United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Z. BOYLE, Magistrate Judge.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Martin Edward Hussak has filed a pro se Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. Â§ 2254. (Doc. 1.)
SUMMARY OF CONCLUSION
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
Facts of the Crimes
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.)
Sentencing of Petitioner
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.)
Petitioner's First Post-Conviction Relief Proceeding
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
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.)
Petitioner's Second Post-Conviction Relief Proceeding
5, 2014, Petitioner filed a second Notice of PCR, which was
dismissed as untimely. (Doc. 20-4 at 2, 25.)
sought review with the Arizona Court of Appeals, which
granted review but denied relief. (Doc. 20-4 at 28.)
Petitioner's Third Motion for PCR
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.)
Petitioner's Federal Habeas Petition
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.)
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. Â§Â§ 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. Â§ 2244. The Petition is
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. Â§ 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
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, ... ...