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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

 TO THE HONORABLE PAUL G. ROSENBLATT, SENIOR UNITED STATES 

DISTRICT JUDGE: 

 Petitioner Shaun Chase Escobedo, who is currently confined in an Arizona State 

Prison, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 

2254. (Doc. 1.) 

I. BACKGROUND 

a. FACTUAL BACKGROUND AND TRIAL PROCEEDINGS 

 The Presentence Report summarized the facts as follows: 

On January 24, 2009, the defendant robbed three convenience 

store clerks at gunpoint within a forty-five-minute period. The first robbery occurred at an AM/PM store (count one) when 

the defendant approached cashier Jorge Rodriguez Valencia, pointed a handgun at him, and demanded all the money in the cash register. Mr. Valencia opened the register and gave the defendant approximately $199.00 in cash. As the defendant 

left the store, he pointed the gun to the floor and fired it. 

Shaun Chase Escobedo, 

Petitioner, 

vs. 

Charles L. Ryan, et al., 

Respondents. 

 

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CIV-16-00044-PHX-PGR (JZB)

REPORT AND RECOMMENDATION 

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The next armed robbery occurred at a Circle K convenience 

store where the defendant approached cashier Chris Glazier, 

pointed a handgun at him, and demanded he give him all the money in the cash register. Mr. Glazier opened the cash register and stepped back to allow the defendant access; 

however the defendant yelled, “Hand me the fucking money!” 

When Mr. Glazier did not automatically comply, the defendant pulled the slide on the handgun to chamber a round 

and again demanded the money. Mr. Glazier gave the defendant between $30.00 and $40.00. As he left the store, 

the defendant pointed the gun at a customer who was entering the store, and then fled in a truck. 

The defendant committed his third armed robbery at a Valero 

convenience store where he approached cashier John Fitzpatrick, pointed the handgun at him, and demanded all the 

money from the cash drawer. Mr. Fitzpatrick opened the cash register and stood back to allow access. The defendant took 

$167.00 from the register and fled in a pickup truck. 

All three robberies were recorded on store surveillance tape. The following evening, police responded to another gas 

station where the defendant was detained for panhandling. The defendant, who was wearing the same clothing as the previous day, admitted his involvement in all three robberies, 

despite the fact he could not recall the events of the evening because he was extremely intoxicated. He told police he traded the handgun he used to commit the robberies (which 

records showed had been reported stolen) for $30.00 worth of 

cocaine. 

(Doc. 9-1, Ex. B, at 8.) 

 On February 2, 2009, a grand jury indicted Petitioner for three counts of Armed 

Robbery and one count of Unlawful Discharge of a Firearm. (Doc. 9-1, Ex. A, at 3-4.) 

 On June 15, 2009, Petitioner pleaded guilty to two counts of Armed Robbery, with 

a cap of 30 years imprisonment and no agreements regarding concurrency. (Doc. 9-1, Ex. 

C, at 16.) The agreement contained the following appeal waiver: 

Unless this plea is rejected by the court or withdrawn by either party, the Defendant hereby waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court’s 

entry of judgment against him and imposition of a sentence 

upon him consistent with this agreement. By entering this agreement, the Defendant further waives and gives up the right to appeal. 

(Id. at 17.) 

 On September 16, 2009, the court sentenced Petitioner to presumptive terms of 

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10.5 years of imprisonment to run consecutively. (Doc. 9-1, Ex. E, at 23-24.) 

b. PETITION FOR POST-CONVICTION RELIEF 

 On August 18, 2010, Petitioner filed a Rule 32 petition for post-conviction relief, 

which the Maricopa County Superior Court denied on January 5, 2011. (Doc. 6 at 1; Doc. 

1 at 6.) 

 On May 3, 2011, Petitioner filed a petition for review, which was denied by the 

Arizona Court of Appeals on February 27, 2013. (Doc. 6 at 1; Doc. 1 at 9.) On August 

29, 2014, Petitioner filed a petition for review with the Arizona Supreme Court, which 

was denied on November 24, 2014. (Doc. 6 at 1; Doc. 1 at 12.) 

c. FEDERAL PETITION FOR WRIT OF HABEAS CORPUS 

 On December 16, 2015, Petitioner mailed the instant Petition for Writ of Habeas 

Corpus. (Doc. 1.) Petitioner asserts two grounds for relief, which allege that counsel was 

ineffective at sentencing for failing to argue for concurrent sentences and failing to 

present mitigation evidence. (Doc. 1 at 13-14.) 

