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King v. Ryan

United States District Court, D. Arizona

February 14, 2018

Bradley Jon King, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          HON. G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE

         Petitioner Bradley Jon King has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. Summary of Conclusion.

         Petitioner raises two grounds for relief in his timely Petition. Petitioner's claim in Ground One is procedurally defaulted because he did not raise this claim in the state courts. Ground Two is procedurally defaulted because the Arizona Court of Appeals applied a proper procedural bar when it denied relief. Petitioner offers no cause and prejudice to excuse his default. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         A. Facts of the Crimes.

         The Arizona Court of Appeals found:

Victim parked his van in a Fry's Electronics parking lot while he went into the store. The van had a bicycle rack “bolted in” and “permanently affixed” to the back with two bicycles secured to the rack with a heavy duty cable and locks. Victim covered the bikes with a barbecue cover secured with bungee cords to keep the bicycles clean and dry. A loss-prevention employee of Fry's [E]lectronics saw a red pickup truck leave a parking space, drive “by a van that had two racing bikes on it, ” and then park in another spot. He saw two men exit the truck, walk over to the van, take the bikes off the rack, and put them in the back of their truck and drive away.
When Police Officer Brian Sergeant arrived, a security officer pointed to the red truck and said, “That's the truck that was involved.” After Officer Sergeant pulled defendant over and placed him in investigative detention, defendant stated “the passenger of the truck had nothing to do with the stealing of the bicycles.” When Officer Sergeant asked him why he took the bicycles, defendant responded that he “wanted them.” Officer Sergeant found a “pair of bolt cutters and some cables” inside the truck. At the back of the van police officers found “cut locks” and a cable identical to that found in defendant's truck.

(Doc. 13, Ex. F, at 69.)

         B. Jury Trial and Sentencing.

         After a jury trial, Petitioner was convicted of Burglary, Theft, and Possession of Burglary Tools. (Id.) The court sentenced Petitioner to 11.25 years of imprisonment. (Id.)

         C. Direct Appeal.

         On October 31, 2013, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence for Theft. (Id.) The court reversed the Burglary and Possession of Burglary Tools convictions because the prosecution failed to establish Petitioner entered or remained in ...


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