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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Daniel Alejandro Macias, 

Petitioner, 

v. 

Charles L Ryan, 

Respondent. 

No. CV-18-00145-TUC-RCC 

ORDER 

 On December 4, 2019, Magistrate Judge Leslie A. Bowman issued a Report and 

Recommendation (“R&R”) in which she recommended that this Court deny Petitioner 

Daniel Alejandro Macias’ Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus 

by a Person in State Custody (Doc. 1). (Doc. 23) Petitioner filed an objection (Doc. 24.) 

and Respondent filed a response (Doc. 26). Upon review, the Court will deny the § 2254 

petition. 

I. STANDARD OF REVIEW

The standard the District Court uses when reviewing a magistrate judge’s R&R is 

dependent upon whether or not a party objects: where there is no objection to a magistrate’s 

factual or legal determinations, the district court need not review the decision “under a de 

novo or any other standard.” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, when a 

party objects, the district court 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 
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magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). 

Moreover, “while the statute does not require the judge to review an issue de novo if no 

objections are filed, it does not preclude further review by the district judge, sua sponte or 

at the request of a party, under a de novo or any other standard.” Thomas, 474 U.S. at 154. 

There being no objection to the factual summary of the case, the Court adopts the 

Magistrate Judge’s recitation of the facts, and only summarizes the facts as necessary to 

address Petitioner’s objections. Furthermore, Petitioner has not challenged the Magistrate 

Judge’s determination that his Claims 1(b)-(d) are procedurally defaulted. These claims 

include Petitioner’s assertion that his trial counsel was ineffective for failing to handle a 

motion to dismiss (Claim 1(b)) and a motion to suppress (Claim 1(c)), as well as for 

cumulative error (Claim 1(d)). The Court finds the Magistrate Judge’s conclusions well–

reasoned and agrees that they have been procedurally defaulted. 

In addition, Petitioner has not objected to the Magistrate Judge’s conclusion that 

Claim 2–for due process violations based on the Post–Conviction Relief (“PCR”) court’s 

failure to grant him an evidentiary hearing–is not a cognizable form of relief in federal 

habeas. See e.g. Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 

1123 (1999) (error in PCR determinations not cognizable in federal habeas); Leon v. Ryan, 

2014 U.S. Dist. LEXIS 9587, 2014 289980, at *9-10 (D. Ariz. Jan. 27, 2014) (error in 

denying evidentiary hearing in post–conviction proceedings not cognizable upon habeas 

review). The Court agrees and adopts this conclusion. 

Therefore, the only issue in the Magistrate Judge’s opinion to which Petitioner 

objects is her conclusion that Petitioner had not demonstrated that counsel rendered 

ineffective assistance when he erroneously informed Petitioner that he could only serve 

10.5 years in prison if convicted at trial. 

II. § 2254 STANDARD OF REVIEW

 Under 28 U.S.C. § 2254, the district court may grant relief for a claim that has been 

adjudicated on the merits in state court if the state court’s decision “is contrary to or an 

unreasonable application of federal law”, or an “unreasonable determination of facts in 
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light of the evidence presented.” 28 U.S.C. §§ 2254(d)(1)-(2). Factual issues determined 

by the state court must be rebutted with clear and convincing evidence to the contrary. 28 

U.S.C. § 2254(e)(1). The District Court’s analysis is based on the last reasoned decision of 

the trial court. See Brown v. Palmateer, 379 F.3d 1089, 1092 (9th Cir. 2004). 

III. INEFFECTIVE ASSISTANCE OF COUNSEL

To raise a colorable claim of ineffective assistance of counsel, a petitioner must 

demonstrate both that counsel’s performance was deficient, and that petitioner was 

prejudiced because of counsel’s deficient actions. Strickland v. Washington, 466 U.S. 668, 

686-90, (1984); Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir. 1998). There is “a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance[.]” Carrera v. Ayers, 670 F.3d 938, 943 (9th Cir. 2011) (quoting Strickland, 466 

U.S. at 689). Moreover, ineffective assistance of counsel claims in a habeas petition are 

“doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). “When §2254(d) 

applies, the question is not whether counsel’s actions were reasonable. The question is 

whether there is any reasonable argument that counsel satisfied Strickland’s deferential 

standard.” Id. Under this deference, prejudice requires a petitioner demonstrate that there 

is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 104. “Failure to satisfy either prong of the 

Strickland test obviates the need to consider the other.” Rios v. Rocha, 299 F.3d 796, 805 

(9th Cir. 2002).

IV. SUMMARY OF CASE

During the pendency of this case, Petitioner was offered a plea agreement exposing 

him to between 15 years and 38.5 years’ incarceration. (Doc. 18 at 57.) During a Donald 

hearing, Petitioner indicated he was aware that his sentence would be much higher than the 

10.5 years’ incarceration he now claims he thought he would be subject to if he went to 

trial. Id. The trial court informed him of the following: 

COURT: Mr. Macias, you understand you have been offered a plea 

agreement. And as I understand it today is the last day that you can take that 

plea agreement. Do you understand that? 
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DEFENDANT: Yes, I understand, ma’am. 

