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Calhoun v. Ryan

United States District Court, Ninth Circuit

June 25, 2013

Matthew Trey Calhoun, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

Report & Recommendation On Petition For Writ Of Habeas Corpus

JAMES F. MECALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Petitioner, incarcerated at the time in the Arizona State Prison Complex at Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on January 11, 2013 (Doc. 1).[1] On April 10, 2013, Respondents filed their Response (Doc. 11). Petitioner has not filed a Reply.

The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL

On March 21, 1996, Petitioner was indicted in the Yavapai County Superior Court on four counts of sexual contact with a minor. (Exhibit B, Indictment.) (Exhibits to the Response, Doc. 11, are referenced herein as "Exhibit ___.") He subsequently entered into a written Plea Agreement (Exhibit C), wherein he agreed to plead guilty to molestation of a child, and two counts of attempted molestation of a child. He entered his plea on May 28, 1997, and on August 5, 1997, was sentenced to 17 years in prison on the molestation charge, and sentence on the remaining charges was suspended and Plaintiff was placed on lifetime probation.

B. PROCEEDINGS ON DIRECT APPEAL

Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.)

C. PROCEEDINGS ON FIRST POST-CONVICTION RELIEF

On October 24, 1997, Petitioner filed his first Notice of Post-Conviction Relief (Exhibit E). Counsel subsequently filed a "Supplemental Petition" arguing that the trial court had improperly imposed conditions of probation which the parties had bargained to not include. On December 10, 1998, the PCR court agreed and amended the conditions of probation to eliminate the offending conditions. (Exhibit G, M.E. 12/10/98.)

In the interim, on October 30, 1997 "at the request of trial counsel, the Court amended the sentencing order waiving the community supervision requirement." (Exhibit K, Order 9/16/10 at 1.) A formal amendment to the sentence was filed January 20, 1998. (Exhibit N, Docket at no. 113.)

Petitioner did not seek further review.

D. PROCEEDINGS ON SECOND POST-CONVICTION RELIEF

More than ten years later, on April 9, 2009, Petitioner filed a Motion to Waive Community Supervision (Exhibit H), seeking to avoid. That motion was denied on April 14, 2009, the court finding the issue moot because the Court had previously "amended the Sentencing Order and Conditions of Intensive Probation." (Exhibit I, Order 4/14/9.)

Petitioner did not seek further review.

E. PROCEEDINGS ON THIRD POST-CONVICTION RELIEF

On July 7, 2010, Petitioner filed a "Rule 32 Motion to Vacate" (Exhibit J), arguing that lifetime probation was not an available sentence on the charges for which it was imposed. On September 16, 2010, the PCR court denied the petition, finding the claim "precluded" for failure to ...


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