 On April 15, 2016, Respondents filed an Answer. (Doc. 9.) Petitioner did not file 

a Reply. 

II. APPLICATION OF LAW 

The writ of habeas corpus affords relief to persons in custody pursuant to the 

judgment of a state court in violation of the Constitution, laws, or treaties of the United 

States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by 

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244.

a. THE PETITION 

 The AEDPA imposes a one-year limitation period, which begins to run “from the 

latest of . . . the date on which the judgment became final by the conclusion of direct 

review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 

Petitioner’s PCR proceedings concluded on November 24, 2014 when the Arizona 

Supreme Court denied review. (Doc. 1 at 12.) Petitioner’s conviction thus became final 

90 days later on February 24, 2015, when the period for filing a petition for writ of 

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certiorari with the United States Supreme Court expired. Petitioner mailed the instant 

Petition on December 16, 2015. Therefore, the Petition is timely. 

 Petitioner raises two grounds in the Petition for Writ of Habeas Corpus: (1) his 

Sixth and Fourteenth Amendment rights were violated because his counsel provided 

ineffective assistance during sentencing when counsel failed to argue for concurrent 

sentences; and, (2) his Sixth and Fourteenth Amendment rights were violated because his 

counsel provided ineffective assistance when counsel failed to “argue issues raised by a 

mitigation expert and present the expert as a witness for testimony at sentencing as 

requested.” (Doc. 1.) The Court analyzes each claim below. 

b. LAW

i. Procedural Default 

 Ordinarily, a federal court may not grant a petition for writ of habeas corpus 

unless a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To 

exhaust state remedies, a petitioner must afford the state courts the opportunity to rule 

upon the merits of his federal claims by “fairly presenting” them to the state’s “highest” 

court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) 

(“[t]o provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly 

present’ his claim in each appropriate state court . . . thereby alerting that court to the 

federal nature of the claim”). 

 A claim has been fairly presented if the petitioner has described both the operative 

facts and the federal legal theory on which his claim is based. See Baldwin, 541 U.S. at 

33. A “state prisoner does not ‘fairly present’ a claim to a state court if that court must 

read beyond a petition or a brief . . . that does not alert it to the presence of a federal 

claim in order to find material, such as a lower court opinion in the case, that does so.” Id. 

at 31–32. Thus, “a petitioner fairly and fully presents a claim to the state court for 

purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the 

proper forum, . . . (2) through the proper vehicle, . . . and (3) by providing the proper 

factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th 

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Cir. 2005) (internal citations omitted). 

 The requirement that a petitioner exhaust available state court remedies promotes 

comity by ensuring that the state courts have the first opportunity to address alleged 

violations of a state prisoner’s federal rights. See Duncan v. Walker, 533 U.S. 167, 178 

(2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991), superseded in part by, 28 

U.S.C. § 2255(b). Principles of comity also require federal courts to respect state 

procedural bars to review of a habeas petitioner’s claims. See Coleman, 501 at 731-32. 

ii. Merits Review

 If a habeas petition includes a claim that was “adjudicated on the merits in State 

court proceedings,” federal court review is limited by § 2254(d). Under § 2254(d)(1), a 

federal court cannot grant habeas relief unless the petitioner shows: (1) that the state 

court’s decision “was contrary to” federal law as clearly established in the holdings of the 

United States Supreme Court at the time of the state court decision, Greene v. Fisher, 132 

S.Ct. 38, 43 (2011); (2) that it “involved an unreasonable application of” such law, § 

2254(d)(1); or (3) that it “was based on an unreasonable determination of the facts” in 

light of the record before the state court. 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 

562 U.S. 86, 100 (2011). This standard is “difficult to meet.” Harrington, 562 U.S. at 

102. It is also a “highly deferential standard for evaluating state court rulings, which 

demands that state court decisions be given the benefit of the doubt.” Woodford v. 

Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks 

omitted). 

 A state court’s decision is “contrary to” federal law if it applies a rule of law “that 

contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of 

facts that are materially indistinguishable from a decision of [the Supreme Court] and 

nevertheless arrives at a result different from [Supreme Court] precedent.” Mitchell v. 

Esparza, 540 U.S. 12, 14 (2003) (citations omitted). 

