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Mitchell v. Ryan

United States District Court, D. Arizona

October 6, 2014

Jeffrey Lee Mitchell, Petitioner,
v.
Charles Ryan, et al., Respondents.

ORDER

BERNARDO P. VELASCO, Magistrate Judge.

On March 13, 2012, Petitioner, Jeffrey Lee Mitchell, filed a Petition titled "Ex Parte Habeas Corpus" ("Petition"). (Doc. 1.)[1] The Court dismissed the Petition with leave to amend. (Doc 5.) On June 4, 2012, Petitioner filed an amended petition ("Amended Petition"). (Doc. 6.) Respondents filed answer to the Amended Petition ("Answer") with exhibits A through U attached. (Docs. 17-18). Petitioner did not file a reply.

In accordance with provisions of Title 28, U.S.C. § 636(c)(1), all parties consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 19) On November 19, 2013, this matter was reassigned to Magistrate Judge Bernardo P. Velasco. (Doc. 20)

On March 26, 2014, the Court entered an order finding the Petition timely but dismissing all but one ineffective assistance of counsel (IAC) claim as procedurally defaulted or for failing to present a cognizable claim. (Doc. 21.) The Court directed Respondents to file a supplemental answer, addressing the IAC claim (Ground One (b) as designated by this Court), and providing time for Petitioner to file a supplemental reply. ( Id. ) On April 25, 2014, Respondents filed a Supplemental Answer addressing the IAC claim in Ground One (b) on the merits. (Doc. 22.) Petitioner did not file a supplemental reply.

For the reasons discussed below, the Magistrate Judge dismisses the remaining claim in the Amended Petition, Ground One (b), and denies the Amended Petition in its entirety.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Proceedings in the Trial Court

Mitchell was charged with one count of theft and three counts of fraudulent scheme and artifice, arising from various real-estate transactions that the victim, S., had undertaken on Mitchell's advice. (See Ex. Q, at ¶ 2.) Mitchell executed a plea agreement in which he agreed to plead no contest to the amended charge of unlawful use of a power of attorney. (Ex. A, Ex. Q, ¶ 2.) That amended charge as presented in the plea agreement alleged that Mitchell had held a power of attorney from S. and had "committed theft by using or managing assets or property"-specifically, "revenue from the real property located at 1608 Oak Shadows"-with the intent to unlawfully deprive S. of that revenue. (Ex.A, at 1, Ext Q, at ¶ 2.) The plea agreement also expressly stated that the offense was "A Class Six Felony (Undesignated), " with a potential maximum sentence of 2 years' imprisonment, in accord with the statutorily prescribed sentence for a class six felony offense. (Ex. A, at 1-2.)

At the change-of-plea hearing, the trial court described the offense:

The offense that is set forth in the plea agreement states that between February of 2004 and October of 2006 that you, doing business as Mitchell Finance, an agent, holding [S.'s] power of attorney, committed theft by using or managing assets or property with the intent to unlawfully deprive [S.] of that asset or property.

(Ex. B, at 9.) Subsequently, Mitchell's attorney stated to the court that there were aspects of the charge that were incorrect. ( Id. at 9-10.) Mitchell also stated to the court he did not "thoroughly" understand the charges. ( Id. at 10.) In response, Mitchell was informed by the court that "[i]f this charge isn't correct, then it needs to be redrafted to be correct, but it won't do to substitute your verbal recitation of the charges to substitute for what's in the plea agreement." ( Id. at 10-11.) While amending the charge, the court clarified, by asking Mitchell, "And is the thing of value that was the object of the theft revenue?" to which Mitchell replied, "Yes, it would have been what the higher rent would have been[- t]he rent that was to be received by [S.] for the lease of the property." ( Id. at 11) Corrections were made by the court to the plea agreement, and the Court read the charges as amended:

Between February of 2004 and October of 2006 that you, holding [S.'s] power of attorney, committed theft by using or managing assets or property with the intent to unlawfully deprive her of that assert or property described as revenue from the real property located at 1608 Oak Shadows...

( Id. at 11-12.) Mitchell agreed that he understood the charges, and wished to plead no contest to the charge. ( Id. at 12.)

The trial court also asked Mitchell during the hearing if he understood that he was pleading no contest to "a class six undesignated felony, " and Mitchell responded affirmatively. ( Id. at 3.) The court then expressly explained to Mitchell that, although "at some point the Court could designate the matter as a misdemeanor, " the court could alternatively continue in its discretion to "treat[] [it] as a felony." ( Id. at 5-6.) The court also expressly stated as future options the prescribed sentencing range for a class six felony offense and "the maximum fine that could be imposed on any felony, " and that such measures reflected "the whole range of what could happen." ( ...


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