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Vickrey v. Ryan

United States District Court, D. Arizona

November 24, 2014

Michael Eugene Vickrey, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER DISMISSING PETITION FOR HABEAS CORPUS

SHARON L. GLEASON, District Judge.

Before the Court is a Petition for Writ of Habeas Corpus ("Petition") filed by Petitioner Michael Eugene Vickrey pursuant to 28 U.S.C. ยง 2254.[1] On May 12, 2014, Magistrate Judge Steven P. Logan issued a Report and Recommendation ("R&R") recommending that the Petition be denied and dismissed with prejudice and that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied.[2] On June 2, 2014, Vickrey filed objections to the R&R.[3]

For the reasons set forth herein, the Court will accept the Magistrate Judge's recommendation to deny the Petition. Accordingly, the Petition will be denied and this action dismissed with prejudice. The Court will also deny a Certificate of Appealability and leave to proceed in forma pauperis.

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2009, a jury convicted Vickrey of molestation of a child and sexual conduct with a minor.[4] The Arizona Superior Court sentenced Vickrey to eleven years of imprisonment for the molestation count and twenty years of imprisonment for the sexual conduct with a minor count, to be served consecutively.[5]

Vickrey appealed to the Arizona Court of Appeals.[6] The appeal presented three issues:

I. Whether Appellant's Conviction is Invalid Because the State Failed to Establish Jurisdiction at Any Point in the Trial.
II. Whether the Court Improperly Denied Appellant's Motion to Preclude Wendy Dutton as a Purported Expert Witness.
III. Whether Appellant Was Entitled to a Mitigated Sentence on Count Two.[7]

On June 11, 2010, the Arizona Court of Appeals affirmed the convictions and sentences.[8] Vickrey did not seek review by the Arizona Supreme Court.[9]

On August 24, 2010, Vickrey filed a Notice of Post-Conviction Relief ("PCR") in the Arizona Superior Court[10] and on July 7, 2011, Vickrey filed a Pro Per Petition for Post-Conviction Relief.[11] The Pro Per PCR raised three issues:

1. Vickrey has been unable to obtain "a copy of the complete clerk's file";
2. The sexual conduct with a minor count was a lesser included offense to the child molestation count and thus "must be vacated as it ...

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