COURT: And under the plea agreement, the shortest prison sentence you 

could get would be 15 years, and the longest sentence you could get would 

be 38 and 3⁄4 years. Do you understand that? 

DEFENDANT: Yes, ma’am. 

COURT: If you go to trial and you are convicted of everything, the shortest 

prison sentence you can get is 67 years, and the longest prison sentence you 

can get is 302 and 3⁄4 years. Do you understand that? 

DEFENDANT: Yes, ma’am. 

COURT: Have you made a decision about whether you want to accept the 

plea offer or take this case to trial? 

DEFENDANT: Yes, ma’am. 

Id. Petitioner rejected the plea agreement and the case proceeded to trial. A jury convicted 

him of a multitude of charges including “burglary in the first degree, aggravated robbery, 

armed robbery, theft of a means of transportation, three counts of aggravated assault with 

a deadly weapon, six counts of kidnapping, and three counts of aggravated assault with a 

deadly weapon of a minor under age fifteen.” (Doc. 1-2 at 3; Doc. 17 at 60.) 

 In a sentencing memorandum and at the sentencing hearing, Petitioner’s counsel 

argued that the the dangerous crimes against children counts needed to be run consecutive 

to the other sentences, but they could be run concurrent to one another. (Doc. 1-2 at 58.) 

The trial court disagreed, running the dangerous crimes against children sentences 

consecutive to one another and the other crimes. Id. 59-63. Petitioner was sentenced to 

112.5 years’ incarceration. (Doc. 1-2 at 22; Doc. 24 at 2.) This sentence reflected the 

consecutive sentences given for the dangerous crimes against children convictions in 

accordance with A.R.S. § 13-705M. 

Petitioner then filed a Petition for Post–Conviction Relief (“PCR Petition”) in the 

state court, arguing that counsel rendered ineffective assistance because he was not aware 

of the sentencing law that subjected Petitioner to consecutive sentences rather than 
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concurrent. (Doc. 17-9 at 2-19.) 

The trial court denied the PCR Petition, stating that Petitioner had not made a 

colorable claim that his counsel’s actions were deficient, nor had he established prejudice, 

and Petitioner had therefore not met the Strickland standard for ineffective assistance of 

counsel. (Doc. 18 at 61-63; Doc. 1-2 at 20-22.) 

The trial court noted that to state a colorable claim of ineffectiveness causing a plea 

agreement rejection “a petitioner must establish that counsel either ‘(1) gave erroneous 

advice or (2) failed to give information necessary to allow the petitioner to make an 

informed decision whether to accept the plea.’” (Doc. 18 at 61 (citing Donald, 198 Ariz. at 

¶ 11).) Petitioner had not made a colorable claim because the Donald hearing provided 

Petitioner adequate notice of his possible sentencing range–both with the plea agreement 

and at trial. Id. at 62. The trial court stated, “The fact that this Court to thoroughly outlined 

what would happen to Petitioner if he rejected the plea outweighs any claims today that he 

did not understand what was explained to him at that hearing or that counsel’s advice 

somehow impeded Petitioner’s avowal of understanding.” Id. at 62. Moreover, the court 

commented that Petitioner never indicated he did not understand the sentencing range 

explained during the hearing despite his claims that counsel gave him differing advice. Id. 

In addition, immediately after rejecting the plea, Petitioner was again informed that the 

minimum sentence he would serve was 67 years, so even if counsel had given him 

erroneous advice, his claim that he believed he would only serve 10.5 was unpersuasive. 

Id. at 63. Finally, the court did not find Petitioner’s affidavits undermined its determination 

because they were both self–serving and conclusory. Id. at 62. 

Petitioner appealed to the Arizona Court of Appeals, who affirmed the trial court’s 

determination that Petitioner was fully aware of the “sentences he could face if convicted 

of all the charges after trial and he knowingly rejected the state’s plea offer despite that 

understanding.” Id. at 196. The appellate court added that Petitioner’s affidavit asserting 

he was wrongfully informed did not outweigh the strong indications on the record that 

Plaintiff was fully aware of the higher sentencing range because “counsel agreed on the 

record that his ‘calculations’ were the same as the state’s assertion of the minimum 
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sentence if Macias was convicted of the offenses after trial.” Id. at 196-97 

V. MAGISTRATE JUDGE’S R&R

 The Magistrate Judge agreed with the trial court that the Donald hearing 

undermined Petitioner’s claim that he was unaware of his potential sentence. (Doc. 23 at 

6.) Judge Bowman also found that even though counsel argued that Petitioner’s convictions 

should run concurrently, counsel’s arguments were just that–arguments. Id. at 8. The oral 

and written statements were not evidence of a misinterpretation of the statute mandating 

consecutive sentences, nor were they evidence of counsel’s advice to Petitioner about his 

possible sentence. Id. 

