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Warner v. Ryan

United States District Court, D. Arizona

May 1, 2019

Joshua Matthew Warner, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          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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