United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. BOWMAN UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
of the Case
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)
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.
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.”
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.
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.
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)
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.
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,
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.
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
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)
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
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the ...