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Amon-Ra v. Ryan

United States District Court, D. Arizona

October 21, 2016

Nubian Amon-Ra, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN, UNITED STATES MAGISTRATE JUDGE

         Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed on May 4, 2016, by Nubian Amon-Ra, an inmate confined in the Arizona State Prison Complex in Douglas, Arizona. (Doc. 1)

         Also pending is a motion for writ of habeas corpus ad prosequendum filed by the petitioner on August 24, 2016. (Doc. 18)

         Pursuant to the Rules of Practice of this Court, this 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 and the motion. Counsel was not ineffective for failing to raise the issue of police misconduct at trial. Amon-Ra's claim that his sentence violates Arizona law is not cognizable.

         Summary of the Case

         Amon-Ra was found guilty after a jury trial of aggravated assault with a deadly weapon and aggravated assault resulting in a fracture. (Doc. 20, pp. 18-19) “Amon-Ra and at least one other individual beat the victim with a wooden board and other implements, resulting in the victim's hand being broken as he tried to protect himself.” (Doc. 21, p. 4) Apparently, the defendant believed that the victim failed to pay a drug debt. (Doc. 25, pp. 22-25) The trial court sentenced Amon-Ra to “concurrent prison terms, the longer of which is 7.5 years.” (Doc. 21, p. 4); (Doc. 20, pp. 18-19)

         Amon-Ra filed a notice of appeal, but counsel was unable to find any meritorious issues to raise. (Doc. 20, p. 37) Amon-Ra then filed a petition pro se in which he argued that (1) the trial court erred when it denied as untimely his motion pursuant to Ariz.R.Crim.P. 5.5 for review of the preliminary hearing and (2) the government caused that motion to be untimely by its failure to timely disclose a transcript of the preliminary hearing. (Doc. 20, pp. 51-56) Apparently, the preliminary hearing was conducted without the presence of a court reporter. (Doc. 20, p. 50) And, the audio recording preserved only the questions asked, not the witnesses' testimony. (Doc. 20, p. 50); (Doc. 21, p. 5); (Doc. 1-5, p. 1) The Arizona Court of Appeals affirmed his convictions and sentences on September 15, 2014. (Doc. 21, pp. 3-6) Amon-Ra did not seek review from the Arizona Supreme Court. (Doc. 1, p. 5)

         Amon-Ra filed notice of post-conviction relief, but counsel was unable to find any colorable claims. (Doc. 21, p. 12) Amon-Ra then filed a petition pro se in which he argued (1) trial counsel was ineffective for failing to present evidence of police misconduct, (2) the government engaged in misconduct when Sierra Vista police offered the victim money to testify against the defendant, and (3) the prosecutor engaged in misconduct when he prosecuted this action knowing the victim was a paid informant. (Doc. 21-11, pp. 2-5); (Doc. 21-12, p. 3)

         The trial court found claims (2) and (3) were precluded pursuant to Ariz.R.Crim.P. 32.2(a) because they could have been presented on direct appeal. (Doc. 22, p. 3) The court found that trial counsel's failure to raise the issue of police misconduct was “clearly a tactical decision.” (Doc. 22, p. 4) Furthermore, Amon-Ra failed to present any evidence proving that counsel's performance was deficient. Id. The trial court denied the petition on November 3, 2015. (Doc. 22, p. 4)

         The Arizona Court of Appeals granted review but denied relief on April 22, 2016 adopting the reasoning of the trial court. (Doc. 22, pp. 36-38) Amon-Ra did not seek review from the Arizona Supreme Court. (Doc. 1, p. 5)

         On May 4, 2016, Amon-Ra filed the pending petition for writ of habeas corpus. (Doc. 1) He claims (1) counsel was ineffective for failing to introduce evidence that the police conspired to pay the victim money to testify against the defendant, (2) the government engaged in misconduct when Sierra Vista police offered the victim money to testify against the defendant, (3) the prosecutor engaged in misconduct when he prosecuted this action knowing the victim was a paid informant, (4) the trial judge abused his discretion when he held that video evidence of the bribe could not be presented in accordance with a local rule, (5) his sentence was illegal because under Arizona law a sentence cannot be enhanced for using a deadly weapon where the weapon is an element of the offense, and (6) the trial judge abused his discretion by suppressing evidence by invoking a local rule. (Doc. 1)

         On August 24, 2016, Amon-Ra filed a motion for writ of habeas corpus ad prosequendum. (Doc. 18) In that motion, Amon-Ra argues again that his sentence was illegal under Arizona law because a sentence cannot be enhanced for using a deadly weapon where that weapon is an element of the offense. Id.

         In their answer, the respondents argue Amon-Ra's claims are non-cognizable, procedurally defaulted, or otherwise without merit. (Doc. 19) Amon-Ra filed a reply on September 30, 2016. (Doc. 29)

         Discussion

         The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, ...


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