Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Edgar v. Ryan

United States District Court, D. Arizona

January 31, 2018

Jonathan B. Edgar, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge.

         Currently pending before the Court is Petitioner Jonathan B. Edgar's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 18), as well as a Supplemental Answer to Limited Answer to Petition for Writ of Habeas Corpus (“Supplemental Answer”) (Doc. 29). Petitioner filed a Reply (Doc. 21) to the limited answer, as well as a Supplemental Reply (Doc. 32). The Petition is ripe for adjudication.

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, [1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Initial Charge and Sentencing

         On March 9, 1997, Petitioner was charged with sexual assault, kidnapping, and second degree burglary. See Answer (Doc. 18), Interim Compl. (Exh. “A”). The Arizona Court of Appeal stated the facts[2] as follows:

Pursuant to a plea agreement, Edgar was convicted in June 1997 of second-degree burglary, a class three felony. In August 1997, the trial court suspended the imposition of sentence and placed Edgar on intensive probation for five years. A petition to revoke probation was filed just a few months later; the court continued Edgar on probation in January 1998 after he admitted one of the allegations in the petition. In May 1998, a second petition to revoke probation was filed, asserting, inter alia, that Edgar had “changed his residence without prior approval of his probation officer and his current whereabouts [were] unknown.” Edgar was arrested almost sixteen years later, in April 2014, at which time he admitted having absconded from probation. At the disposition hearing in May 2014, the court imposed a maximum seven-year term of imprisonment, finding as aggravating factors trauma to the victim and Edgar's having absconded, and as a mitigating factor, Edgar's difficult childhood.

Suppl. Answer (Doc. 29), Ariz. Ct. of Appeals, Memorandum Decision 7/14/2015 (Exh. “S”) at 2. . . . . . .

         B. Post-Conviction Relief Proceeding

         On October 14, 2014, Petitioner filed his Petition for Post-Conviction Relief. See Answer (Doc. 18), Pet.'s Pet. for PCR (Exh. “K”). Petitioner presented two (2) grounds for relief, as follows:

1) Petitioner's sentence is in violation of the Constitutions of the United States and the State of Arizona and exceeded the maximum authorized by law because the aggravating factors used to determine his sentence were not proven to a jury beyond a reasonable doubt.
2) Petitioner's counsel at sentencing was ineffective, denying Petitioner his rights under the Sixth Amendment of the United States Constitution because trial counsel failed to recognize that any aggravation must be proved to a jury beyond a reasonable doubt.

Answer (Doc. 18), Exh. “K” at 1.

         First, Petitioner argued that based on his plea, “the maximum sentence faced by Petitioner was the presumptive sentence of 3.5 years, absent an admission or waiver by the Petitioner to allow the Court to find aggravating factors.” Id., Exh. “K” at 3. Petitioner further alleged that because “[n]o such admission or waiver is contained in the record of Petitioner's plea[, ] [n]o jury was convened to consider the aggravating factors[, ] [and] Petitioner had no prior convictions, other than juvenile adjudications[, ] . . . [Petitioner] was denied his right to have facts decided by a jury beyond a reasonable doubt, in violation of his Fifth and Sixth Amendment rights.” Id., Exh. “K” at 3-4. Petitioner also asserted that he was prejudiced by this error, because “it [wa]s not clear that a jury, considering the matter under the standard of beyond a reasonable doubt, would have found the harm to the victim as an aggravating factor.” Id., Exh. “K” at 4.

         Second, Petitioner also argued that trial counsel's actions were not reasonable, requiring the court to determine “whether those deficiencies were prejudicial.” Answer (Doc. 18), Exh. “K” at 5. Petitioner asserted that counsel's alleged failure to review his original plea agreement to determine that Petitioner had not waived his right to have a jury determine any aggravating sentencing factors beyond a reasonable doubt, was prejudicial since “a jury may not have found both aggravating factors beyond a reasonable doubt and the aggravating factors may not have outweighed the mitigating factor.” Id., Exh. “K” at 5.

         Finally, counsel certified that the Petition included every ground known to her that was appropriate for a PCR petition; however, Petitioner wished to raise four (4) issues pro se. Id., Exh. “K” at 5. Petitioner asserted the following:

(1) Petitioner's term of probation expired prior to the revocation and the State failed to timely revoke his probation;
(2) violation of the Double Jeopardy clause of the U.S. constitution as a result of his sentence subsequent to the expiration of his probation;
(3) ineffective assistance of counsel based on a lack of a factual basis for the crime he plead to, burglary, because Petitioner was a leaseholder on the property he was charged with burglarizing; [and]
(4) ineffective assistance of counsel based on counsel's failure to challenge the indictments of sexual assault, class two felonies, instead of sexual assault of a spouse, class six felonies.

Answer (Doc. 18), Exh. “K” at 5.

