Bragna v. Ryan et al

Filing 19

ORDER ACCEPTING the recommended decision of the Magistrate Judge (doc. 13 ) and DENYING AND DISMISSING with prejudice the petition for writ of habeas corpus (doc. 1). IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed in forma pauperis because the dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge Frederick J Martone on 5/21/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Joseph Bragna, Jr.,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV-11-0552-PHX-FJM
ORDER

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The court has before it petitioner’s petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 (doc. 1), respondents’ response (doc. 10), and petitioner’s reply (doc. 12). We

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also have before us the Report and Recommendation of the United States Magistrate Judge

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recommending that the petition be denied and dismissed with prejudice (doc. 13), petitioner’s

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objections (doc. 16), respondents’ response (doc. 17), and petitioner’s reply (doc. 18).

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On October 7, 2003, petitioner was indicted on four counts of sexual conduct with a

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minor fourteen years of age or over, all class 3 felonies (“CR2003"). On March 3, 2004

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petitioner was indicted on one count of sexual conduct with a minor under the age of fifteen,

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a class 2 felony, and one count of sexual abuse of a minor under the age of fifteen, a class 3

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felony (“CR2004"). On April 27, 2004, petitioner pled guilty in CR2003 to one count of

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sexual conduct with a minor, a class 6 undesignated felony, and in CR2004 to attempted

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sexual conduct with a minor, a class 3 felony and a dangerous crime against children in the

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second degree (“Count 1"), and attempted sexual abuse, a class 4 felony (“Count 2").

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In CR2003, the trial court placed petitioner on lifetime probation. In CR2004, the trial

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court imposed an aggravated 15-year term of imprisonment for Count 1, and lifetime

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probation for Count 2. Between May 2005 and May 2008, petitioner filed four petitions for

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post-conviction relief in state court.

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Petitioner now raises three ground for habeas relief arising out of his guilty pleas. In

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Ground 1, he argues that the trial court violated his right to due process by sentencing him

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under A.R.S. § 13-604.01, because the statute was not mentioned in the plea agreement, and

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was not codified into law until after he was indicted. We first conclude that petitioner’s

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claims related to CR2003 are barred by the Antiterrorism and Effective Death Penalty Act’s

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one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The statute of limitations with

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respect to CR2003 expired on August 26, 2005. The habeas petition was not filed until

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March 24, 2011. Therefore, petitioner’s claims related to CR2003 are barred.

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In addition, both claims presented in Ground 1 are procedurally barred for failure to

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exhaust state remedies because petitioner did not “fairly present” the constitutional due

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process claims in state court.

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constitutional analysis is insufficient to fairly present a claim in state court. Duncan v.

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Henry, 513 U.S. 364, 366 (1995). We agree with the Magistrate Judge that even assuming

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that the CR2003 claim was timely, it is now moot because the state court resentenced

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petitioner from lifetime probation to a period of probation no greater than three years.

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Petitioner’s claim that A.R.S. § 13-604.01 was not in effect at the time of his indictments is

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undermined by his acknowledgment in his second petition that it “was in [e]ffect at the time

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of the offense.” (Doc. 10, ex. Z).

Petitioner’s use of the term “due process” without

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In Ground 2, petitioner argues that he received constitutionally ineffective assistance

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of counsel for trial counsel’s failure to: (1) object to the presentation of perjured testimony

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to the grand jury, (2) discuss the presentence report with him, (3) argue the illegality of his

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sentence during sentencing, (4) object to specific improper actions taken by the State

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“calculated to produce a wrongful conviction” and sentence, and (5) object to the delayed
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initial appearance. We agree with the Magistrate Judge that petitioner did not present these

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particular claims of ineffective assistance in state court, and therefore he has failed to exhaust

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these claims. Ineffective assistance claims “are not fungible.” Hemmerle v. Schriro, 495

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F.3d 1069, 1075 (9th Cir. 2007). Petitioner’s presentation of an ineffective assistance claim

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on one theory did not fairly present the other claims now presented. Moormann v. Schriro,

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426 F.3d 1044, 1056 (9th Cir. 2005). Consequently, all claims presented in Ground 2 are

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procedurally defaulted.

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Petitioner’s argument that Martinez v. Ryan, 132 S. Ct. 1309 (2012), serves to excuse

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his default is unavailing. The Court in Martinez held that where a claim for ineffective

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assistance of trial counsel cannot be raised on direct appeal, but must be presented in the first

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instance in an initial-review collateral proceeding, “[i]nadequate assistance of counsel at

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initial-review collateral proceedings may establish cause for a prisoner’s procedural default

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of a claim of ineffective assistance at trial.” Id. at 1315. The Court reasoned that, in these

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circumstances, “the collateral proceeding is in many ways the equivalent of a prisoner’s

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direct appeal as to the ineffective-assistance claim.” Id. at 1317.

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Arizona law does not allow a claim for ineffective assistance of counsel to be raised

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on direct appeal. Id. at 1314. Instead, the claim must be raised in an initial-review collateral

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proceeding. Here, however, petitioner filed three successive petitions for post-conviction

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relief after the initial-review collateral proceeding, but he did not take the opportunity to

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present the state court with the ineffective assistance claims now asserted in Ground 2.

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Martinez presented his ineffective assistance of trial counsel claim to the state court in his

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second petition for post-conviction relief, but was barred for his counsel’s failure to raise it

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in the first petition for post-conviction relief. Here, however, petitioner has failed to present

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his ineffective assistance of trial counsel claim to the state court at all. The narrow Martinez

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exception to Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546 (1991), would have

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applied here had petitioner presented the ineffective assistance of trial counsel claim to the

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state court in his second petition and had it denied for failure to raise it in his first petition.

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But not having presented it to the state court at all, he has failed to exhaust and the claim is
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procedurally defaulted. Martinez does not save the claim because it applies only to

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ineffective assistance of counsel at the first state petition for post-conviction relief, not

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petitions 2, 3, and 4. Petitioner’s failure to raise the claim in his successive state petitions

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does not qualify as cause to excuse procedural default under Coleman.

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In Ground 3, petitioner contends that his 15-year sentence imposed for a first offense

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violated his Eighth Amendment rights. Although he complained about his 15-year sentence

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in state court, he never argued that the aggravated sentence violated his Eighth Amendment

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rights. Thus, the federal claim has not been fairly presented and is procedurally barred.

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We agree with the Magistrate Judge that petitioner has not demonstrated either cause
or prejudice to excuse the procedural default.

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IT IS ORDERED ACCEPTING the recommended decision of the Magistrate Judge

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(doc. 13) and DENYING AND DISMISSING with prejudice the petition for writ of habeas

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corpus (doc. 1).

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IT IS FURTHER ORDERED denying a certificate of appealability and leave to

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proceed in forma pauperis because the dismissal of the petition is justified by a plain

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procedural bar and jurists of reason would not find the procedural ruling debatable.

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DATED this 21st day of May, 2012.

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