Harmon v. Ryan

          REPORT AND RECOMMENDATION

          Leslie A. Bowman United States Magistrate Judge

         Pending 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)

         Pursuant 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).

         The 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.

         Summary of the Case

         On 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)

         Harmon 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)

         Harmon 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)

         On 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)

         On 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. 9-10)

         Harmon did not file a timely reply.

         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, the writ will not be granted unless prior adjudication of the claim -

(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; or

(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 ...