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Giso v. Ryan

United States District Court, D. Arizona

May 10, 2016

Leonard Frank Giso, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN, District Judge.

         Pending before the court is a petition for writ of habeas corpus filed on December 21, 2015, by Leonard Frank Giso. (Doc. 1) Giso is currently incarcerated in the Arizona State Prison Complex in Douglas, Arizona. Id.

         Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. Giso's two convictions for engaging in a fraudulent scheme or artifice were not multiplicitous.

         Summary of the Case

         Giso fraudulently offered for rent two apartments that he did not, in fact, own. He collected money from the prospective tenants and then disappeared when they found they were unable to move in. The following evidence was presented at trial:

         In 2012 and 2013, Giso approached E.C. and discussed leasing space in E.C.'s strip mall. (Doc. 11, pp. 4-6) During these negotiations, E.C. permitted Giso to stay rent-free in one of E.C.'s furnished corporate apartments. Id. In 2013, Giso stayed for approximately one week at E.C.'s Crescent Ridge apartment complex and one week at E.C.'s Summit Vista apartment complex. Id.

         Around March 6, 2013, W.B. responded to an online classified advertisement for a corporate apartment. (Doc. 11, pp. 4-6) W.B. and his stepson, A.P., met Giso at the Crescent Ridge complex. Id. Giso showed them a furnished one-bedroom apartment. Id. W.B. gave Giso approximately $500 to rent the apartment, but the key Giso gave him did not fit the door. Id. When his money was not promptly refunded, W.B. contacted the police. Id.

         Around March 9 or 10, 2013, S.S. responded to a similar advertisement. (Doc. 11, pp. 4-6) S.S. gave Giso approximately $550 to rent an apartment at the Crescent Ridge complex. Id. When Giso repeatedly delayed S.S.'s move-in date, S.S. asked for a refund. Id. Giso then stopped communicating with S.S. Id.

         On April 6, 2013, S.F. responded to an online advertisement for a furnished apartment. (Doc. 11, pp. 4-6) Giso showed S.F. a furnished apartment in the Summit Vista apartment complex. Id. S.F. gave Giso $650 to rent the apartment. Id. Giso delayed S.F.'s move-in date and then failed to refund S.F.'s money. Id.

         Also on April 6, 2013, J.G. responded to a similar advertisement. (Doc. 11, pp. 4-6) J.G. and her husband C.G., gave Giso $500 to rent a two-bedroom apartment in the Summit Vista apartment complex. Id. J.G. requested a refund when she discovered that Giso was not an owner of the building as he claimed. Id. Giso did not refund J.G.'s money. Id.

         Giso was charged with two counts of engaging in a fraudulent scheme or artifice, two counts of forgery, and one count of theft. (Doc. 11, p. 6) Count 1 of the indictment was based on the fraudulent scheme involving the Crescent Ridge apartments. Id. Count 2 was based on the fraudulent scheme involving the Summit Vista apartments. Id.

         Immediately before his trial, Giso pleaded guilty to one count of theft. (Doc. 11, p. 7) Giso was convicted after a jury trial of the remaining four counts. (Doc. 11, pp. 12-16) The trial court sentenced Giso to an aggregate prison term of 18.5 years. (Doc. 11, p. 7)

         On direct appeal, Giso argued the two counts of engaging in a fraudulent scheme or artifice were multiplicitous. (Doc. 11, p. 26) The Arizona Court of Appeals affirmed his ...


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