         On January 15, 2015, the Rule 32 court addressed the two (2) arguments raised by counsel, but ignored those urged by Petitioner alone. Answer (Doc. 18), Ariz. Superior Court, Pima County, Case No. CR056376, Ruling 1/15/2015 (Exh. “N”). The Rule 32 court held that it was “not prepared to give the Petitioner the benefit of the Apprendi/Blakely line of cases when he absconded for almost a decade and a half preventing the Court from sentencing him, at all.”[3] Answer (Doc. 18), Exh. “N” at 2. Regarding Petitioner's ineffective assistance of counsel claim, the Rule 32 court found that counsel was not ineffective and neither was Petitioner prejudiced. Id., Exh. “N” at 2. The Rule 32 court pointed out that the “victim statements were very clear and the crime was terrible[, ] [and] [i]t stretches the imagination to think a jury would not find emotional harm to the victim, especially in light of the fact that the victim would state that the Petitioner continued to contact her and ‘gloat' over the years he was on absconder status.” Id., Exh. “N” at 2. As such, the Rule 32 court denied relief and dismissed the petition. Answer (Doc. 18), Exh. “N” at 2.

         On February 2, 2015, Petitioner filed his pro se Petition for Review in the Arizona Court of Appeals. See Answer (Doc. 18), Pet. for Review 2/2/2015 (Exh. “O”). Petitioner asserted the following issues for review: (1) whether his sentence “is in violation of the Constitutions of the United States and the State of Arizona and exceeded the maximum authorized by law”; (2) ineffective of counsel at sentencing “because trial counsel failed to recognize that any aggravation must be proved to a jury beyond a reasonable doubt”; (3) whether his term of probation expired prior to revocation nullifying the revocation; (4) violation of the Double Jeopardy clause, because he was sentenced subsequent to the expiration of probation; (5) ineffective assistance of counsel because his plea allegedly lacked a factual basis; and (6) ineffective assistance of counsel for a failure to challenge the indictment alleging sexual assault instead of sexual assault of a spouse. Answer (Doc. 18), Exh. “O” at 3.

         Petitioner asserted that he never waived having a jury consider aggravating factors for sentencing, and as such, his sentence “exceed[ed] the maximum sentenced [sic] authorized by the jury verdict alone” in violation of his Sixth Amendment rights. Id., Exh. “O” at 3-5. Petitioner further asserted that the trial court erred by not applying Apprendi in determining his sentence. Id., Exh. “O” at 5-10. Petitioner argued that this resulted in a sentence that “exceed[ed] the maximum authorized by law” and was therefore unconstitutional. Id., Exh. “O” at 10. Petitioner also asserted that his trial counsel was ineffective at sentencing, because “[c]ounsel must have been ignorant of the law when not detecting Petitioners [sic] right to a jury trial[.]” Id., Exh. “O” at 11.

         Petitioner also alleged a due process violation, arguing that the State of Arizona misapplied A.R.S. § 13-903, and should have relied on Arizona Criminal Procedure Rule 27.10. Answer (Doc. 18), Exh. “O” at 11-17. Petitioner asserted that “a term of probation has to be revoked during the probationary period, ” which he alleged that the State failed to do, thereby divesting the trial court of jurisdiction to revoke Petitioner's probation. Id., Exh. “O” at 13. Additionally, Petitioner asserted prosecutorial misconduct because “[t]he State went as far as to have a warrant issued for the original burglary charge and not the probation violation[.]” Id., Exh. “O” at 15. Petitioner alleged that this was done to ensure his extradition from Mexico. Id., Exh. “O” at 15. Petitioner further alleged a due process violation because he believes that the trial courts imposition of “a subsequent prison sentence after the term of probation expired, . . . violated the Double Jeopardy Clause of the Fifth Amendment.” Id., Exh. “O” at 19 (citations omitted).

         Finally, Petitioner claimed ineffective assistance of counsel during plea negotiations. Answer (Doc. 18), Exh. “O” at 19-20. Petitioner argued that counsel was ineffective due to an alleged failure to dispute the charge of sexual assault, arguing that Petitioner should have been charged with sexual assault of a spouse. Id., Exh. “O” at 19- 20. Moreover, Petitioner believed that he cannot have committed burglary, because he was a leaseholder on the property. Id., Exh. “O” at 19-20.

         On June 10, 2015, Petitioner filed a Motion for Speedy Disposition in the court of appeals. Answer (Doc. 18), Court of Appeals, State of Ariz., Case No. 2 CA-CR 2015-0047-PR, Pet.'s Motion for Speedy Disposition (Exh. “P”). The Arizona Court of Appeals granted Petitioner's Motion for Speedy Disposition on June 17, 2015. Answer (Doc. 18), Court of Appeals, State of Ariz., Case No. 2 CA-CR 2015-0047-PR, Order 6/17/2015 (Exh. “Q”) & Order 6/29/2015 (Exh. “R”).

