United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge
Petitioner
Joshua Matthew Warner (Petitioner), presently incarcerated at
the Arizona State Prison Complex - Kingman/Huachuca Unit in
Kingman, Arizona, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. Before this Court are the
Petition (Doc. 1) and Respondent's Limited Answer to
Petition for Writ of Habeas Corpus (Doc.8). Petitioner did
not file a reply. See Dkt. This matter was referred
to Magistrate Judge Ferraro for Report and Recommendation. As
more fully set forth below, the Magistrate Judge
recommends that the district court
dismiss the Petition.
Background
On
April 7, 2016, Petitioner pled guilty to one count of sexual
conduct with a minor and three counts of attempted sexual
conduct with a minor. (Doc. 9 at p. 3.) Petitioner agreed
that he would receive a sentence of 22 years “flat
time” for the sexual conduct with a minor conviction
and a deferred sentence of lifetime probation for the three
other convictions. Id. On May 12, 2016, Petitioner
was sentenced accordingly. Id. at p. 8.
Post-Conviction
Relief Proceedings
In
Arizona, a defendant who pleads guilty waives the right to
appeal his conviction directly and may seek review only by
collaterally attacking the conviction(s) through
post-conviction relief proceedings under Rule 32 of the
Arizona Rules of Criminal Procedure. See Ariz. R.
Crim. P. 17.2(e); Ariz. Rev. Stat. § 13-4033(B). On
August 9, 2016, Petitioner filed a notice of post-conviction
relief. (Doc. 9 at pp. 13-15.) Petitioner was appointed
counsel by the state trial court. Id. at p. 17.
Petitioner's appointed counsel was unable to find a
“tenable issue to submit” and requested that
Petitioner be permitted to file a pro se petition for
post-conviction relief. Id. at pp. 20-21.
On June
7, 2017, Petitioner filed his petition for post-conviction
relief in which he claimed his trial counsel rendered
ineffective assistance because trial counsel: (1) did not act
in his best interest; (2) failed to submit a mitigation
packet or request a mitigation specialist; (3) encouraged
Petitioner to waive his risk assessment and psychosexual
examination; and (4) waived Petitioner's presentence
interview. Id. at pp. 25-30. The state trial court
denied Petitioner's post-conviction relief petition on
September 25, 2017. Id. at pp. 32-34. Petitioner did
not seek review in the Arizona Court of Appeals. (Doc. 1 at
p. 5.)
On May
16, 2018, Petitioner signed and deposited the instant
Petition for mailing in the prison mailbox. Id. at
p. 1. Petitioner asserts the following grounds for relief:
GROUND ONE: Amendment VIII I believe that the State of
Arizona in the County of Maricopa, that they gave me a
sentence of 22 years in prison is an excessive amount of time
in violation of the 14th Amendment of the U.S.
Constitution[.]
GROUND TWO: Amendment XIV by giving me not just only 22 years
in prison but having three lifetime probation tails, thus
taking my life and liberty[.]
GROUND THREE: Universal Declaration of Human Rights Article
12 My honor and reputation were attacked because they used my
own family against me to make me say that I was guilty of
what I did.
GROUND FOUR: Amendment V “The State, given
Defendant's (Joshua Warner) admissions, had a strong case
against Defendant.”
(Doc. 1 at pp. 6-9.)
The
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