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Simpson v. Ryan

United States District Court, Ninth Circuit

June 4, 2013

Kelvin Thomas Simpson, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

LAWRENCE O. ANDERSON, Magistrate Judge.

This matter is before the Court on Petitioner's pro se Petition for Writ of Habeas Corpus (the "Petition"), pursuant to 28 U.S.C. ยง 2254, in which Petitioner challenges four criminal convictions in Maricopa County, Arizona, Superior Court, Case No. 2005-116851-001. (Doc. 1) Respondents filed an Answer to Petition and Petitioner filed a Reply to Respondents' Answer. (Docs. 10-11) As explained below, the undersigned Magistrate Judge recommends the Petition be denied as untimely.

I. Background

A. Trial and Sentencing

On June 13, 2005, the State of Arizona indicted Petitioner on two counts of Molestation of a Child, Class 2 felonies and dangerous crimes against children (Counts One and Two); and two counts of Attempted Molestation of a Child, Class 3 felonies and dangerous crimes against children (Counts Three and Four). (Doc. 10, Exhibit ("Exh.") A) The charges were based on an incident summarized by the Arizona Court of Appeals as follows:

On June 22, 2005, A.A., her twin sister, N.A., and their niece, F.A., were swimming in a pool at an apartment complex where the sisters lived. A young boy was also in the pool and the boy's mother was watching the children swim.
At the time of trial, all three girls were nine years old. A.A. testified that while swimming, a man, later identified as Defendant, grabbed her with his left hand while his right hand touched her twice on her vagina over her clothes. A.A. stated she was uncomfortable and tried to get away from him. She asked the boy to tell his mother about the incident. However, the boy was too young to understand what she was relating and the boy's mother did not speak English. Later, A.A. told her own mother what occurred.
F.A. testified at trial that while swimming in the pool, Defendant touched her on her thigh near her vagina. She also tried to tell the boy and his mother about it, but neither could understand her. However, when some friends came over to the pool, F.A. told them to tell her grandmother about the incident.
N.A. testified that when she was swimming with her sister and her niece, Defendant touched her "upper leg." She said that because she was bothered by the touch, she told her sister and her niece.
The twins' mother, F.F., and F.A.'s grandmother, testified at trial. She stated that when she returned home from the grocery store and walked by the pool, she saw Defendant in the pool with the girls. She indicated she was concerned about the situation because she had long seen Defendant staring at "little girls" and "wom[e]n" for "long periods of time."
F.F. testified that as she was putting her groceries away, a neighbor girl came by her apartment and said the boy's mother wanted to talk to her. After they spoke, F.F. took the children out of the pool and called the police. F.F. testified that she had previously instructed the girls that if anyone touched their private areas, they should tell someone.
A Phoenix Police Officer responded to the call at the victims' apartment complex. He testified the victims appeared upset. He indicated he spoke to the boy's mother who reported that Defendant "had looked at the children in a bad way." Defendant was arrested that day.
A few days after the incident, a Phoenix Police Detective interviewed the three children individually. The detective used a stuffed bear to assist the girls in identifying the body parts where Defendant had touched them. A.A. indicated Defendant had touched her on the vagina over her clothes. N.A. and F.A. indicated that Defendant had touched each of them on the crevice of the upper thigh near the vagina. The detective also interviewed the boy's mother who reported she did not see Defendant touch the children.[1]

( Id., Exh. N at 2-4)

Following a jury trial[2] in July 2006, the jury found Petitioner guilty of all four counts. ( Id., Exhs. E-G, H at 3-4) The trial court sentenced Petitioner to the presumptive prison term of 17 years on Count One and a consecutive prison term of 10 years on Count Two. ( Id., Exh. I at 12) On Counts Three and Four, the trial court sentenced ...


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