United States District Court, D. Arizona
HONORABLE DOMINIC W. LANZA JUDGE
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES UNITED SLATES MAGISTRATE JUDGE.
Jon Gary, proceeding pro se, filed a petition
seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254 on November 5, 2018. Gary was granted leave to proceed
in this matter in forma pauperis. (ECF No. 4).
Respondents docketed an answer to the petition for habeas
corpus relief on December 11, 2018 (ECF No. 8
“Answer”), and Gary docketed a Reply to the
Answer on January 22, 2018. (ECF No. 8).
January 26, 2011, in Maricopa County No. CR2011-103400, Gary
was charged by indictment with one count of child abuse as a
class 2 felony and a dangerous crime against a child (Count
1), and four counts of child abuse, a class 4 felony (Counts
2 through 5), all in violation of Arizona Revised Statutes
§ 13-3623. (ECF No. 8-1 at 2-4). All of the counts were
alleged to have occurred on the same date and against the
same victim, but each separate count asserted harm to a
different part of the victim's body. (Id.). On
September 7, 2011, Gary entered into a plea agreement in No.
CR2011-103400, agreeing to plead guilty to Count 1 of the
indictment as amended, a charge of attempted child abuse
classified as a class 3 felony and dangerous crime against a
child, and he also agreed to plead guilty to Count 2 of the
indictment. (ECF No. 8-1 at 9-11). The plea agreement noted the
presumptive sentence of ten years imprisonment and the
maximum sentence of 15 years imprisonment on Count 1. (ECF
No. 8-1 at 9). With regard to Count 2, the plea agreement
noted the presumptive sentence of 2.5 years imprisonment and
the maximum sentence of three years imprisonment.
(Id.). The plea agreement provided that, in return
for Gary's guilty plea, he would receive a mitigated
sentence of two years imprisonment on Count 2 and he would be
sentenced to a consecutive term of lifetime probation on
Count 1. (ECF No. 8-1 at 10-11). Additionally, in return for
Gary's guilty plea the State agreed to dismiss the other
counts of the indictment and dismiss the allegation of prior
felony convictions. (Id.). The written plea
agreement included Gary's sworn statement that he had
read and understood the plea agreement, he had discussed the
plea agreement and the rights he was waiving with his
counsel, and he understood the rights he was waiving by
pleading guilty, including his right to an appeal. (ECF No.
8-1 at 10). He also stated: “I understand that if I
violate any of the written conditions of my probation, my
probation may be terminated and I can be sentenced to any
term or terms stated above in paragraph one, without
limitation.” (ECF No. 8-1 at 10). That same date Gary
signed a written plea agreement in Maricopa County Superior
Court No. CR2011-05966. (ECF No. 8-1 at 12-14).
Change of Plea hearing conducted September 7, 2011, in both
CR2011-103400 and CR2011-05966, the trial court admonished
Gary with regard to the rights he was waiving by pleading
guilty. (ECF No. 8-1 at 17-22). At the hearing Gary stated he
understood the plea agreement in CR2011-103400 and he
understood the maximum and minimum sentences that could be
imposed for each count of conviction. (ECF No. 8-1 at 17-22,
25-27). Gary told the court no one had made any promises or
agreements to induce his guilty plea, he averred he had not
been threated or forced into pleading guilty, and he stated
he understood he was waiving his right to an appeal. (ECF No.
8-1 at 27-29). Gary agreed to the factual basis for his
On January 1, 2011, in Phoenix, Mr. Gary had a New Year's
Eve party at his house. At approximately four o'clock in
the morning, he walked into . . . one of his children's
bedrooms, and he saw one of the guests at the party . . . Mr.
[Croom] that's mentioned in paragraph two, having sex
with his eleven-year-old niece.
Mr. Gary lost control at that point and began attacking Mr.
While doing so, the child was right in the middle of it, and
the child suffered serious physical injury during the attack
. . .
