Wade v. Ryan et al

Filing 21

ORDER denying the petition for writ of habeas corpus 1 . ORDER denying a certificate of appealability and leave to proceed in forma pauperis on appeal. Signed by Judge Frederick J Martone on 8/24/12. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Earl Wade, 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-11-1985-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. 15). We

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also have before us the report and recommendation of the United States Magistrate Judge

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(doc. 16), recommending that the petition be denied, and petitioner’s objections (doc. 20).

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Petitioner was found guilty by a jury of one count of forgery in connection with his

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attempt to cash a stolen check. He was sentenced as a repetitive offender to a mitigated 8.5

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year prison term.

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On October 24, 2011, petitioner filed a timely petition for writ of habeas corpus

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raising four grounds for relief. In Ground I, he argues that the trial court erred in vacating

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the preliminary hearing, that he was “improperly advised during the process of criminal

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procedure,” he was innocent but was “continually offered pleas,” “an adequate investigation

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was never done,” “no witnesses [were] obtained in [his] favor,” and there were “altered

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transcripts.” In Ground II, petitioner asserts a claim of prosecutorial misconduct based on

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the prosecutor’s failure to investigate his guilt and failure to disclose potentially exculpatory

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evidence. In Ground III, petitioner contends that trial counsel was ineffective for failing to

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(1) obtain evidence in petitioner’s favor, (2) challenge a witness’s perjured testimony, (3)

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object to evidence regarding the car burglary during which the check was stolen, and (4)

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conduct his own investigation. In Ground IV, petitioner asserts a claim of “withholding

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information.”

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The Magistrate Judge concluded that the claims asserted in Grounds I, II and IV are

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either procedurally defaulted, or are state law claims that are not cognizable on federal

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habeas review. The Magistrate Judge also concluded that the ineffective assistance claims

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asserted in Ground III are properly before the court, but fail on the merits.

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In his objections to the report and recommendation, petitioner challenges the

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Magistrate Judge’s conclusion only with respect to the ineffective assistance of counsel

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claim. He argues that counsel was ineffective for failing to call witnesses on his behalf,

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failing to conduct his own investigation, and failing to object to the evidence of the burglary

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during which the check was stolen.

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Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a petitioner

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must show both that counsel’s performance was objectively deficient and that counsel’s

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deficient performance prejudiced the outcome of the proceeding. Id. at 687, 104 S. Ct. at

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2064. To be deficient, counsel’s performance must fall “outside the wide range of

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professionally competent assistance.” Id. at 690, 104 S. Ct at 2066. To establish that he

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suffered prejudice, petitioner must demonstrate a “reasonable probability that, but for

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counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

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at 694, 104 S. Ct at 2068.

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After conducting a de novo review of the issues, we agree with the Magistrate Judge

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that petitioner has not shown either that counsel’s performance was deficient or, even if it

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was deficient, that he was prejudiced as a result. We also agree with the Magistrate Judge

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that petitioner’s remaining grounds for relief are either procedurally barred or not cognizable
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on federal habeas review.

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Accordingly, IT IS ORDERED DENYING the petition for writ of habeas corpus

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(doc. 1). Because petitioner has not made a substantial showing of the denial of a

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constitutional right and because the dismissal of the petition is justified by a plain procedural

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bar and jurists of reason would not find the procedural ruling debatable, IT IS FURTHER

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ORDERED DENYING a certificate of appealability and leave to proceed in forma pauperis

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on appeal.

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DATED this 24th day of August, 2012.

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