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Bevel v. Ryan

United States District Court, D. Arizona

April 10, 2014

Gregory A. Bevel, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

REPORT AND RECOMMENDATION

LESLIE A. BOWMAN, Magistrate Judge.

Pending before the court is a petition for writ of habeas corpus filed on November 6, 2012, by Gregory Allen Bevel, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1) Bevel claims sentencing error and ineffective assistance of counsel.

Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order dismissing the petition. It is time-barred.

Summary of the Case

On March 4, 2002, Bevel pleaded guilty pursuant to a plea agreement to sexual conduct with a minor and sexual conduct with a minor under fifteen. (Doc. 11-1, p. 2) On April 1, 2002, the trial court sentenced Bevel to 25 years' imprisonment followed by lifetime probation. (Doc. 11-1, pp. 13-14)

Approximately eight years later on April 19, 2010, Bevel filed notice of post-conviction relief in the trial court. (Doc. 11-1, p. 17) Appointed counsel was unable to find any colorable claims, so Bevel was given the opportunity to file a petition pro se. (Doc. 11-1, pp. 36-39) On June 16, 2011, Bevel filed his petition in which he claimed (1) "his plea was not voluntarily and intelligently made because he was not told that he had a right to have a jury determine the truth of any aggravators alleged by the State" and because he suffered from mental delusions, (2) counsel was ineffective for failing to "assert his client's critical issues" such as "Defendant's mental illness - (PTSD), " and (3) his sentence was disproportionate in violation of State v. Gonzalez, 216 Ariz. 11, 162 P.3d 650 (2007). (Doc. 11-1, pp. 45-46); (Doc. 11-2, p. 28, n. 2) In its response, the state argued, among other things, that counsel was not ineffective for failing to raise Bevel's mental health issues because the trial court was already appraised of his mental health issues in the pre-sentence report, which discussed his suicidal thoughts after arrest and his history of sexual abuse. (Doc. 11-2, p. 10) Moreover, the report contains a statement made by Bevel that "he did not feel he needed psychiatric treatment." (Doc. 11-2, p. 10)

The trial court denied the petition on August 17, 2011. (Doc. 11-2, p 27) The court found most of Bevel's claims precluded as untimely. (Doc. 11-2, p. 29) His Blakely claim was denied on the merits, and his Gonzalez claim was denied as not ripe. (Doc. 11-2, pp. 29-30)

Bevel filed a motion for reconsideration arguing his mental disorder rendered his plea neither intelligent nor voluntary and requesting a hearing on his competency. (Doc. 11-2, p. 33) The trial court denied the motion summarily. (Doc. 11-2, p. 37) On February 17, 2012, the Arizona Court of Appeals granted review but denied relief. (Doc. 11-2, p. 51) The Arizona Supreme Court denied review on July 24, 2012. (Doc. 11-2, p. 59)

On November 5, 2012, Bevel filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, p. 11) He argues (1) his sentence violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004); (2) trial counsel was ineffective for, among other things, failing "to request that a psychiatric evaluation of the defendant's competency be done at the pre-trial stage of the proceedings"; (3) his sentence was disproportionate; and (4) his sentence of lifetime probation violates State v. Gonzalez, 216 Ariz. 11, 162 P.3d 650 (2007) because that case changes the sentencing range he would face if he violates his probation. (Doc. 1)

On March 19, 2013, the respondents filed a limited answer arguing among other things that the petition is time-barred. (Doc. 13) Bevel filed a reply on April 22, 1013. (Doc. 12)

Discussion

The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, however, must be filed within the applicable statute of limitations or it will be dismissed. The statute of limitations reads in pertinent part as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...

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