Harmon v. Ryan et al
Filing
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REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Court enter an order Denying the 1 Petition for Writ of Habeas Corpus. Harmon's claim that the state overcharged his crimes is waived by his plea of guilty. Counsel d id not "strong arm" Harmon into accepting the plea agreement. Any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. Local Rules permit a response to an objection. They do not permit a reply to a response without the permission of the District Court. Signed by Magistrate Judge Leslie A Bowman on 1/28/19. (BAC)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jeffrey Wayne Harmon,
Petitioner,
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vs.
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Charles Ryan; et al.,
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Respondents.
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CV 18-01252-PHX-RM (LAB)
REPORT AND RECOMMENDATION
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Pending before the court is a petition for writ of habeas corpus filed in this court on April
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23, 2018, by Jeffrey Wayne Harmon, who challenges a judgment entered by the Maricopa
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County Superior Court. (Doc. 1) When he filed his petition, Harmon was incarcerated in the
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Arizona State Prison Complex in Buckeye, Arizona. (Doc. 1, p. 1) It appears that he is now
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serving a term of supervised probation. (Doc. 14, p. 1)
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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).
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The Magistrate Judge recommends that the District Court, after its independent review
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of the record, enter an order denying the petition. Claims alleging pre-plea constitutional
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violations are waived. Counsel did not “strong arm” Harmon into pleading guilty.
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Summary of the Case
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On March 14, 2013, Harmon entered a plea of guilty to two counts of aggravated assault.
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(Doc. 15, p. 4) On April 15, 2013, Harmon was sentenced to a 7.5-year term of imprisonment
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to be followed by a 4-year term of probation. (Doc. 15)
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Harmon filed notice of post-conviction relief on July 3, 2013. (Doc. 14) Appointed
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counsel was unable to find any meritorious issues, so Harmon was allowed to submit a petition
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pro se. (Doc. 15, pp. 23-28) He filed his petition on March 17, 2014. (Doc. 16, pp. 3-14) The
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trial court denied the petition on August 1, 2014. (Doc. 16, pp. 29-31) The court explained that
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by pleading guilty, Harmon waived his right to “challenge evidence, assert defenses, confront
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and cross-examine witnesses, to challenge probable cause and to appeal his conviction.” (Doc.
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16, p. 30) Harmon’s claim that he was “strong armed” into changing his plea was meritless
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because “[d]uring his change of plea he was asked if there was force or any threats used to get
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him to plead guilty and he answered in the negative.” (Doc. 16, p. 30)
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Harmon filed a petition for review in which he argued, among other things, that (1) the
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state overcharged the case to induce his guilty plea and (2) counsel was ineffective because she
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failed to challenge the indictments by using a medical expert to dispute the extent of the
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victim’s injuries and “threatened to put the defendant in Rule 11 court for simply asking her to
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follow his instructions.” (Doc. 16-7, pp. 5-6) The Arizona Court of Appeals granted review
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but denied relief on January 5, 2017. (Doc. 16, p. 69) The court held, among other things, that
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Harmon’s ineffective assistance claims were waived because they did not relate to the entry of
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his guilty pleas. (Doc. 16, p. 71)
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On April 23, 2018, Harmon filed in this court a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) he was coerced into pleading guilty
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because the prosecution lied to the grand jury to overcharge the offenses, (2) counsel was
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ineffective because she failed to challenge the indictment, “threatened to put me in Rule 11
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court,” and “told me that I had to sign [the plea agreement] and that my family needed me to
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sign it.” (Doc. 1, pp. 6-7)
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On November 2, 2018, the respondents filed an answer. (Doc. 14) They argue Claim
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(1) is waived by Harmon’s plea of guilty, and Claim (2) should be denied because his
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complaints are waived or too vague to qualify for relief. (Doc. 14, pp. 9-10)
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Harmon did not file a timely reply.
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Discussion
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The writ of habeas corpus affords relief to persons in custody in violation of the
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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is
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in custody pursuant to the judgment of a state court, the writ will not be granted unless prior
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adjudication of the claim –
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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
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28 U.S.C. § 2254(d). The petitioner must shoulder an additional burden if the state court made
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findings of fact.
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In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.
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28 U.S.C.A. § 2254 (e)(1).
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“[The] standard is intentionally difficult to meet.” Woods v. Donald, 135 S.Ct. 1372,
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1376 (2015). “‘[C]learly established Federal law’ for purposes of § 2254(d)(1) includes only
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the holdings, as opposed to the dicta, of th[e] [Supreme] Court’s decisions.” Id.
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A decision is “contrary to” Supreme Court precedent if that Court already confronted
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“the specific question presented in this case” and reached a different result. Woods, 135 S.Ct.
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at 1377.
A decision is an “unreasonable application of” Supreme Court precedent if it is
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“objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. at 1376.
