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Tucker v. Ryan

United States District Court, Ninth Circuit

November 25, 2013

Milton Lee Tucker, 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 Amended Petition for Writ of Habeas Corpus (the "Petition"), pursuant to 28 U.S.C. ยง 2254, in which Petitioner challenges his criminal convictions in Maricopa County Superior Court, State of Arizona, Case No. CR 159112. (Doc. 7) Respondents have filed an Answer to Petition for Writ of Habeas Corpus (the "Answer") and Petitioner has filed a Reply. (Docs. 17, 19) As explained below, the undersigned Magistrate Judge recommends the Petition be denied as untimely.

I. Background

A. Factual Summary

The Arizona Court of Appeals summarized the facts of the State criminal case as follows:

On June 12, 1986, the appellant and Raymond Rigsby robbed a bank in Mesa, Arizona. The appellant took $611 from a bank teller at gunpoint while Rigsby waited outside in a running car. Police officers of the Mesa Police Department were watching the appellant and gave chase after the robbery. When the appellant attempted to flee on foot, pursuing police officers ordered him to stop. The appellant turned and fired his gun at the officers, who returned fire. The appellant was captured shortly after the shooting incident.

(Doc. 17, Exhibit ("Exh.") E)

B. Trial and Sentencing

On June 20, 1986, Petitioner was indicted on one count of Armed Robbery, a Class 2 dangerous felony under Arizona law, and one count of Aggravated Assault, a Class 3 dangerous felony. (Doc. 17, Exh. A, E) Following a jury trial in the Superior Court in October 1986, Petitioner was convicted of both counts.[1] ( Id. ) Based on his prior felony convictions and other aggravating factors, Petitioner was sentenced on November 18, 1986, to 28 years in prison for the armed robbery conviction and a consecutive term of 20 years in prison for the aggravated assault conviction. ( Id. )

C. Direct Appeal

Petitioner, through counsel, filed a timely Notice of Appeal on November 24, 1986. (Doc. 17, Exh. B) After briefing was completed, the Arizona Court of Appeals issued a Memorandum Decision on February 2, 1988, in which it affirmed Petitioner's convictions and sentences. (Doc. 17, Exh. E) Petitioner, again through counsel, filed a Petition for Review to the Arizona Supreme Court on March 2, 1988. (Doc. 17, Exh. F) The Court denied review on April 20, 1988. (Doc. 17, Exh. H)

D. State Post-Conviction Proceedings

On June 6, 1988, Petitioner filed a pro se Petition for Post-Conviction Relief. (Doc. 17, Exh. J) Pursuant to Petitioner's request, the trial court appointed counsel to represent Petitioner in the post-conviction proceedings. (Doc. 17, Exh. K) On June 30, 1988, counsel filed a Notice of Non-Supplementation of Petitioner's Post-Conviction Relief Petition, in which he stated that, after review of the record and Petitioner's pro se petition, he found no basis to amend or supplement what Petitioner filed. (Doc. 17, Exh. L) The State of Arizona filed a Response to Petition for Post-Conviction Relief on the same day as counsel's notice was filed. (Doc. 17, Exh. M) The trial court summarily dismissed the petition on July 5, 1988. (Doc. 17, Exh. N)

On July 15, 1988, Petitioner filed a Motion for Rehearing, which was denied. (Doc. 17, Exhs. P, R) After Petitioner filed, and the trial court granted, a Motion for Leave to File a Delayed Petition for Review, Petitioner filed a Petition for Review to the Arizona Court of Appeals. (Doc. 17, Exhs. S, T and U) On July 5, 1990, the Court of Appeals issued a Memorandum Decision, granting review but denying relief. (Doc. 17, Exh. V) Petitioner's ...


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