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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Isidro Pacheco, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents. 

No. CV-15-02264-PHX-DGC 

ORDER 

 On February 6, 2019, Petitioner Isidrio Pacheco filed a supplemental notice of 

motion for issuance of writ due to non-compliance with this Court’s December 22, 2016 

order conditionally granting Petitioner’s writ of habeas corpus. Doc. 36. The State filed a 

response, which Petitioner moves to strike as untimely. Docs. 38, 39. Petitioner did not 

file a reply. For the reasons that follow, the Court will deny Petitioner’s motions. 

I. Background. 

Petitioner pled guilty to charges of child molestation and sexual conduct with a 

minor and was sentenced to 17 years. Doc. 35 at 1. Petitioner filed an of-right postconviction relief (“PCR”) petition, and his counsel filed a notice of no colorable claims. 

Id. at 1-2. Petitioner then filed a pro per petition, asserting ineffective assistance of counsel 

and sentencing error. Id. His petition was denied. Id. 

In November 2015, Petitioner filed a petition for writ of habeas corpus with this 

Court, asserting four grounds. Doc. 1. The first three, which the Court denied, alleged 
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ineffective assistance of counsel. Doc. 19 at 6. The fourth ground alleged that Petitioner 

was entitled to a “fundamental error” review of the record under Anders v. California, 386 

U.S. 738 (1967), because his of-right PCR proceeding was the equivalent of a direct appeal. 

Id. 

On December 22, 2016, this Court conditionally granted Petitioner’s writ of habeas 

and ordered that Petitioner be permitted to file a new of-right Rule 32 PCR proceeding, 

including the filing of a brief by counsel and independent review of the record consistent 

with Anders. Doc. 26 at 18. If the state failed to comply within 90 days, Petitioner would 

be released. Id. Petitioner’s case was subsequently terminated. 

On January 3, 2017, Petitioner filed his second notice for PCR in the superior court 

and was appointed counsel. Doc. 32 at 7. Counsel filed a new of-right Rule 32 petition on 

January 29, 2018. Id. The petition alleged a significant change of law because Arizona’s 

child molestation statute was found unconstitutional in May v. Ryan, 245 F. Supp. 3d 1145, 

1158 (D. Ariz. 2017). Id. The petition also alleged ineffective assistance of counsel 

because Petitioner’s original trial counsel should have interviewed Petitioner’s alibi 

witness, moved to suppress his confession, and presented mitigation evidence. Id. at 8-12. 

Further, the petition alleged that the trial court failed to inform Petitioner of the sentence 

enhancement under Arizona’s Dangerous Crimes Against Children Act (“DCACA”), 

rendering his guilty plea invalid. Doc. 32 at 12-6. Finally, the petition alleged that the 

DCACA sentencing scheme is unconstitutional because it enhances a sentence based on 

facts found by a judge instead of facts found by a jury beyond a reasonable doubt. Doc. 32 

at 16. 

 On June 11, 2018, the superior court denied the Rule 32 petition, finding that “all 

matters contained in the Petition for Post-Conviction Relief are precluded as having been 

previously ruled upon or untimely filed[,] or the Petition lacks sufficient basis in law and 

fact to warrant further proceedings herein and no useful purpose would be served by further 

proceedings.” Doc. 32 at 50. Petitioner then filed his first motion for issuance of a writ 

due to non-compliance in this Court, arguing that the superior court’s decision did not 
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satisfy the Court’s order for a new of-right PCR proceeding. Doc. 32. Petitioner argued 

that the superior court did not afford him a new Rule 32 proceeding because it found the 

issues raised to be precluded or untimely, which meant that it “treated the appeal as a 

successive action limiting the scope of [appealable] issues.” Doc. 32 at 2.

 The state filed a request for clarification in the superior court (see Doc. 34 at 5-6), 

and that court issued supplemental findings of fact and conclusions of law on July 12, 2018. 

See Doc. 33-1at 2. The order supplemented the court’s June 11, 2018 order “after fully 

considering [Petitioner’s petition] on its merits.” Doc. 34 at 18. The supplemental order 

addressed each of Petitioner’s arguments on the merits and affirmed the denial of postconviction relief. After this clarification, Petitioner filed a reply in support of his motion. 

His reply argued that the superior court’s supplemental order did not comply with the 

Court’s conditional grant of habeas relief because it essentially copied verbatim the state’s 

response to the PCR court. Doc. 34 at 2. 

