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Herald v. Ryan

United States District Court, D. Arizona

April 13, 2015

Jeffrey Allen Herald, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

DOUGLAS L. RAYES, District Judge.

Pending before this Court is Jeffrey Allen Herald's Petition for Writ of Habeas Corpus, (Doc. 1), including his "Additional Information to Memorandum filed on 2 October 2014, " (Doc. 7), (collectively, the "Petition"); Respondent's Limited Answer to Petition for Writ of Habeas Corpus, (Doc. 13); Magistrate Judge Aspey's Report and Recommendation ("R&R"), (Doc. 20); and Petitioner's Objection to Report and Recommendation, (Doc. 22). On February 23, 2015, Magistrate Judge Aspey issued his R&R recommending that the Petition be denied and dismissed with prejudice because Petitioner entered into a guilty plea waiving all habeas claims of non-jurisdictional error occurring before he entered the guilty plea; because the state appellate court did not err in finding that Petitioner was not denied his right to effective assistance of counsel and not subjected to judicial bias; and because Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim in state courts.

I. Factual Background

The R&R summarized the factual background and procedural history, and Petitioner did not object to this history. (Doc. 20 at 1-9; Doc. 22.) The Court adopts the R&R's history in this case.

Specifically, a grand jury indictment was returned on September 17, 2008, charging Petitioner with 39 counts of fraudulent schemes and artifices, class 2 felonies, and 39 counts of theft, felonies ranging from class 2 to class 6, depending on the amount allegedly stolen. (Doc. 13 at Ex. A.) Through sentencing, Petitioner had three separate counsel. (Id. at Ex. B-F, H-U.) He was first represented by retained counsel, Mr. Derickson, who withdrew, then by court-appointed counsel, Mr. Wallin, who was replaced by Ms. Shoemaker on October 25, 2010. On August 9, 2011, after undergoing a competency evaluation at Ms. Shoemaker's request, Petitioner's trial was re-set for November 7, 2011. (Id. at Ex. CC.)

At an August 26, 2011, settlement conference, the settlement judge reviewed with Petitioner the charges against him and the potential ranges of sentences. (Id. at Ex. EE.) The state offered a plea agreement, which provided that if Petitioner pled guilty to three counts of fraudulent schemes, class 2 felonies with one prior conviction, and to five additional counts of fraudulent schemes, then the remaining charges would be dismissed. The offer provided that Petitioner would be sentenced to prison with a range of 10 to 20 years on each count of fraudulent schemes, with the court retaining discretion to decide whether the sentences would run concurrently or consecutively. The plea offer also required Petitioner to receive sentences of probation for the five counts of fraudulent schemes, commencing upon Petitioner's release from prison. (Id. at Ex. EE, HH.)

The settlement conference concluded without an agreement, but was continued on September 16, 2011. After negotiation, Petitioner agreed on September 16, 2011, to plead guilty to Amended Counts 1, 3, and 5, fraudulent schemes and artifices, class 2 felonies with one prior felony conviction, each carrying a sentencing range of 4.5 to 18.5 years, and to Counts 7 and 13, fraudulent schemes and artifices to be sentenced as a stipulated probation tail. (Id. at Ex. GG.) The parties agreed that that the sentencing judge would have discretion to decide whether the prison sentences would run consecutively or concurrently and that Petitioner would be sentenced by Judge Granville. (Id. at Ex. FF.) Petitioner changed his plea that day in a change of plea hearing. (Id. at Ex. GG.)

