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Jessup v. Ryan

United States District Court, D. Arizona

August 31, 2016

Ralph Thomas Jessup, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable Lynnette C. Kimmins United States Magistrate Judge

         Petitioner Ralph Jessup has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents' Answer (Doc. 18), and Petitioner's Reply and Supplement (Docs. 19, 24). The parties have consented to Magistrate Judge jurisdiction.[1] (Doc. 16.)

         FACTUAL AND PROCEDURAL BACKGROUND

         Jessup was convicted in the Pima County Superior Court on one count of theft of means of transportation, four counts of kidnapping, four counts of aggravated assault with a deadly weapon, one count of aggravated robbery, and two counts of armed robbery. (Doc. 18, Ex. B.) Jessup was sentenced to concurrent prison terms, the longest of which is twenty-one years. (Id., Ex. C.)

         The Arizona Court of Appeals summarized the facts in support of Jessup's convictions:

In late 2008, D.H. and M.D. were in their home when several people, including Jessup, kicked open the back door and ordered the couple to the ground. Jessup and his accomplices subsequently tied up D.H. and M.D. and covered their heads with jackets and blankets. The invaders then demanded drugs and anything of value and ransacked the home. Jessup and his companions eventually left in a van that belonged to D.H. and M.D.
D.H. freed himself and called police, who found the van parked in Jessup's back yard. During a search of Jessup's home and garage, officers found numerous items that had been taken from D.H. and M.D., as well as tools used during the home invasion.

(Id., Ex. A at 2 (footnote omitted).)

         Jessup appealed and the Arizona Court of Appeals affirmed his convictions and sentences. (Id., Exs. A, E.) Jessup filed a Notice of Post-conviction Relief (PCR). (Id., Ex. I.) Appointed counsel filed a notice that she could not identify any claims to raise in a PCR petition. (Id., Ex. K.) Jessup submitted a pro se PCR Petition, which the court denied. (Id., Exs. M, Q.) The court of appeals granted Jessup's petition for review but denied relief. (Id., Exs. T, U.) Jessup submitted a second Notice of PCR and appointed counsel averred that he could not identify any claims for relief. (Id., Exs. Z, AA, BB.) Jessup again submitted a pro se petition, which the court denied. (Id., Exs. DD, FF, II.) The court of appeals granted Jessup's petition for review but denied relief. (Id., Exs. PP, QQ.)

         DISCUSSION

         Jessup raises three claims. Respondents contend most of the claims are not cognizable, in whole or in part. They contend the remainder of the claims are procedurally defaulted. The Court first will examine whether each claim is reviewable in this Court and whether it was properly exhausted.

         EXHAUSTION

         Principles of Exhaustion and Procedural Default

         A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). To properly exhaust, a petitioner must “fairly present” the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).

         In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).

         Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). However, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.

         Analysis

         Claim 1

         Jessup asserts three subclaims of ineffective assistance of counsel (IAC). Jessup alleges trial counsel (a) failed to challenge the search warrant, which he alleges was defective because the affidavit was insufficient to support the warrant. Specifically, he argues (i) the warrant and supporting affidavit did not include the garage, and (ii) the telephonic affidavit in support of the warrant did not include the sheds or four of the vehicles listed on the warrant (white pickup, Toyota pickup, black Corvette, and red Chevrolet Beretta).[2] Jessup also alleges PCR counsel was ineffective for failing to (b) discover and challenge the invalid search warrant, and (c) challenge the indictment as defective.

         Claim 1(a)(i)

         In the first PCR proceeding, Jessup alleged trial counsel was ineffective for not challenging an illegal search; specifically, that the police searched a garage not listed on the warrant. (Doc. 18, Ex. M at 5-6.) The state courts ruled on the merits of this claim. (Id., Ex. Q at 3; Ex. U ...


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