United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, District Judge.
Pending before the court is a petition for writ of habeas corpus filed on July 31, 2013, by John Francis Ree, Jr., an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1) Ree claims various constitutional errors occurred prior to his guilty plea.
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 denying the petition. Three of Ree's claims are not cognizable in habeas corpus. His lone cognizable claim is procedurally defaulted.
Summary of the Case
Ree pleaded guilty pursuant to a plea agreement to "possession of equipment for the purpose of manufacturing a dangerous drug" and to "manufacture of a dangerous drug." (Doc. 10-1 p. 15) The trial court sentenced Ree to two terms of ten years' imprisonment to be served concurrently. (Doc. 10-1, pp. 20-21).
Ree filed a notice of post-conviction relief on August 29, 2011. (Doc. 10-1, p. 24) Appointed counsel was unable to find any meritorious issues, so the trial court gave Ree an opportunity to file a petition pro se. (Doc. 10-1, pp. 31-34) Eventually, Ree filed a petition acceptable to the trial court in which he argued (1) his state and federal constitutional rights were violated, (2) the state presented false and misleading testimony to the grand jury, (3) he was subject to an illegal search and seizure, (4) the trial court failed to conduct a Curio hearing, (5) counsel was ineffective, (6) he was asserting all other rights available under Rule 32, and (7) the record should be expanded. (Doc. 10-3, pp. 31-38) The trial court found only one of Ree's claims cognizable in a Rule 32 proceeding - ineffective assistance of counsel. Id. This claim, the trial court denied on the merits. Id.
The Arizona Court of Appeals granted review but denied relief. (Doc. 10-4, pp 17-20) That court agreed that most of Ree's claims were not cognizable under Rule 32.1. Id. Moreover, even if they were cognizable, they were waived by Ree's guilty plea. Id. After a plea, the only permissible claim would be one that attacks the validity of that plea, and none of Ree's claims did that, not even his ineffective assistance claim. Id. The court found in the alternative that if Ree had raised the validity issue properly, his claim would have been denied on the merits because "the record before us establishes Ree entered the plea agreement knowingly, voluntarily and intelligently...." Id. Ree did not appeal to the Arizona Supreme Court. (Doc. 10, p. 4)
On July 31, 2013, Ree filed the pending petition for writ of habeas corpus. He argues (1) he was entrapped, (2) the search warrant was unconstitutional and his Miranda rights were violated, (3) false and misleading testimony was presented to the grand jury and (4) counsel was ineffective resulting in Ree losing a more favorable plea.
The respondents filed an answer arguing all of Ree's claims are procedurally defaulted or, in the alternative, waived. (Doc. 10) Ree filed a reply on December 4, 2013. (Doc. 11)
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). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...