Gary v. Ryan

          HONORABLE DOMINIC W. LANZA JUDGE

          REPORT AND RECOMMENDATION

          CAMILLE D. BIBLES UNITED SLATES MAGISTRATE JUDGE.

         Petitioner 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).

         I Background

         On 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).^[1] 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).^[2]

         At a 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 guilty pleas:

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. [Croom].

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).^[3] 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 being released.

(ECF No. 8 at 40).

         On 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 67).^[4] Gary did not seek post-conviction relief challenging his convictions or sentences in CR2011-103400 or CR2011-005966.

         Gary 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 as follows:

In January of 2013, Gary's probation officer filed a petition to revoke his probation . . .^[5] 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.^[6] 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 imprisonment.^[7]

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 counts.”^[8]

State v. Gary, 2017 WL 2333584, at *1-3 (Ariz.Ct.App. 2017).

         With 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. . . .^[9]

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).

         On 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 ...