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“To satisfy this high bar, a habeas petitioner is required to show that the state court’s ruling on
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the claim being presented in federal court was so lacking in justification that there was an error
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well understood and comprehended in existing law beyond any possibility for fairminded
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disagreement.” Id. (punctuation modified)
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If the highest state court fails to explain its decision, this court looks to the last reasoned
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state court decision. See Brown v. Palmateer, 379 F.3d 1089, 1092 (9th Cir. 2004).
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Federal habeas review is limited to those claims for which the petitioner has already
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sought redress in the state courts. This so-called “exhaustion rule” reads in pertinent part as
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follows:
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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that – (A) the applicant has exhausted the remedies available in the courts of the
State. . . .
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28 U.S.C. § 2254(b)(1)(A).
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To be properly exhausted, a claim must be “fairly presented” to the state courts. Weaver
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v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). In other words, the state courts must be
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apprised of the issue and given the first opportunity to rule on the merits. Id. “The state courts
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have been given a sufficient opportunity to hear an issue when the petitioner has presented the
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state court with the issue’s factual and legal basis.” Id.
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In addition, the petitioner must explicitly alert the state court that he is raising a federal
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constitutional claim. Casey v. Moore, 386 F.3d 896, 910-11 (9th Cir. 2004), cert. denied, 545
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U.S. 1146 (2005). The petitioner must make the federal basis of the claim explicit either by
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citing specific provisions of federal law or federal case law, even if the federal basis of a claim
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is “self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528 U.S.
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1087 (2000), or by citing state cases that explicitly analyze the same federal constitutional
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claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
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If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona,
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he must present his claims to the Arizona Court of Appeals for review. Castillo v. McFadden,
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399 F.3d 993, 998 (9th Cir. 2005), cert. denied, 546 U.S. 818 (2005); Swoopes v. Sublett, 196
F.3d 1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If state remedies have not been
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properly exhausted, the petition may not be granted and ordinarily should be dismissed without
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prejudice. See Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court
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has the authority to deny on the merits rather than dismiss for failure to properly exhaust. 28
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U.S.C. § 2254(b)(2).
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A claim is “procedurally defaulted” if the state court declined to address the claim on the
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merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002).
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Procedural default also occurs if the claim was not presented to the state court and it is clear the
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state would raise a procedural bar if it were presented now. Id.
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Procedural default may be excused if the petitioner can “demonstrate cause for the
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default and actual prejudice as a result of the alleged violation of federal law, or demonstrate
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that failure to consider the claims will result in a fundamental miscarriage of justice.” Boyd v.
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Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). “To qualify for the fundamental miscarriage
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of justice exception to the procedural default rule, however, [the petitioner] must show that a
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constitutional violation has probably resulted in the conviction when he was actually innocent
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of the offense.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008).
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If a claim is procedurally defaulted and is not excused, the claim should be dismissed
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with prejudice because the claim was not properly exhausted and “the petitioner has no further
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recourse in state court.” Franklin, 290 F.3d at 1231.
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Discussion: Claim (1), Grand Jury
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Harmon claims that the state lied to the grand jury about the extent of the victims’
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injuries in order to overcharge the offenses. This, he argues, coerced him into pleading guilty.
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The respondents argue this claim is waived by Harmon’s plea of guilty. (Doc. 14, pp. 9-10)
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They are correct.
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“[A] guilty plea represents a break in the chain of events which has preceded it in the
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criminal process.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608 (1973).
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“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the
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offense with which he is charged, he may not thereafter raise independent claims relating to the
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deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id. He
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may, however, challenge the voluntary and intelligent nature of the plea itself. Id.
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Here, Harmon argues that the state lied to the grand jury and overcharged his offenses.
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This alleged deprivation of Harmon’s constitutional rights occurred before Harmon’s guilty plea
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and is now waived. The Arizona Court of Appeals analyzed this claim and came to the same
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conclusion. (Doc. 16, pp. 69-71)
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Harmon asserts that this deprivation “coerced” his plea. He implicitly argues that this
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claim is not waived because the overcharging affected the voluntary and intelligent nature of
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his plea. It did not. Overcharging, assuming it occurred here, raises the penalty for losing at
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trial. And a defendant is not improperly coerced when he pleads guilty to avoid “a higher
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penalty authorized by law for the crime charged.” Brady v. United States, 397 U.S. 742, 751,
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90 S. Ct. 1463, 1470 (1970).
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The prior adjudication of this claim by the Arizona Court of Appeals did not “result[] in
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a decision that was contrary to, or involve[] an unreasonable application of, clearly established
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Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
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Neither did it “result[] in a decision that was based on an unreasonable determination of the
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facts in light of the evidence” available to the trial judge. 28 U.S.C. § 2254(d); see, e.g.,
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Garrett v. Brewer, 2018 WL 1509187, at *4 (E.D. Mich. 2018) (“Petitioner’s claim that she
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was overcharged was also waived by her no-contest plea.”).
