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Schenck v. Ryan

United States District Court, Ninth Circuit

December 17, 2013

Jeffrey Alan Schenck, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

MICHELLE H. BURNS, Magistrate Judge.

Petitioner Jeffrey Alan Schenck, who is confined in the Arizona State Prison Complex, South Unit, Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer on July 17, 2013 (Doc. 12). On August 13, 2013, Petitioner filed a Reply (Doc. 13). 9

BACKGROUND

On February 20, 2009, Petitioner was charged by indictment in the Superior Court of the State of Arizona with four counts of Molestation of a Child, Class 2 felonies and dangerous crimes against children. (Doc. 12-1, at 3.) The crimes charged were alleged to have occurred on four separate occasions against the same child under the age of 15. (Id.) Petitioner entered into a plea agreement with the State of Arizona on July 21, 2009, wherein Petitioner agreed to plead guilty to counts one and two, as amended to attempted molestation of a child, class 3 felonies and dangerous crimes against children, citing, in pertinent part, sections 13-1001, 1410, and 604.01[1] of Arizona Revised Statutes. (Docs. 12-1, at 7; 12-2, at 103.) The plea agreement provided that the crime of attempted molestation of a child, as a dangerous crime against children, carried a presumptive sentence of 10 years, a minimum sentence of 5 years and a maximum sentence of 15 years, and that probation up to a life term in length could also be imposed. (Id.) The parties stipulated that Petitioner be sentenced to an aggravated term of 12-years in prison on count one, and lifetime probation on count two, and that the State of Arizona would dismiss counts three and four of the indictment. (Id.)

In the plea agreement, Petitioner agreed to waive and give up any "motions, defenses, objections, or requests which [Petitioner] has made or raised, or could assert hereafter, to the Court's entry of judgment [] and imposition of a sentence [] consistent with this agreement. [Petitioner] acknowledges that by entering this agreement he[] will have no right of direct appeal." (Doc. 12-1, at 8.) Petitioner also agreed to "judicial factfinding by preponderance of the evidence as to any aspect or enhancement of sentence." (Id.) Petitioner agreed in open court to the following facts in support of his guilty plea to amended counts one and two of the indictment:

Both incidents occurred on or near Mesa Junior High in Mesa, Arizona. On February 9, 2009, Mr. Schenck knowingly molested or intentionally touched... a child under the age of 15 years, [E.H.], by touching - having sexual contact by touching her vagina or her private areas... over her clothing. And on February 9, 2011[2], in Mesa, Mesa Junior High, in Mesa, Maricopa County, [Petitioner] knowingly touched [E.H.], a child under the age of 15, touched her outer clothing, her vagina, her private areas, for sexual gratification, on both counts....[a]nd this is the same girl but two different dates, one February 9 and one February 11[.]

(Doc. 12-2, at 111.)

The court found that Petitioner's plea was knowingly, intelligently, and voluntarily made and accepted the plea agreement. (Id., at 112.)

Petitioner appeared for sentencing on August 24, 2009, and the trial court sentenced him in accordance with the terms of the plea agreement to 12-years imprisonment on count one, and lifetime probation on count two. (Docs. 12-1, at 26; 12-2, at 116.)

Petitioner timely filed his Notice of Post-Conviction Relief ("PCR") and was appointed counsel. (Doc. 12-1, at 32, 36.) Counsel thereafter filed a notice with the court that he had completed his review of the record and that he was unable to find any claims to raise in post-conviction proceedings. (Id., at 40.) The court then ordered counsel to remain in an advisory capacity and set a 45-day deadline for Petitioner to file a pro per PCR petition. (Id., at 43.) On August 4, 2010, Petitioner filed his PCR petition, raising five claims:

(1) Petitioner was "denied the right to have all the elements of the crimes found in order to be sentenced pursuant to A.R.S. 13-604.01; Dangerous Crimes Against Children, in violation of [Petitioner]'s 6th Amendment rights of the U.S. Constitution and Art. 2 §3, 23 and 24 of the Arizona Constitution."
(2) Petitioner "was denied the right not to be placed twice in jeopardy for the same offense, guaranteed by the 5th and 14th Amendments of the U.S. Constitution and Article 2 §3, 4 and 10 of the Arizona Constitution."
(3) Petitioner "was denied the right to not be put twice in jeopardy pursuant to the 5th and 14th Amendments of the U.S. Constitution and Article 2 §3, 4 and 10 of th Arizona Constitution when he was convicted of and sentenced to a lesser and greater offense involving the same crime."
(4) Petition "was denied the right to not be twice placed in jeopardy as guaranteed by the 5th and 14th Amendments of the U.S. Constitution and Article 2 §3, 4 and 10 of the Arizona Constitution."
(5) Petitioner's "right not to be subjected to cruel and unusual punishment, guaranteed by the 8th Amendment of the U.S. Constitution and Article 2 §15 of the Arizona Constitution, ...

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