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Rios v. Ryan

United States District Court, Ninth Circuit

December 10, 2013

Federico Olivas Rios, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

MICHELLE H. BURNS, Magistrate Judge.

Petitioner Federico Olivas Rios, who is confined in the Arizona State Prison Complex-Florence in Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. (Doc. 1.) Respondents filed an Answer (Doc. 10), and despite having an opportunity to do so, Petitioner has not filed a traverse.

BACKGROUND[1]

On October 20, 2004, the Maricopa County Grand Jurors indicted Petitioner on five counts of molestation of a child (Counts 1, 2, 4-6) and one count of kidnapping (Count 3). (Exh. A.) The Arizona Court of Appeals summarized the facts underlying Petitioner's convictions and sentences as follows:

In June of 2004, cousins [R.C.] and [S.G.] lived together with their mothers in their Grandmother Esther's home. [R.C.] was eight years old and [S.G.] was nine years old at that time. Several other extended family members, totaling fifteen people, also resided in this small home. Among them included Rios, Esther's boyfriend.
On approximately June 27, 2004, [R.C.] approached her Aunt Carmen, who also resided in the home, and told her that Rios "touched her." Carmen thought that [R.C.] was lying, as [R.C.] had a reputation for untruthfulness. On June 28, [R.C.] visited her Aunt Elizabeth and Grandmother Rosemary from her father's side of the family. During this visit, [R.C.] appeared quiet and out-of-character. Elizabeth asked [R.C.] what was wrong, and [R.C.] confided that Rios had "touched her in the wrong way" and that it had happened more than once.
Elizabeth called [R.C.]'s mother, Rosa, to tell her what the child had said. Rosa responded that [R.C.] was lying and that she would beat the child "until she's black and blue." Rosa denies she made that remark but agrees that she was angry and told [R.C.] that she was in trouble for lying. The next day, [R.C.] was taken to Child Help USA ("Child Help") to be interviewed regarding her statements. At Child Help, police detective Mary Kunkel interviewed [R.C.]. [R.C.] told Kunkel that on one occasion she was in the bedroom with Rios when he put his hand down her pants and touched her buttocks and vagina. During this incident, Rios kissed [R.C.] while holding her behind the head so that she could not leave. [R.C.] also described an earlier occasion during which Rios forced her to touch his penis.
[S.G.] was also taken to Child Help, to be interviewed by Christina Schopen. [S.G.] told Christina that Rios had touched her vagina on two occasions. On one occasion [S.G.] was on the couch when Rios lifted the covers and touched her vagina over her clothes. On the second occasion, Rios touched her buttocks and vagina while she was watching a movie on the bed.
After the allegations had been made, neither of the girls were supported by family members. Multiple family members testified that [R.C.] had a reputation for untruthfulness. Rosa testified that Esther no longer allowed [R.C.] to call her house. [S.G.] was described as someone who would always follow [R.C.].
Some time after their interviews at Child Help, [S.G.] and [R.C.] recanted their stories. Both claimed that they were lying when they made the allegations and that Rios never actually touched them. A couple of days after the interview at Child Help, [S.G.]'s mother, Priscilla, testified that [S.G.] told Esther that the allegations were not true. [S.G.] claimed that she lied at Child Help because she was scared she would go to jail if she did not lie or that [R.C.] would not be her friend anymore. [R.C.] could not explain why she lied. [R.C.] and [S.G.] continue to claim that the allegations are false.

(Exh. S at 2-4.)

During trial, the trial court dismissed one of the counts of child molestation - Count 4 from the indictment. (Exh. G.) The jury found Petitioner guilty of the remaining four counts of molestation of a child and one count of kidnapping. (Exh. I.) On October 12, 2005, the trial court sentenced Petitioner to the presumptive term of 17 years' imprisonment for each count, ordering Counts 1 and 2 to run concurrently, Count 3 to run consecutively to Counts 1 and 2, and Counts 5 and 6 to run concurrently to each other but consecutively to Count 3. (Exh. J.)

Petitioner filed a timely notice of appeal on November 1, 2005. (Exh. M.) His appellate counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), finding there was "no arguable question of law that is not frivolous" to raise on direct appeal. (Exhs. N, O.) His counsel also filed a motion for leave to allow Petitioner to file "a supplemental brief in propria persona, " which the Arizona Court of Appeals granted. (Exhs. P, Q, R.) Petitioner, however, did not file a supplemental brief. (Exhs. S, X.) On August 29, 2006, in a memorandum decision, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences after it "reviewed the entire record for reversible error and [found] none" and determined "reasonable evidence" supported each of the convictions. (Exh. S.) Petitioner did not file a petition for review in the Arizona Supreme Court. (Exh. T.)

On June 29, 2009, Petitioner filed a pleading entitled, "Amended Notice of Post-Conviction Relief."[2] (Exh. U.) He raised the following issues: (1) the trial court committed error by imposing aggravated, consecutive sentences based on facts that had not been found by a jury or proven beyond a reasonable doubt, and by imposing lifetime probation; (2) the trial court violated the Double Jeopardy and Due Process Clauses by imposing consecutive sentences and lifetime probation; (3) the trial court violated Petitioner's Sixth Amendment right to confrontation by denying him the opportunity to confront his accusers and cross-examine "any documents"; (4) Petitioner's rights to equal protection and due process were violated because he was sentenced illegally, he did not receive adequate interpretation of the proceedings, the state "appointed ineffective assistance of counsel, " and the state ...


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