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Claim (2), Ineffective Assistance of Counsel
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Harmon claims counsel was ineffective because she failed to challenge the indictment,
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“threatened to put me in Rule 11 court,” and “told me that I had to sign [the plea agreement] and
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that my family needed me to sign it.” (Doc. 1, pp. 6-7)
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To succeed on an ineffective assistance claim, the habeas petitioner must prove “his
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counsel’s performance was deficient in violation of the Sixth and Fourteenth Amendments” and
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“he was prejudiced by counsel’s deficient performance.” Clark v. Arnold, 769 F.3d 711, 725
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(9th Cir. 2014).
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“Counsel is constitutionally deficient if the representation fell below an objective
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standard of reasonableness such that it was outside the range of competence demanded of
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attorneys in criminal cases.” Clark, 769 F.3d at 725 (punctuation modified). “When evaluating
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counsel’s conduct, [the court] must make every effort to eliminate the distorting effects of
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hindsight, and to evaluate the conduct from counsel’s perspective at the time.” Id.
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“A defendant is prejudiced by counsel’s deficient performance if there is a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
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been different.” Clark, 769 F.3d at 725. “A reasonable probability is a probability sufficient to
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undermine confidence in the outcome.” Id.
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Because hindsight is 20/20, “counsel is strongly presumed to have rendered adequate
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assistance and made all significant decisions in the exercise of reasonable professional
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judgment.” Strickland, 466 U.S. 668, 690 (1984). State court review of counsel’s performance
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is therefore highly deferential. Federal court review on habeas is “doubly deferential.” Cullen
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v. Pinholster, 563 U.S. 170, 190, 131 S. Ct. 1388, 1403 (2011).
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“In the context of a guilty plea, the ineffectiveness inquiry probes whether the alleged
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ineffective assistance impinged on the defendant’s ability to enter an intelligent, knowing and
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voluntary plea of guilty.” See Lambert v. Blodgett, 393 F.3d 943, 979 -980 (9th Cir. 2004).
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Harmon’s first argument that counsel was ineffective for failing to challenge the
indictment is waived by his guilty plea. He cannot raise this claim now. (see above)
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Harmon further argues that counsel “threatened to put me in Rule 11 court” and “told me
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that I had to sign [the plea agreement] and that my family needed me to sign it.” (Doc. 1, pp.
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6-7). The court construes this claim as an argument that counsel “strong armed” him into
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accepting the plea.
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The Arizona Court of Appeals denied all of Harmon’s ineffective assistance claims as
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waived without specifically addressing Harmon’s claim1 that he was “strong armed” into
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accepting the plea. (Doc. 16, pp. 69-72) This claim relates to his decision to voluntarily accept
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the plea and is not waived. See Lambert, 393 F.3d at 979 -980. This court therefore looks
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through the decision of the Arizona Court of Appeals and examines the decision of the trial
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court denying Harmon’s PCR petition.
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The court assumes, without deciding, that Harmon properly raised this issue in his petition
for review, as he alleges in the pending petition. (Doc. 1, p. 7)
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The trial court addressed this claim on the merits and denied it in light of Harmon’s
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statement at the change of plea hearing that no force or threats were used to get him to plead
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guilty. (Doc. 16, p. 30) Essentially the court found that there was no evidence that counsel
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threatened Harmon and no evidence that counsel’s alleged statements improperly coerced him
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into pleading guilty. The court further noted that if Harmon had lost at trial, he “would have
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been facing up to twenty-five years in prison on each of the class 3 felonies.” (Doc. 16, p. 66)
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Apparently, the court decided that the advantageous nature of plea deal made it likely that the
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defendant accepted the plea voluntarily.
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The state court’s prior adjudication of this claim did not “result[] in a decision that was
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contrary to, or involve[] an unreasonable application of, clearly established Federal law, as
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determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). Neither did it
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“result[] in a decision that was based on an unreasonable determination of the facts in light of
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the evidence” available to the trial judge. 28 U.S.C. § 2254(d); See also United States v. Ross,
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511 F.3d 1233, 1236 (9th Cir. 2008) (“Statements made by a defendant during a guilty plea
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hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea.”).
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RECOMMENDATION
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The Magistrate Judge recommends that the District Court, after its independent review
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of the record, enter an order Denying the petition for writ of habeas corpus. Harmon’s claim
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that the state overcharged his crimes is waived by his plea of guilty. Counsel did not “strong
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arm” Harmon into accepting the plea agreement.
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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within
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14 days of being served with a copy of this report and recommendation. If objections are not
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timely filed, they may be deemed waived. The Local Rules permit a response to an objection.
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They do not permit a reply to a response without the permission of the District Court.
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DATED this 28th day of January, 2019.
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