         On July 14, 2015, the Arizona Court of Appeals granted review, but denied relief. Suppl. Answer (Doc. 29), Court of Appeals, State of Ariz., Case No. 2 CA-CR 2015-0047-PR, Mem. Decision 7/14/2015 (Exh. “S”). The appellate court indicated that “[a]lthough we disagree with the [Rule 32] court's reasoning, we nonetheless find that it reached the right result and also deny relief.” Id., Exh. “S” at 3 (citing State v. Oakley, 180 Ariz. 34, 36, 881 P.2d 366, 368) (Ct. App. 1994)). The appellate court went on to limit its discussion “to the two arguments counsel presented to the trial court in the Rule 32 petition below.” Id., Exh. “S” at 3-4. The appellate court “assume[d] without deciding that Blakely applie[d] to the sentence imposed upon Edgar's probation revocation in May 2014.” Id., Exh. “S” at 4 (citations omitted). The court observed, however, that “Edgar [had] failed to object based on Blakely at sentencing; . . . therefore forfeit[ing] his right to relief absent fundamental, prejudicial error.” Id., Exh. “S” at 4 (citations omitted). The Arizona Court of Appeals then “conclude[d] that no rational jury could have failed to find beyond a reasonable doubt that the victim suffered substantial emotional harm resulting from Edgar's actions during the 1997 burglary, and . . . thus conclude[d] Edgar ha[d] not demonstrated he was prejudiced by any error.” Suppl. Answer (Doc. 29), Exh. “S” at 6-7. Moreover, “because Edgar ha[d] not established fundamental, prejudicial error, [the appellate court] [could not] say the [Rule 32] court abused its discretion in denying relief on his related claim of ineffective assistance of counsel.” Id., Exh. “S” at 8. Petitioner did not seek review this decision by the Arizona Supreme Court. See Suppl. Answer (Doc. 29), Court of Appeals, State of Ariz., Case No. 2 CA-CR 2015-0047-PR, Mandate 9/4/2015 (Exh. “T”).

         C. The Instant Habeas Proceeding

         On February 10, 2015, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner claims five (5) grounds for relief. First, Petitioner alleges that his “term of probation expired on October 22, 2002[, ] [but] [t]he State did not revoke probation until May 13, 2014[, ] then sentenced Petitioner to a 7 (seven) year prison term on an . . . expired term of probation.” Petition (Doc. 1) at 4. Petitioner supports his contention by arguing that the monthly fees incurred match with the number of days his original probation term. Id. at 5. Petitioner also alleges that this delay in revocation violated his due process rights. Petition (Doc. 1) at 12-13; see also Suppl. Reply (Doc. 32) at 11-14. Second, Petitioner alleges that his “sentence is in violation of the Constitutions of the United States and The [sic] State of Arizona and exceeded the maximum authorized by law because the aggravating factors used to determine his sentence were not proven to a jury beyond a reasonable doubt.” Petition (Doc. 1) at 6. Petitioner further asserts that his plea agreement does not contain a waiver of his right to have a jury make findings regarding any aggravating factors, and that absconding “is only a technical violation” of his probation. Id. at 6, 15-16. Petitioner argues that Apprendi and Blakely require that any fact that increases the defendant's sentence beyond the statutory maximum must be proven to a jury and found beyond a reasonable doubt, which Petitioner further asserts did not occur during his revocation hearing. Suppl. Reply (Doc. 32) at 5-9. Third, Petitioner alleges ineffective assistance of counsel at sentencing, because “[c]ounsel . . . failed to recognize Petitioners [sic] right that any aggravation must be proved to a jury beyond a reasonable doubt.” Petition (Doc. 1) at 7, 17. Petitioner also alleges that counsel was ineffective for “fail[ing] to detect . . . Petitioners [sic] probationary term expired in 2002[.]” Suppl. Reply (Doc. 32) at 10. Fourth, Petitioner alleges ineffective assistance of trial counsel “based on a lack of a factual bases [sic] for the crime Petitioner plead to.” Petition (Doc. 1) at 8. Petitioner argues that he “was a leaseholder of the home to which was [sic] alleged to have been burglarized” and he was married to the victim. Id. Petitioner also faults counsel for “fail[ing] to offer evidence or file timely motion for a review of the indictment.” Id. Petitioner asserts that he should have been charged with sexual assault between spouses pursuant to A.R.S. §13-1406.01, rather than the sexual assault to which he pleaded guilty. Id. at 17-18. Fifth, Petitioner asserts that counsel was ineffective during plea negotiations. Petition (Doc. 1) at 8-9. Petitioner reiterates his complaints that counsel did not challenge the indictment regarding the sexual assault charge, nor did counsel file any motions. Id. at 9.

         On July 20, 2015, Respondents filed their Limited Answer (Doc. 18), asserting that Petitioner had only advanced unexhausted claims in his federal habeas petition. On July 21, 2015, Petitioner filed a Reply (Doc. 21). On January 22, 2016, Respondents filed a Supplemental Answer (Doc. 29) in light of the Arizona Court of Appeals decision completing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.