United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. Bowman United States Magistrate Judge
before the court is a petition for writ of habeas corpus
filed in this court on April 23, 2018, by Jeffrey Wayne
Harmon, who challenges a judgment entered by the Maricopa
County Superior Court. (Doc. 1) When he filed his petition,
Harmon was incarcerated in the Arizona State Prison Complex
in Buckeye, Arizona. (Doc. 1, p. 1) It appears that he is now
serving a term of supervised probation. (Doc. 14, p. 1)
to the Rules of Practice of this court, the matter was
referred to Magistrate Judge Bowman for report and
recommendation. LRCiv 72.2(a)(2).
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order denying
the petition. Claims alleging pre-plea constitutional
violations are waived. Counsel did not “strong
arm” Harmon into pleading guilty.
of the Case
March 14, 2013, Harmon entered a plea of guilty to two counts
of aggravated assault. (Doc. 15, p. 4) On April 15, 2013,
Harmon was sentenced to a 7.5-year term of imprisonment to be
followed by a 4-year term of probation. (Doc. 15)
filed notice of post-conviction relief on July 3, 2013. (Doc.
14) Appointed counsel was unable to find any meritorious
issues, so Harmon was allowed to submit a petition pro se.
(Doc. 15, pp. 23-28) He filed his petition on March 17, 2014.
(Doc. 16, pp. 3-14) The trial court denied the petition on
August 1, 2014. (Doc. 16, pp. 29-31) The court explained that
by pleading guilty, Harmon waived his right to
“challenge evidence, assert defenses, confront and
cross-examine witnesses, to challenge probable cause and to
appeal his conviction.” (Doc. 16, p. 30) Harmon's
claim that he was “strong armed” into changing
his plea was meritless because “[d]uring his change of
plea he was asked if there was force or any threats used to
get him to plead guilty and he answered in the
negative.” (Doc. 16, p. 30)
filed a petition for review in which he argued, among other
things, that (1) the state overcharged the case to induce his
guilty plea and (2) counsel was ineffective because she
failed to challenge the indictments by using a medical expert
to dispute the extent of the victim's injuries and
“threatened to put the defendant in Rule 11 court for
simply asking her to follow his instructions.” (Doc.
16-7, pp. 5-6) The Arizona Court of Appeals granted review
but denied relief on January 5, 2017. (Doc. 16, p. 69) The
court held, among other things, that Harmon's ineffective
assistance claims were waived because they did not relate to
the entry of his guilty pleas. (Doc. 16, p. 71)
April 23, 2018, Harmon filed in this court a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1) He claims (1) he was coerced into pleading guilty
because the prosecution lied to the grand jury to overcharge
the offenses, (2) counsel was ineffective because she failed
to challenge the indictment, “threatened to put me in
Rule 11 court, ” and “told me that I had to sign
[the plea agreement] and that my family needed me to sign
it.” (Doc. 1, pp. 6-7)
November 2, 2018, the respondents filed an answer. (Doc. 14)
They argue Claim (1) is waived by Harmon's plea of
guilty, and Claim (2) should be denied because his complaints
are waived or too vague to qualify for relief. (Doc. 14, pp.
did not file a timely reply.
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, the
writ will not be granted unless prior adjudication of the
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The petitioner must shoulder an
additional burden if the state court ...