On November 18, 2011, a sentencing hearing was held in which Petitioner presented two character witnesses. Petitioner responded to the prosecutor's argument, claiming the prosecutor's facts were inaccurate and disputing the victim's comments. After a hearing, Judge Granville sentenced Petitioner to mitigated terms of eight years' imprisonment on Counts 1, 3, and 5, with Counts 1 and 3 to run consecutively and Count 5 to run concurrent to Count 3, for an aggregate sentence of 16 years. (Id. at Ex. LL.) Petitioner was sentenced to probation on counts 7 and 13. (Id. )

On December 27, 2011, Petitioner filed a timely pro per Petition for Post-Conviction Relief ("PCR") and counsel was appointed. (Id. at Ex. MM.) On June 29, 2012, counsel filed notice that he was unable to find any colorable claims for relief. (Id. at Ex. NN.) On August 6, 2012, Petitioner filed a pro per PCR. (Id. at Ex. OO.) In his PCR, Petitioner alleged that he was entitled to relief because of ineffective assistance of counsel, failure of the state to provide full disclosure, and trial court error for failing to consider a motion for change of counsel before sentencing and for failing to recuse itself because the judge allegedly knew Petitioner's uncle. Petitioner also argued that he was innocent and the evidence was insufficient to support his convictions. (Id. )

On January 11, 2013, the trial court denied Petitioner's PCR. (Id. at Ex. TT). Petitioner sought review by the Arizona Court of Appeals, which granted review, but denied relief. (Id. at Ex. XX.) The Court of Appeals found that the ineffective assistance claims were without merit, the claim that the state made inadequate disclosure was waived, there was no evidence that Petitioner filed a motion to change counsel before sentencing, there was no evidence of judicial bias or prejudice, and the factual basis Petitioner provided at the change of plea provided a sufficient factual basis. (Id. )

On October 2, 2014, Petitioner filed this Petition. He claims he was denied the right to effective assistance of counsel, he was subjected to an illegal search and seizure, the prosecutor and defense counsel engaged in "corruption, " and the sentencing judge was corrupt and had a major conflict. (Doc. 1).

II. R&R

On February 23, 2015, the Magistrate Judge issued an R&R recommending that this Court deny the Petition on the grounds that Petitioner waived all habeas claims of non-jurisdictional error that occurred before his guilty plea by voluntarily pleading guilty and that the state appellate court did not err in finding that Petitioner was not denied the right to effective assistance of counsel and was not subjected to judicial bias. The R&R also found that Petitioner's Fourth Amendment claim is not cognizable because Petitioner had a full and fair opportunity to litigate that claim in the state courts. (Doc. 20 at 17-26.)

Starting with the waiver of claims, the Magistrate Judge explained that a defendant's voluntary and knowing guilty plea bars federal habeas relief based on pre-plea non-jurisdictional constitutional claims. (Id. at 17 (citing Haring v Prosise, 462 U.S. 306, 319-20 (1983)).) The Magistrate Judge then noted that Petitioner's after-the-fact claims that he was incorrectly advised about the consequences of his plea are not clear and convincing evidence that can overcome the weight of his contemporaneous statements about his understanding of the plea agreement. (Id. at 18.) The Magistrate Judge found that federal habeas relief is precluded for Petitioner's claims of ineffective assistance of counsel that allegedly occurred before his guilty plea and for his allegation that he was denied his Fourth Amendment rights in the investigation of the alleged crimes.

The Magistrate Judge found that any claims of ineffective assistance of counsel that are not precluded by Petitioner's plea of guilty are without merit. (Id. at 19.) The Magistrate Judge analyzed Petitioner's ineffective assistance of counsel claims applying the Strickland v. Washington standard. See 466 U.S. 668, 687 (1984). The Magistrate Judge found that the Arizona Court of Appeals' decision-that Petitioner was not prejudiced by his counsel's alleged prediction of the sentence because the trial court clearly and repeatedly alerted Petitioner to the potential consequences of his guilty plea- was not clearly contrary to nor an unreasonable application of Strickland and Hill v. Lockart, 474 U.S. 52 (1985). (Id. at 19-20.)

As to the Fourth Amendment claim, the Magistrate Judge found that such a claim is not cognizable if the Petitioner had a full and fair opportunity to raise the claim in the state courts. (Id. at 21 (citing Stone v. Powell, 428 U.S. 465, 482, 493 (1976)).) The Magistrate Judge found that, because the record of the state court proceedings showed that Petitioner had a full and fair opportunity to litigate the issue, to the extent that ...


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