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Hussak v. Ryan

United States District Court, D. Arizona

April 19, 2016

Martin Edward Hussak, Petitioner,
Charles L. Ryan, et al., Respondents.


          JOHN Z. BOYLE, Magistrate Judge.


         Petitioner Martin Edward Hussak has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)


         Petitioner raises three grounds for relief in his timely Petition. Petitioner's claims are meritless. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.


         a. Facts of the Crimes

         On August 20, 2010, officers responded a "shots fired" call. (Doc. 20-3 at 61.) Petitioner's counsel told the court during sentencing proceedings that Petitioner confronted the victims when they came to his residence to repossess a car. (Doc. 20-3 at 35.) Due a "lack of impulse control, " counsel told the court that Petitioner grabbed a gun... "and fire[d] it into the air." ( Id. ) On November 18, 2011, Petitioner pleaded guilty to one count of aggravated assault. (Doc. 20-1 at 4, 5, 8, 12.) During his change of plea, Petitioner agreed to his attorney's summary of his conduct: "In or near Casa Grande and that's in Pinal County and it was on August 20, 2011, my client made a mistake, Judge, and that was shooting a gun in a manner that was threatening, placed an individual in eminent fear of serious harm by holding - firing that gun, and that he did that knowingly and voluntarily." (Doc. 20-1, Ex. D, at 19.)[1]

         b. Sentencing of Petitioner

         On July 3, 2012, after an aggravation/mitigation hearing, Petitioner was sentenced to a presumptive term of 3.5 years of imprisonment. (Doc. 20-1 at 30-49.) Petitioner did not file a direct appeal. (Doc. 20-2 at 2.)

         c. Petitioner's First Post-Conviction Relief Proceeding

         On September 27, 2012, Petitioner filed a notice of post-conviction relief (PCR) pursuant to Rule 32. (Doc. 20-2 at 2.) On October 30, 2012, Petitioner filed a pro se PCR motion alleging that his plea was involuntary and that he received ineffective assistance of trial counsel. (Doc. 20-2 at 4.) On April 29, 2013, the trial court denied Petitioner's petition for PCR on the merits. (Doc. 20-2 at 37.)

         On August 9, 2013, Petitioner filed for review with the Arizona Court of Appeals. On January 14, 2014, the court granted review but denied relief. (Doc. 20-3 at 27, 70.) Petitioner did not seek review of the Arizona Court of Appeals' decision. (Doc. 20-3 at 76.)

         d. Petitioner's Second Post-Conviction Relief Proceeding

         On June 5, 2014, Petitioner filed a second Notice of PCR, which was dismissed as untimely. (Doc. 20-4 at 2, 25.)

         Petitioner sought review with the Arizona Court of Appeals, which granted review but denied relief. (Doc. 20-4 at 28.)

         e. Petitioner's Third Motion for PCR

         The Arizona Court of Appeals recognized that Petitioner's June 5, 2014, Notice of PCR was part of his third PCR proceeding. ( Id. ) On September 8, 2014, the Court of Appeals denied relief. (Doc. 20-4 at 30.)

         f. Petitioner's Federal Habeas Petition

         On April 15, 2015, Petitioner filed this habeas petition. (Doc. 1.) Petitioner filed briefs in support of the Petition (Docs. 4 and 8) and an Appendix in Support of the Petition (Doc. 5). On September 1, 2015, Respondents filed an Answer to the Petition. (Doc. 20.) Petitioner did not file a reply. Petitioner raises three grounds for relief:

1. Trial counsel was ineffective because counsel failed to raise issues during plea negotiations, failed to object to inaccurate information in the plea agreement, and failed to object to inaccurate information in the PSR report.
2. PCR counsel was ineffective because PCR counsel failed to raise Petitioner's claims described in Ground One;
3. Denial of his 4th, 5th, 6th and 14th Amendment rights where the trial court violated his rights for the reasons contained in Ground One, and the trial court improperly dismissed his Rule 32 proceedings.

(Doc. 1 at 6-8.)


         The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. The Petition is timely.

         a. Procedural Default

         Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary opportunity, ' the prisoner must fairly present' his claim in each appropriate state court... thereby alerting that court to the federal nature of the claim").

         A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. SeeBaldwin, 541 U.S. at 33. A "state prisoner does not fairly present' a claim to a state court if that court must read beyond a petition or brief... that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. at 31-32. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum... (2) through the proper vehicle, ... ...

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