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Ryan v. Ryan

United States District Court, D. Arizona

May 21, 2018

Jerry E. Ryan, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle, United States Magistrate Judge.

         Petitioner Jerry Ryan 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 pleaded guilty to attempted theft of a means of transportation and was sentenced to a stipulated 10-year term of imprisonment. Petitioner alleges he received ineffective assistance of trial, sentencing, and PCR counsel. The Court concludes that Petitioner fails to establish that the state court's rejection of his Strickland claims in Ground One was objectively unreasonable. Petitioner's claim in Ground Two is procedurally defaulted and meritless. The Court will recommend the Petition be denied and dismissed with prejudice.

         II. BACKGROUND.

         A. Plea and Sentencing.

         On October 12, 2012, Petitioner pleaded guilty to one count of attempted theft of a means of transportation with two historical prior felony convictions. (Doc 13-1, Ex. F, at 30.) Petitioner stipulated that a presumptive, 10-year term of imprisonment would run concurrently with prison sentences from four other convictions from Pima and Yavapai Counties. (Id.) On December 4, 2012, the trial court sentenced Petitioner. (Doc. 13-1, Ex. I, at 57.)

         B. Post-Conviction Relief Proceedings.

         On December 24, 2012, Petitioner filed his first Notice of Post-Conviction Relief (PCR). (Doc. 13-1, Ex. J, at 65.) Petitioner was appointed counsel, but counsel concluded there were no issues to present for PCR relief. (Doc. 13-1, Ex. K, at 69.) On August 14, 2013, Petitioner filed a pro-per petition for PCR relief. (Doc. 13-1, Ex. O at 80.) On January 6, 2014, the trial court dismissed his PCR petition with prejudice after finding that he failed to establish a colorable claim. (Doc. 13, Ex. R, at 123.)

         On February 27, 2014, Petitioner filed a second notice of PCR claiming that his PCR counsel was ineffective because he did not investigate the IAC claims against his trial counsel. (Doc. 13-1, Ex. V, at 146.) On May 13, 2014, Petitioner filed a petition for review with the Arizona Court of Appeals based on the trial court's January 6, 2014 order denying his first PCR petition, which claimed his trial counsel and sentencing counsel were ineffective. (Doc. 13-2, Ex. AA, at 27.)

         On June 4, 2013, the trial court found the second notice of PCR both untimely and successive under Rule 32.4(a). (Doc. 13-1, Ex. W, at 154.) On December 29, 2016, the Arizona Court of Appeals granted review but denied relief. (Doc. 13-2, Ex. CC, at 45.)

         C. Petitioner's Habeas Petition.

         On August 4, 2017, the Petitioner timely filed for Writ of Habeas Corpus. (Doc. 1.) Petitioner raises two grounds for relief: (1) ineffective assistance of trial and sentencing counsel; and (2) ineffective assistance of PCR counsel. ...


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