 A state court decision is an “unreasonable application of” federal law if the court 

identifies the correct legal rule, but unreasonably applies that rule to the facts of a 

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particular case. Brown v. Payton, 544 U.S. 133, 141 (2005). “A state court’s 

determination that a claim lacks merit precludes federal habeas relief so long as 

‘fairminded jurists could disagree on the correctness of the state court’s decision.’” 

Richter, 131 S.Ct. at 786 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

 When a state court decision is deemed to be “contrary to” or an “unreasonable 

application of” clearly established federal law, a petitioner is not entitled to habeas corpus 

relief unless the erroneous state court ruling also resulted in actual prejudice as defined in 

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 

III. DISCUSSION 

a. PRELIMINARY ISSUES 

 Respondents argue the Petitioner’s guilty plea precludes habeas review. (Doc. 9 at 

5.) Respondents cites to United States v. Broce, 488 U.S. 563, 574 (1989) (holding that 

double jeopardy challenge was waived by guilty plea). But Broce does not stand for the 

proposition that a guilty plea waives all claims of ineffective assistance of counsel at 

sentencing. Instead, as quoted by Respondents, Broce states that a plea of guilty may not 

be collaterally attacked. “When a criminal defendant has solemnly admitted in open court 

that he is in fact guilty of the offense with which he is charged, he may not thereafter 

raise independent claims relating to the deprivation of constitutional rights that occurred 

prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). See 

also United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994) (noting that the “plea agreement 

entered into by the government and Pruitt did not waive Pruitt’s right to bring a § 2255 

motion alleging ineffective assistance of counsel”). 

 Respondents argue Petitioner waived his appeal and habeas rights under the terms 

of his plea agreement. (Doc. 9 at 6.) Respondents argue the “language of the waiver here 

clearly and unambiguously precludes the instant habeas petition.” (Id.) Respondents cite 

to United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) and argue it holds “that a 

defendant waives the right to argue ineffective assistance of counsel at sentencing when 

he waives the right to appeal the sentence.” But the next paragraph in Nunez adds that a 

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“general waiver of appeal in a plea agreement ‘does not waive the right to bring a § 2255 

motion unless it does so expressly.’” Id. citing Pruitt, 32 F.3d at 433. The Court in Nunez

found that “[t]here is no indication that Nunez expressly waived the right to argue 

ineffective assistance of counsel in a section 2255 motion.” Id. Similarly here, the plea 

agreement waiver states only that Petitioner “further waives and gives up the right to 

appeal.” (Doc. 9 at 5, quoting plea agreement) (emphasis added). 

 Also, the State did not argue that the appeal waiver applied to Petitioner’s claims 

in his PCR proceeding, but instead argued “Defendant has failed to present a material 

question of law or fact which would entitle him to relief in post-conviction proceedings.” 

(Doc. 11-1, Ex. C, at 30.) The “[f]ailure to set forth an affirmative defense in an answer 

may be treated as a waiver of the defense.” Day v. McDonough, 547 U.S. 198, 209-11 

(2006); United States v. Barron, 172 F.3d 1153, 1156 (9th Cir. 1999) (en banc). The 

Court does not find that Petitioner’s claims are precluded. 

b. EXHAUSTION 

 Respondents argue that “Petitioner has never raised his claim of ineffective 

assistance of counsel asserted in Ground 1 to any state court.” But Petitioner’s claims 

here mirror verbatim the claims in the PCR petition. In his PCR proceeding, Petitioner 

alleged that “[c]ounsel provided ineffective assistance at sentencing in violation of the 

Sixth and Fourteenth Amendments to the United States Constitution when counsel failed 

to argue that the sentences issued to the Petitioner should have been concurrent.” (Doc. 

11-1, Ex. C, at 26.) This is precisely the claim raised by Petitioner in the Petition. (Doc. 1 

at 13.)1

 Ground Two similarly matches the PCR allegation. 

c. GROUND ONE 

 Petitioner’s claim in Ground One fails on the merits. Petitioner’s counsel at 

sentencing spoke on Defendant’s behalf, and his comments are contained in four pages of 

the sentencing transcript. (Doc. 11-1, Ex. A, at 8-11.) In his concluding request, 

 

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 The trial court did not address this claim when it denied post-conviction relief, 

which may explain Respondents’ response. (Doc. 1 at 7.) 

