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Bunn v. Ryan

United States District Court, D. Arizona

April 28, 2014

Otis Eugene Bunn, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

LAWRENCE O. ANDERSON, Magistrate Judge.

This matter is before the Court on Petitioner's pro se Petition for Writ of Habeas Corpus (the "Petition"), pursuant to 28 U.S.C. § 2254, in which Petitioner challenges his criminal convictions in Maricopa County, Arizona, Superior Court, Case No. CR2005-129654-001 DT. (Doc. 1) Respondents have filed an Answer to Petition for Writ of Habeas Corpus (the "Answer"). (Doc. 10) Petitioner has not filed a reply. As explained below, the undersigned Magistrate Judge recommends the Petition be denied.

I. Background

A. Indictment, Trial and Sentencing

On September 23, 2005, the State of Arizona indicted Petitioner on one count of Fraudulent Schemes and Artifices, a Class Two felony (Count One); one count of Theft, a Class Three felony (Count Two); one count of Possession of Drug Paraphernalia, a Class Six felony (Count Three); and two counts of Forgery, a Class Four felony (Counts Four and Five). (Doc. 10, Exh. B) The charges arose "from the investigation of a series of checks drawn on the victim's Charles Schwab account, without the victim's authorization, and deposited in [Petitioner's] bank account." (Doc. 10, Exh. KKK at 2) The trial court subsequently granted a motion by Petitioner to sever the drug paraphernalia charge from the remaining counts. ( Id. )

A jury trial was held in October 2009 at which Petitioner represented himself.[1] ( Id. ) The jury found Petitioner guilty of Fraudulent Schemes and Artifices and Theft, but not guilty of the two counts of Forgery. ( Id. at 2-3) Petitioner, who had prior felony convictions, was sentenced on May 6, 2010, to concurrent prison terms of 15.75 years on the Fraudulent Schemes conviction and 11.75 years on the Theft conviction. (Doc. 10, Exh. GGG at 15-16)

B. Direct Review

Petitioner filed an untimely pro se Notice of Appeal on June 1, 2010. (Doc. 10, Exh. OOO) Through counsel, Petitioner subsequently obtained permission from the trial court to file a delayed notice of appeal, which was filed on November 3, 2010. (Doc. 10, Exhs. TTT, UUU) In the Opening Brief, Petitioner raised one issue. Petitioner claimed the trial court erred when it failed to determine that Petitioner's decision to waive his right to counsel and represent himself was made knowingly, intelligently and voluntarily. (Doc. 10, Exh. JJJ) On August 21, 2012, the Arizona Court of Appeals issued a Memorandum Decision in which it affirmed Petitioner's convictions and sentences. (Doc. 10, Exh. KKK) Petitioner then filed a pro se Petition for Review in the Arizona Supreme Court in which he raised the same issue that was presented in the Arizona Court of Appeals. (Doc. 10, Exh. LLL) The Arizona Supreme Court summarily denied review on February 13, 2013. (Doc. 10, Exh. MMM)

C. Federal Habeas Petition

On July 12, 2013, Petitioner filed his Petition for Writ of Habeas Corpus in this District Court. (Doc. 1) Petitioner raises one ground for relief in the Petition. Petitioner alleges the trial court's determination that he was able to represent himself was constitutionally defective. Petitioner argues he did not knowingly, intelligently or voluntarily waive his right to trial counsel, and the waiver was not in writing. Petitioner claims the trial court's actions violated his Sixth Amendment right to counsel. On October 25, 2013, Respondents filed their Answer and supporting exhibits. (Doc. 10) As noted above, Petitioner did not file a reply.

II. Discussion

Respondents argue in the Answer that the Petition should be denied and dismissed with prejudice because the Arizona Court of Appeals' resolution of Petitioner's Sixth Amendment claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court precedent.

A. Standard of Review

A federal district court's review of a habeas petitioner's claim is constrained by the standard of review set forth in 28 U.S.C. § 2254(d), as amended in 1996 by the Antiterrorism and Effective Death Penalty Act ("AEDPA").[2] The ADEPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 (2002). The standard in § 2254(d) is intended to be "difficult to meet." Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786 (2011). The statute "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state court proceedings, " and "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Id. (citations omitted). "Section ...


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