 On October 9, 2018, this Court denied Petitioner’s first motion for issuance of writ 

due to non-compliance, finding that the subsequent of-right PCR proceeding satisfied the 

Court’s conditional grant of habeas relief because Petitioner was appointed counsel, 

counsel filed a merits brief, and Petitioner therefore was no longer entitled to an Anders

review by the trial court. Doc. 35 at 6. The Court noted that to the extent Petitioner 

disagreed with the substantive accuracy of the trial court’s decision, he needed to first 

exhaust his state remedies before initiating a federal court review. Id. at 7. The Arizona 

Court of Appeals has since affirmed the trial court’s denial of Petitioner’s subsequent PCR 

petition. See Doc. 36 at 1; State v. Pacheco, No. 2 CA-CR 2018-0269-PR, 2019 WL 

324930 (Ariz. Ct. App. Jan. 23, 2019). 

II. Petitioner’s Second Motion for Issuance of a Writ Due to Non-Compliance. 

Petitioner’s current motion asks the Court to determine whether the superior court 

“in fact addressed the substantive nature of [his] claims or merely took action giving an 

appearance of a new Rule 32 proceeding.” Doc. 36 at 2. But the Court already determined 

that the superior court appropriately addressed the merits of Petitioner’s claims in the 
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October 9 order. Doc. 35 at 6. Plaintiff’s remaining arguments go to the merits of the 

claims he brought in his second PCR proceedings. These claims are not before this Court. 

Following the issuance of a conditional habeas writ, the Court maintains jurisdiction 

only to review the state’s compliance with its conditional order. See Leonardo v. Crawford, 

646 F.3d 1157, 1161 (9th Cir. 2011). Here the Court’s conditional grant of habeas relief 

required: (1) a new of-right Rule 32 proceeding, (2) with briefing, and (3) a review of the 

record consistent with Anders. Doc. 26 at 18. The Court determined that the superior court 

complied with these requirements. Doc. 35 at 6. The state therefore has satisfied its 

obligation, and the Court cannot “address new arguments under the ambit of ensuring 

compliance with the earlier order.” See Leonardo, 646 F.3d at 1161. The language 

Petitioner highlights from the Court’s October 9 order – that the Court would address the 

substantive accuracy of the state court’s supplemental order only after Petitioner has 

exhausted his state remedies – refers to a successive or new habeas petition to challenge 

the accuracy of the subsequent PCR ruling, not to continuing review in this case. 

Petitioner also renews his argument that the superior court did not properly afford 

him a new of-right proceeding because its June 11, 2018 order summarily dismissed his 

issues without considering their merits, and the superior court’s supplemental order 

parroted the state’s briefing and was issued only in response to Petitioner’s filing of a noncompliance order in this Court. Doc. 36 at 2. The Court has already considered and 

rejected these arguments. See Doc. 35 at 6-7. Petitioner also argues that the Arizona Court 

of Appeals summarily dismissed his claims without addressing the merits, and he therefore 

was not afforded an adequate of-right PCR. See Doc. 36 at 4. But the Court of Appeals 

can properly adopt the superior court’s ruling in a summary order if it agrees with the 

reasoning and outcome and such orders will “not complicate further review in state or 

federal court.” State v. Whipple, 866 P.2d 1358, 1359-60 (Ariz. Ct. App. 1993); see also 

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state 

judgment rejecting a federal claim, later, unexplained orders upholding that judgment or 

rejecting the same claim rest upon the same ground.”). 
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III. Petitioner’s Motion to Strike. 

 Petitioner objects to the state’s response brief as untimely. Doc. 39. On March 15, 

the Court ordered a response brief by March 29. Doc. 37. The state filed its response on 

April 3. Doc. 38. The state asserted that it was unaware of the Court’s order until April 3, 

“having received the mailed order after being out of the office due to illness.” Id. at 1 n.1. 

The order was docketed on March 15 and notice of electronic filing was sent via ECF to 

three separate state e-mails. See Doc. 39 at 2-3. The state does not address why counsel 

did not receive this electronic notification of the Court’s order. Regardless, because the 

state has offered some explanation, Petitioner does not seem prejudiced by this motion, and 

the motion was filed within a few days of the deadline, the Court finds good cause to 

consider the motion and will not deny it as untimely 

 IT IS ORDERED: 

 1. Petitioner’s supplemental notice of motion for issuance of writ due to noncompliance (Doc. 36) is denied. 

 2. Petitioners’ motion to strike state’s response (Doc. 39) is denied. 

 Dated this 21st day of June, 2019.