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Petitioner’s counsel stated that “accordingly, we will ask the Court to impose concurrent 

sentences in this matter, and Mr. Escobedo will agree to pay the $202.20 in restitution, 

and we will ask for presentence incarceration credit.” (Doc. 11-1 at 11.) Petitioner’s 

straightforward claim is belied by the clear evidence of the sentencing transcript. 

d. GROUND TWO 

 Petitioner’s claim in Ground Two fails because Petitioner does not establish that 

the state court ruling is contrary to clearly established law. Generally, claims of 

ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 

U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient 

performance—counsel’s representation fell below the objective standard for 

reasonableness; and (2) prejudice—there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

Id. at 687-88. “When the claim at issue is one for ineffective assistance of counsel, 

moreover, AEDPA review is doubly deferential . . . because counsel is strongly presumed 

to have rendered adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment . . . [and] federal courts are to afford both the state 

court and the defense attorney the benefit of the doubt.” Woods v. Etherton, 136 S. Ct. 

1149, 1151 (2016) (per curiam) (quotations and citations omitted). 

 Regarding this claim, the trial court ruled: 

Defendant claims that his counsel was ineffective for not 

presenting live testimony regarding mitigating evidence. The 

Court notes that defense counsel did use the services of a 

mitigation specialist who prepared a memorandum that specifically laid out the mitigating factors that existed, defense counsel also gave oral argument to the Court regarding mitigation and presentence report contained a discussion of mitigation. The use of a mitigation specialist is unusual and beyond what is the usual practice of defense counsel at sentencings in general. Live testimony was not 

necessary when a report was provided to the Court and supplemented by argument and live testimony would not have made a difference. 

(Doc. 1 at 7.) 

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 Petitioner fails to establish counsel was ineffective by failing to call a live witness. 

First, counsel was not required to submit an expert mitigation report at sentencing. 

“Counsel has no absolute duty to present mitigating character evidence” at all, Mitchell v. 

Kemp, 762 F.2d 886, 889 (11th Cir.1985), and “trial counsel’s failure to present 

mitigating evidence is not per se ineffective assistance of counsel,” Stevens v. Zant, 968 

F.2d 1076, 1082 (11th Cir. 1992). Also, a live witness may have been cross-examined by 

the prosecution, resulting in the introduction of negative evidence. See Foster v. Schomig, 

223, F.3d 626, (7th Cir. 2000) (finding the decision to not call a live mitigation expert 

was not ineffective because “we have noted before in cases like this one, there is a strong 

possibility that the defendant’s mitigation evidence might turn out to be aggravating.”). 

As the trial court noted, counsel routinely submit reports and argue mitigation rather than 

call live witnesses. Counsel was not ineffective by failing to present a live witness. 

 Even if the failure to call the mitigation witness was ineffective, Petitioner has 

failed to demonstrate prejudice. Petitioner must prove there is “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694. The trial court determined live testimony from the 

witness “would not have made a difference.” (Doc. 1 at 7.) The Arizona Court of Appeals 

considered the trial court ruling and denied review. (Doc. 1 at 9.) Petitioner contends that 

a live witness would “offer a more compelling point of view than cold records of facts.” 

(Doc. 1 at 14.) Petitioner’s conclusory statement is insufficient to establish prejudice. See 

Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (“[T]he absence of evidence cannot overcome the 

strong presumption that counsel’s conduct [fell] within the wide range of reasonable 

professional assistance.”) (internal quotations and citations omitted). 

 This Court finds that the state courts’ rulings were not contrary to clearlyestablished law. Accordingly, the Court will recommend that Petitioner’s claim as 

asserted in Ground Two of his habeas petition be denied. 

CONCLUSION

 The record is sufficiently developed and the Court does not find that an 

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evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 

F.3d 1027, 1041 (9th Cir. 2011); Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010). 

The Court will therefore recommend that the Petition for Writ of Habeas Corpus (Doc. 1) 

be denied and dismissed with prejudice. 

IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas 

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH 

PREJUDICE. 

 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 

leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not 

made a substantial showing of the denial of a constitutional right. 

 This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 

Appellate Procedure, should not be filed until entry of the district court’s judgment. The 

parties shall have 14 days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); 

Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file 

a response to the objections. 

 Failure to timely file objections to the Magistrate Judge’s Report and 

Recommendation may result in the acceptance of the Report and Recommendation by the 

district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 

1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the 

Magistrate Judge will be considered a waiver of a party’s right to appellate review of the 

findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s 

recommendation. See Fed. R. Civ. P. 72. 

 Dated this 19th day of December, 2016. 

Honorable John Z. Boyle

United States Magistrate Judge

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