VI. PETITIONER’S OBJECTION

 Petitioner believes that the Magistrate Judge did not give enough weight to 

Plaintiff’s affidavits stating counsel told him he could only receive a 10.5–year sentence if 

he was convicted at trial. (Doc. 24 at 2.) Plaintiff claims that his affidavits, the argument 

in his pleadings, and his statements in open court should have weighed heavier upon habeas 

review. Id. 

Petitioner’s objection does not establish he is entitled to relief. Petitioner does not 

explain how the state court’s determination that Petitioner had failed to meet either prong 

of the Strickland standard was contrary to law or an unreasonable application of law to 

fact. He cites no federal law mandating the Court consider a conclusory, self–serving 

affidavit over Petitioner’s overt statements on the record of his understanding of his 

potential sentence at trial. His post–conviction, self–interested assertions to the contrary 

are unpersuasive. The state court determined that he failed to state a colorable claim 

because he had not shown counsel failed to give him information about the plea. Petitioner 

was adequately notified of his possible sentence at trial: during the Donald hearing, after 

rejecting the plea agreement, and through counsel’s open–court affirmation that the state’s 

calculations were correct. 

 Petitioner also claims that since his counsel argued for the 10.5–year sentence in 

his sentencing memorandum and at the sentencing hearing the trial court should have at 
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least granted him an evidentiary hearing because he had stated a colorable claim of 

ineffective assistance. Id. at 3. In addition, Petitioner claims that relying on the Donald 

hearing to show that Petitioner was informed of his possible sentence was somehow 

inappropriate because both the state court and the Magistrate Judge needed to rely on 

Petitioner’s counsel’s statements instead. Id. 

Again, Petitioner’s arguments do not undermine the state court’s determination that 

despite his claims that counsel was giving him contrary advice, Petitioner understood the 

potential sentence he was facing if he proceeded to trial. Contrary to Petitioner’s claims, 

the state court did consider Petitioner’s counsel’s statements. The court evaluated counsel’s 

sentencing memorandum and oral argument about current sentences and determined that it 

could plausibly be construed as creative argument for reducing Petitioner’s sentence. In 

addition, the state court drew its conclusions about Petitioner’s awareness about the 

sentencing range from counsel’s open court statement that the state’s calculations were the 

same as his own. The state court’s decision was not contrary to federal law or an 

unreasonable application of the law to the facts in this case. 

 Petitioner also argues that the Magistrate Judge’s determination that Petitioner had 

not demonstrated prejudice was unfounded. Id. at 5. The Court disagrees. Between the 

statements on the record that Petitioner wished to proceed to trial despite his exposure to a 

lengthy sentence and counsel’s statements on the record that his calculations were in line 

with the state’s for proceeding to trial, there was insufficient evidence that absent counsel’s 

alleged miscalculations, Petitioner would have taken the plea agreement. Simply claiming 

he would have taken the plea–after being convicted and after refusing to take the plea in 

open court–does not create a reasonable probability that the outcome would have been 

different. The state court’s determination of the same was neither contrary to law nor an 

unreasonable determination of facts and accordingly the Magistrate Judge’s conclusions 

were valid. 

 Petitioner finally claims counsel was ineffective in general because there were other 

indications during his criminal proceedings that counsel was ineffective. First, counsel 
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erroneously filed a motion to dismiss. Id. at 6. This argument is not related to Petitioner’s 

claim that he was ill advised about his potential sentence at trial. Petitioner does not show 

how the possible error is connected to his choice to go to trial, nor how he was prejudiced 

by the action. Petitioner finally argues that counsel filed a motion to suppress challenging 

third–party identification of Petitioner and this was ineffective. Id. at 7. Again, this is not 

connected to any failure to inform Petitioner of the possible sentence after conviction at 

trial and so does not demonstrate that Petitioner was prejudiced. Moreover, as stated earlier, 

both claims are procedurally defaulted, and Petitioner’s objection makes no argument to 

the contrary. 

VII. CONCLUSION

 Upon de novo review of the issues raised in Petitioner’s objection to the R&R, the 

Court agrees with the Magistrate Judge’s determinations. Petitioner is not entitled to relief 

in habeas. 

VIII. CERTIFICATE OF APPEALABILITY

 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event 

Petitioner files an appeal, the Court declines to issue a certificate of appealability because 

reasonable persons could not “debate whether (or, for that matter, agree that) the petition 

should have been resolved in a different manner or that the issues presented were adequate 

to deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 484 

(2000) (internal quotations omitted). 

Accordingly, IT IS ORDERED: 

1. Magistrate Judge Bowman’s Report and Recommendation is ADOPTED.

2. Petitioner’s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a 

Person in State Custody (Doc. 1) is DENIED. 

3. The Clerk of Court shall docket accordingly and close the case file in this matter. 

 Dated this 8th day of April, 2019.