(ECF No. 8-1 at 29-30). The presentence report provided
additional facts regarding this crime:
On January 1, 2011, [Gary] physically assaulted his eleven
year old niece after discovering a twenty-two year old male
friend of his in bed with her at his residence. . . . When
[Gary] discovered the two of them together he yelled at his
niece and told her to go to her room. A short time later,
[Gary] went into his niece's room and began punching,
kicking and stomping her until she reached the point of
unconsciousness. . . . The police were contacted after
neighbors reported hearing yelling and screaming coming from
the residence. When officers arrived on scene, they made
contact with [Gary's] niece and transported her to a
child help center so they could interview her. Upon being
interviewed, she informed officers of the events which had
taken place. She also received medical attention for multiple
physical injuries that she incurred. She began complaining of
having pain and it was determined that she would be
transported to a hospital for further testing. While she was
at the hospital, she was diagnosed with a lacerated liver, a
rib fracture, an adrenal bleed, a concussion and multiple
bruises on her body. Alcohol was also found in her system.
She spent six days in the Pediatric ICU unit before finally
(ECF No. 8 at 40).
January 25, 2012, Gary was sentenced to a term of 2 years
incarceration and given credit for 369 days of presentence
incarceration pursuant to his conviction on Count 2 in
CR2011-103400. (ECF 8-1 at 66). Imposition of sentence on
Count 1 was suspended and Gary was placed on lifetime
probation to commence upon his discharge from prison after
completing the sentence imposed on Count 2. (ECF No. 8-1 at
Gary did not seek post-conviction relief challenging his
convictions or sentences in CR2011-103400 or CR2011-005966.
was released from the Department of Corrections on July 23,
2012, after serving a total of 1.5 years of his two-year
sentence. (ECF No. 8-2 at 26). The Arizona Court of Appeals
summarized Gary's subsequent state criminal proceedings
In January of 2013, Gary's probation officer filed a
petition to revoke his probation . . . and the superior
court continued Gary on probation with intensive probation
terms and ordered Gary to be incarcerated for two months.
Then, in December 2013, Gary's probation officer filed a
second petition to revoke Gary's probation. Gary again
admitted to violating a condition of probation. The superior
court revoked Gary's probation grant [in CR2011-103400]
and committed Gary to a ten-year term of
At disposition [on May 8, 2014], Gary's probation
violation counsel alerted the superior court to what she
perceived to be a “serious error” in the trial
case. [She] was concerned that Gary should have received a
concurrent sentence, and that a probation tail may have been
illegal. The state argued that any deficiency in the original
plea agreement was best addressed through a petition for
post-conviction relief asserting a claim of ineffective
assistance of counsel. Gary filed a notice of post-conviction
relief and the superior court appointed counsel.
Post-conviction relief counsel filed a notice of completion
of post-conviction review finding no colorable claims and
requested a forty-five-day extension of time to allow Gary to
file a pro per petition for post-conviction relief. Gary
filed a pro-per petition for post-conviction relief claiming
he was eligible for relief because he was denied the
constitutional right to representation by a competent lawyer
. . ., that his right not to be placed twice in jeopardy for
the same offense was violated, and that newly discovered
material could require the court to vacate the conviction or
sentence [i.e., the statements of counsel during the
revocation hearing regarding a potential double jeopardy
issue because of the consecutive sentence of probation]. Gary
argued that A.R.S. § 13-116 was violated because he was
punished twice for “facts constituting a single act.
One act of assault resulted in two separate
State v. Gary, 2017 WL 2333584, at *1-3
regard to the claims stated in Gary's pro se state habeas
petition, the state trial court concluded:
. . . The Court previously found the defendant's conduct
constituted multiple, separate and distinct crimes to which
he had plead guilty, and for each case/crime, a separate
factual basis was recited and accepted at the time of the
change of plea. . . .
The Defendant's Petition and Reply present nothing which
approaches a finding of ineffective assistance of counsel. ln
fact, the Defendant largely argues his attorney was
ineffective for failing to argue the Defendant's double
jeopardy assertions. However, not only did the assigned
attorney make the argument, but the Defendant's attorney
during the change of plea proceedings also appeared during
the probation violation process and attempted to argue that
he didn't recall there being a separate factual basis for
each count and his recollection was the same factual basis
was given for each count, thereby arguing it was the same
conduct for both counts and the Defendant should not be
subject to consecutive sentences.
(ECF No. 8-2 at 38-39).
appeal from the trial court's denial of relief Gary
asserted the factual basis for his crimes of conviction, as
recited at the plea hearing, involved only a single act of
assault. (ECF No. 8-2). He asserted: “[he] was found
guilty of two counts and sentenced as if it was two separate
crimes. Mr. Gary received a prison term for one and a
probation term for the other and now ...