground 4 should be dismissed with 

prejudice. Ground 4, which merely states “Martinez claim,” appears to be a claim of 

ineffective assistance of PCR counsel. As discussed above, however, that claim is 

procedurally defaulted without excuse. 

// 

// 
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D. Petitioner’s Objections to the R&R 

In his objections (Doc. 31), Petitioner does not point to any specific error in the 

R&R. Petitioner objects to the R&R because he claims he was not informed of the 

successive Rule 32 of-right collateral process, which he argues “violated his Due Process 

and Equal Protection rights.” (Doc. 31 at 3.) Petitioner’s argument seems to be that, as a 

pro se litigant, the Ground 4’s procedural deficiencies should be excused because he did 

not know that he could claim ineffective assistance of PCR counsel in a second PCR in 

state court. The status of being a pro se litigant, however, does not establish cause for a 

procedural default. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 908 (9th Cir. 

1986). 

 If Petitioner’s objection is an effort to establish a new due process/equal protection 

claim, then he runs into the same problem as his other claim: failure to properly exhaust 

the claim in state court. As discussed above, without proper exhaustion of the claim in 

state court, it is not appropriate for review in this matter. 

For these reasons, the Court accepts the R&R within the meaning of Rule 72(b) and 

overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1). 

IT IS ORDERED that Petitioner’s objections (Doc. 31) are OVERRULED. 

IT IS FURTHER ORDERED that the R&R (Doc.29) is ACCEPTED as follows: 

1. Petitioner’s motion to amend (Doc 19) is DENIED. 

2. Petitioner’s motion to dismiss Grounds 1, 2, 3, and 5 (Doc. 18) is GRANTED. 

// 

// 

// 

// 

// 

// 

// 

// 
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3. The Petition (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. 

Having considered the issuance of a Certificate of Appealability from the order denying 

Petitioner’s Petition, a Certificate of Appealability and leave to proceed in forma pauperis 

on appeal are DENIED because the dismissal of the Petition is justified by a plain 

procedural bar and reasonable jurists would not find the ruling debatable. The Clerk of the 

Court shall enter judgment accordingly and terminate this action. 

Dated this 30th day of January, 2019. 

Douglas L. Rayes 

United States District Judge