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Jackson v. Ryan

United States District Court, D. Arizona

October 3, 2019

Jerry Ramon Jackson, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Pending before the court is a petition for writ of habeas corpus constructively filed on January 17, 2017, by Jerry Ramon Jackson. (Doc. 1) Jackson is currently incarcerated in the Arizona State Prison Complex in Eloy, Arizona. Id.

         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. Trial counsel was not ineffective; Jackson did not receive an unconstitutional sentence. His remaining claims are procedurally defaulted.

         Summary of the Case

         Jackson was convicted after a jury trial of “armed robbery, attempted armed robbery, and three counts of aggravated assault.” (Doc. 12, p. 5) The trial court sentenced Jackson to an aggregate term of imprisonment totaling eighteen years. (Doc. 13, p. 91)

         At trial, the government introduced evidence that M.Z. bought a smart phone from a man he met through an internet listing. (Doc. 37, p. 32) He found that the phone did not work and arranged to meet the seller again. Id. At that second meeting, the seller robbed him at gunpoint. Id. M.Z. gave police “the contact information he used to arrange the meetings as well as a physical description of his assailant.” Id.

         Approximately one week later, “D.W. responded to an online posting and met Jackson to purchase an electronic tablet when Jackson pulled out a gun . . . and shot the second victim in the neck.” (Doc. 37, p. 32) “One of the telephone numbers D.W. had used to contact Jackson matched a contact phone number M.Z. had provided to law enforcement.” Id.

         Police eventually located Jackson who “confessed his involvement with the attempted robbery and shooting of D.W., but denied robbing M.Z.” (Doc. 37, p. 32) At trial, he admitted that he sold M.Z. a cell phone and that M.Z. later told him the phone was broken, but he denied meeting M.Z. again or robbing him. Id.

         Before the trial, M.Z. moved out of state, so he was deposed in September of 2012. (Doc. 12, p. 5) Jackson's attorney was present, but he chose not to cross-examine M.Z. Id. Jackson was not present himself, but his counsel waived his presence. Id. At trial, counsel stipulated to the admission of that deposition. Id.

         On direct appeal, Jackson argued that the trial court erred “in denying Jackson's motion for acquittal pursuant to Ariz.R.Crim.P. 20, ” erred “in admitting the videotaped deposition testimony of the witness M.Z., ” and erred “in considering unconstitutional aggravating factors when it sentenced Jackson.” (Doc. 12, pp. 41, 46-51) The Arizona Court of Appeals affirmed his convictions and sentences on June 25, 2014. (Doc. 12, pp. 3-9) It does not appear that Jackson petitioned the Arizona Supreme Court for review. (Doc. 11, p. 3)

         On July 22, 2014, Jackson filed a notice of post-conviction relief (PCR). (Doc. 12-9, p. 2) Counsel subsequently filed notice that he was unable to find any colorable claims. (Doc. 12-12, p. 2) Jackson then filed a petition pro se arguing trial counsel was ineffective “for (1) waiving Petitioner's presence at a video deposition without Petitioner's consent, (2) failing to cross-examine the victim at the deposition, (3) failing to give an opening statement at trial, (4) failing to move to sever counts for the two separate victims, (5) moving to dismiss all counts in a Rule 20 motion [rather than focusing on counts 1 and 2], and (6) failing to prepare Petitioner prior to taking the witness stand.” (Doc. 13, pp. 92, 95) The PCR court denied the petition on the merits on January 12, 2016. (Doc. 13, pp. 91-96) The PCR court denied Jackson's motion for reconsideration on February 4, 2016. (Doc. 13-6, p. 2) Jackson did not file a timely petition for review with the Arizona Court of Appeals.

         On January 17, 2017, Jackson constructively filed the pending petition for writ of habeas corpus. (Doc. 1) He claims (1) trial counsel was ineffective for failing to cross-examine the victim at the deposition, (2) trial counsel was ineffective for waiving his presence at the deposition, (3) trial counsel was ineffective for failing to object to the admission of the deposition at trial, (4) the evidence was insufficient to support counts 1 and 2, and (5) the trial court improperly considered unconstitutional sentencing factors in violation of the Eighth Amendment and “double jeopardy.” (Doc. 1, pp. 1-11); (Doc. 1-2, p. 20)

         The respondents filed an answer on May 22, 2017, in which they argued that Jackson's claims are procedurally defaulted. (Doc. 11) On July 10, 2017, Jackson filed a motion to stay the action to permit him to properly exhaust his claims. (Doc. 16) This court granted the motion on August 7, 2017. (Doc. 22)

         In his belated petition for review with the Arizona Court of Appeals, Jackson presented three claims of ineffective assistance of counsel: (1) trial counsel was ineffective for failing to cross-examine the victim at the deposition, (2) trial counsel was ineffective for waiving his presence at the deposition, (3) trial counsel was ineffective for failing to object to the admission of the deposition at trial. (Doc. 37, pp. 5-21) The Arizona Court of Appeals denied claims (1) and (2) on the merits. (Doc. 37, pp. 30- 40) The court refused to address Jackson's third claim on the merits because it had not been raised in the PCR petition below citing Ariz.R.Crim.P. 32.9(c)(4)(B)(ii). (Doc. 37, p. 31, n.1) Jackson did not file a petition for review with the Arizona Supreme Court.

         Jackson filed in this court a motion to lift the stay on June 19, 2019, which the court granted on July 9, 2019. (Doc. 33); (Doc. 35) The respondents filed a supplemental answer on August 19, 2019. (Doc. 36) Jackson filed a reply on September 23, 2019. (Doc. 40)

         Standard of Review

         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 ...

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