Owens v. Ryan et al

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATION 36 . The Objections (Doc. 37 ) raised by the Petitioner are OVERRULED. It is further ORDERED that the Petition for Writ of Habeas Corpus is DENIED on all claims but for claim 14. The Petition is GRANTED on claim 14, thereby overturning the conviction and sentence on Count 7 of the state court Indictment. This action is remanded to the state court for resentencing based on this Order. Signed by Senior Judge David C Bury on 6/17/16. (KAH)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 Timothy Kevin Owens, 9 10 11 12 13 ) ) Petitioner, ) v. ) ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-14-2443-TUC-DCB ORDER 14 This matter was referred to the United States Magistrate Judge 15 pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules of practice of 16 this Court for a Report and Recommendation (R&R) on the Petition for Writ 17 of Habeas Corpus (Doc. 1). Before the Court is the Magistrate Judge’s 18 Report and Recommendation (Doc. 36). The Magistrate Judge recommends to 19 the Court that relief may be granted as to one claim with denial of the 20 remaining claims. The Petitioner filed Objections (Doc. 37) and the 21 Respondents filed a Reply (Doc. 38). 22 STANDARD OF REVIEW 23 When objection is made to the findings and recommendation of a 24 magistrate judge, the district court must conduct a de novo review. 25 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 26 27 28 1 2 PETITIONER’S OBJECTIONS Petitioner generally objects to all of the legal and evidentiary 3 conclusions 4 preclusion as to grounds 9-13, 15-18, 19-22 (Doc. 37 at 1, 7, 10, 11, 5 13); (2) finding procedural default (Doc. 37 at 2); (3) failure to 6 conduct an evidentiary hearing (Doc. 37 at 3); and, (4) finding claim 7 7 did not have a reasonable likelihood of success (Doc. 37 at 6). contained 8 9 in the Report and Recommendation: (1)finding DISCUSSION The Court finds that the Report and Recommendation is thorough and 10 well-considered. 11 Recommendation. 12 claims with no additional specific examples of error. 13 14 15 16 17 18 19 20 21 22 The Respondents have no Objections to the Report and Petitioner’s Objections reiterate all of the original Owens was convicted in the Superior Court of Pima County of twenty-two felonies: illegally conducting an enterprise, conspiracy to commit unlawful possession and/or transportation of a dangerous drug for sale, six counts of possession of a dangerous drug for sale, possession of a dangerous drug, possession of a motor vehicle with an altered serial number or identification number, possession of a deadly weapon during the commission of a felony drug offense, possession of drug paraphernalia, three counts of use of a wire communication in a drug-related transaction, attempted unlawful use of a means of transportation, firstdegree burglary, kidnapping, two counts of soliciting threats and intimidation, solicitation to commit kidnapping, and solicitation to commit first-degree murder. (Doc. 13, Ex. UU at 1-2.) (R&R at 1-2.) The R&R was resolved without a hearing and this Court agrees that 23 none was required. (R&R at 47.) 24 3, 5, 6, 9-18, and 20 are procedurally defaulted. (R&R at 14.) 25 Court agrees that: Claim 1 is barred from review; Claims 2, 3, 5, 6, 9- 26 13, 15-18, and 20 are procedurally defaulted and Petitioner has not 27 established cause and prejudice or a fundamental miscarriage of justice 28 2 The R&R properly found that Claims 2, This 1 to overcome the defaults; Claims 6, 11, 20, and the in effective 2 assistance of counsel (IAC) portions of Claims 9, 12, 13, and 15-18 fail 3 on the merits; Claims 4, 7, and 8 are properly exhausted but lack merit; 4 and, Claims 19, 21 and 22 are not legally cognizable, in part, and lack 5 merit, in part. The Court will adopt the R&R and will deny Claims 1-13 6 and 15-22. 7 The Court will also adopt the recommendation that Claim 14 is 8 procedurally defaulted, but that Petitioner has established cause and 9 prejudice to overcome the default. The Court finds Petitioner is entitled 10 to relief on Claim 14. This Court will grant the writ as to this claim, 11 which results in overturning the conviction and sentence on Count 71 of 12 the Indictment, as follows: 13 The Arizona Court of Appeals holds that when a defendant is sentenced twice for the same offense, one of the sentences must be vacated even if they were imposed concurrently and did not increase the length of imprisonment. See State v. Brown, 177 P.3d 878, 882-83, 217 Ariz. 617, 621-22 (Ct. App. 2008). 14 15 16 17 18 19 20 In finding that the underlying claims of trial and appellate IAC are meritorious, the Court necessarily finds that PCR counsel was deficient in failing to raise these substantial claims. See Detrich v. Ryan, 740 F.3d 1237, 1245-46 (9th Cr 21) Teeoe teei cuet ecs tedfuto teICprino Cam1.I.Ad te i. 03. hrfr, hr s as o xue h eal f h A oto f li 4 d n, h Court finds it wins on the merits. (R&R at 28.) 21 1 27 Petitioner alleged trial and appellate counsel were ineffective for failing to raise the prohibition against double jeopardy as to Count 33, which became Count 7 in the indictment presented to the jury. The court entered judgment on Count 7 as possession of a dangerous drug for sale committed on November 7, 2004, not importation. (Doc. 13, Ex. MM at 4-5.) The court entered judgment for the same crime as to Count 8. (Id. at 5.) Ultimately, the Court sentenced Petitioner twice for these duplicate offenses, not for one count of possession and one count of importation. (Id. at 14; Ex. NN at 6-7.) Petitioner’s sentences for Counts 7 and 8 constitute multiple punishments for the same offense, which is unquestionably precluded by the double jeopardy clause. See Brown v. Ohio, 432 U.S. 161, 165 (1977). (Doc. 36 at 26-27.) 28 3 22 23 24 25 26 1 2 CONCLUSION 3 Accordingly, after conducting a de novo review of the record, 4 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 5 (Doc. 36) in its entirety. 6 Petitioner are OVERRULED. 7 The Objections (Doc. 37) raised by the IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 8 is DENIED on all claims but for claim 14. 9 claim 14, thereby overturning the conviction and sentence on Count 7 of The Petition is GRANTED on 10 the state court Indictment.2 11 for resentencing based on this Order. Clerk’s Office to enter Judgment. This action is remanded to the state court DATED this 17th day of June, 2016. 12 13 14 15 16 17 18 19 20 21 22 2 27 After a 7-day jury trial, the state court jury convicted Petitioner of all 22 counts alleged in the indictment. (Exhibit JJ; Exhibit EE, at 37–44.) The jury also found all of the state’s sentencing enhancement allegations true, beyond a reasonable doubt. (Id.) On February 12, 2007, the state trial court sentenced Petitioner to six concurrent life sentences without parole eligibility for 25 years (Counts 3, 7–8, 19–21) and 16 lesser prison terms, which ran concurrently with the life sentences. (Exhibit NN; Exhibit MM, at 13–18.) (Doc. 13 at 23.) Thus, the result here is that, in all likelihood, Petitioner will serve five rather than six concurrent life sentences without parole eligibility for 25 years. 28 4 23 24 25 26

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?