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Gallagher v. Ryan

United States District Court, D. Arizona

April 16, 2014

Michael Francis Gallagher, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

MARK E. ASPEY, District Judge.

TO THE HONORABLE G. MURRAY SNOW:

Petitioner, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 on or about September 16, 2013, which was docketed on October 9, 2013. Respondents filed a Limited Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 9) on March 7, 2014. Petitioner filed a reply to the answer to his petition on April 16, 2014. See Doc. 12.

I Procedural History

An information issued July 2, 2003, charged Petitioner with one count of aggravated robbery and one count of burglary in the second degree, both classified as class 3 felonies. See Answer, Exh. A. The state subsequently alleged that Petitioner had three historical prior felony convictions and that he committed the charged offenses while released from confinement on a prior conviction for armed robbery. Id., Exhs. B & C. On November 20, 2003, a jury found Petitioner guilty as charged. Id . Exh. D.

At sentencing on December 19, 2003, the state trial court found that Petitioner had three prior felony convictions and sentenced him to consecutive aggravted terms of twenty years incarceration on each count of conviction. Id., Exh. E.

Petitioner took a timely appeal of his convictions and sentences on January 8, 2004. Id., Exh. F. In his direct appeal Petitioner asserted: (1) the trial court abused its discretion in finding an adequate evidentiary foundation to support the admission of several trial exhibits; (2) the trial court abused its discretion in admitting the Department of Corrections' "prison packet" without sufficient evidentiary foundation to establish Petitioner's prior felony convictions; and (3) the trial court erred in imposing consecutive sentences. Id., Exh. G. Petitioner also filed a supplemental opening brief, raising an additional sentencing issue relating to aggravating factors. Id., Exh. I.

In a decision issued February 1, 2005, the Arizona Court of Appeals upheld Petitioner's convictions but remanded the case for re-sentencing upon finding that the imposition of consecutive sentences "constituted fundamental error." Id., Exh. K.

On remand on July 1, 2005, the trial court re-sentenced Petitioner to aggravated but concurrent terms of twenty years imprisonment on each of the two counts of conviction. Id., Exh. N. Although Petitioner filed a notice of appeal from his re-sentencing, he then submitted a motion to dismiss his appeal on September 29, 2005. Id., Exhs. O & P. The Arizona Court of Appeals dismissed the appeal on October 21, 2005. Id., Exh. Q.

Petitioner initiated a total of four state post-conviction ("PCR") proceedings pursuant to Rule 32, Arizona Rules of Criminal Procedure. Petitioner initiated his first Rule 32 action on January 9, 2004, the day after Petitioner filed his first notice of appeal in the Arizona Court of Appeals. Id., Exhs. R & S. The trial court granted Petitioner's motion to dismiss the Rule 32 action on March 3, 2004. Id., Exh. V.

Petitioner initiated a second Rule 32 proceeding on July 14, 2005. Id., Exh. W. The trial court appointed counsel for Petitioner, and also found that "the filing of the [PCR notice] is timely as to the defendant's re-sentencing only." Id., Exh. X. On January 3, 2006, Petitioner's counsel filed a "petition for leave to file delayed notice of post conviction relief." Id., Exh. Y. On May 2, 2006, the trial court denied Petitioner's petition for leave to file a delayed PCR petition. Id., Exh. CC. Petitioner filed a petition for review in the Arizona Court of Appeals, which denied review on April 26, 2007. Id., Exhs. DD & EE.

On March 19, 2008, Petitioner filed a third notice pursuant to Rule 32. Id., Exh. HH. Petitioner asserted that he was denied his right to the effective assistance of counsel, that the trial court should not have admitted evidence of his "alleged confession" and that he was entitled to a voluntariness hearing, and that he "should've been given the presumptive term [of imprisonment]." Id., Exh. II. In a decision issued April 11, 2008, the state trial court found that Petitioner's post-conviction petition was untimely pursuant to Rule 32.4(a), Arizona Rules of Criminal Procedure, and that Petitioner was "precluded from relief on these claims pursuant to Rule 32.2(a) of the Arizona Rules of Criminal Procedure, because these claims either could or should have been raised on appeal or in a prior Rule 32 proceeding." Id., Exh. JJ.

Petitioner filed a "notice of appeal" on April 22, 2008. Id., Exh. KK. The Arizona Court of Appeals sent Petitioner a letter explaining that his notice of appeal did not comply with Rule 32.9(c) of the Arizona Rules of Criminal Procedure, and allowing Petitioner thirty days to re-file a proper petition for review. Id., Exh. LL. On June 20, 2008, the Arizona Court of Appeals dismissed the proceedings, noting that Petitioner had not filed a compliant petition for review or a request for an extension of time to do so. Id., Exh. MM.

On June 13, 2008, Petitioner initiated a fourth Rule 32 proceeding, and also filed a motion to modify his sentences. Id., Exh. PP. In this Rule 32 action Petitioner raised the same three claims raised in his third Rule 32 action. On August 5, 2008, the state trial court dismissed this proceeding and denied Petitioner's motion to modify his sentences. Id., Exh. QQ. The state trial court expressly found that the state post-conviction action was untimely pursuant to Rule 32.4(a), Arizona Rules of Criminal Procedure and that Petitioner was "precluded from relief on these claims ...


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