REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, Magistrate Judge.
Pending before the court is an amended petition for writ of habeas corpus filed on September 27, 2010, by Theodore Joseph Pauley, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 6)
Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation.
The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the petition. Trial counsel was not ineffective for failing to discovery exculpatory evidence.
Summary of the Case
Pauley was convicted after a jury trial of "four counts of child molestation, one count of attempted sexual conduct with a person under 15, and two counts of public sexual indecency." (Respondents' answer, Exhibit A, pp. 1-2.); (Doc. 12-1, pp. 2-3) The trial court sentenced Pauley to "consecutive prison terms of 17 years and 10 years on two of the courts, followed by consecutive terms of 35 years to life on two other counts, followed by concurrent six-year terms on additional counts, to be served consecutively to the prior sentences, followed finally by a consecutive term of 35 years to life on the final count." (Respondents' answer, p. 3.); (Doc. 12-1, p. 3)
Pauley filed a timely notice of direct appeal, but it was stayed when Pauley filed a petition for post-conviction relief alleging ineffective assistance of trial counsel. (Respondents' answer, p. 3.) The trial court denied the petition and subsequent motion for reconsideration. Id. When Pauley filed a petition for review, the court of appeals combined his petition with his direct appeal. Id.; (Doc. 12-1, p. 43)
In his combined appeal, Pauley argued (1) the trial court erred by admitting his statement at trial because it was hearsay, (2) the trial court erred by precluding exculpatory evidence offered the last day of trial, and (3) trial counsel was ineffective for failing to discover the exculpatory evidence earlier. (Respondents' answer, Exhibit J); (Doc. 12-2) The court of appeals affirmed his convictions and sentences and denied the petition for review on March 18, 1993. (Respondents' answer, Exhibit A.); (Doc. 12-1) The Arizona Supreme Court denied review on December 17, 1993. (Respondents' answer, p. 3.)
In November of 1995, Pauley filed a second notice of post-conviction relief citing a recent change in the law. (Respondents' answer, p. 3.) In March of 1996, Pauley sent a letter to the court inquiring about the status of his case. Id. Three years later, he filed a petition for the production of documents. Id., pp. 3-4. On April 5, 1999, the trial court granted the petition and ordered that a transcript of the sentencing be prepared and sent to Pauley by May 17, 1999. (Respondents' answer, Exhibit S.) There are no further filings in the record relating to this post-conviction proceeding. (Respondents' answer, p. 4.)
On June 25, 2010, Pauley filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed an amended petition on September 27, 2010. He claims: (1) "The State violated the Double Jeopardy Clause... by charging Petitioner with multiple counts for the same offense"; (2) "The trial court erred in barring the testimony of a defense witness"; (3) "Trial counsel was ineffective by submitting into evidence an illegible copy of victim's statement thus preventing Petitioner from having a fair trial"; and (4) "The trial court committed reversible error by admitting Petitioner's statement into evidence." (Doc. 6)
On January 26, 2011, the respondents filed an answer arguing the petition is time-barred. (Doc. 12) They further argue Claims 1 and 2 are procedurally defaulted and Claim 4 is not cognizable. (Doc. 12) Pauley filed a reply on March 10, 2011. (Doc. 13)
On March 31, 2011, Magistrate Judge Edmonds, to whom the case was referred, issued a report and recommendation concluding the petition should be dismissed as time-barred. (Doc. 14) The District Court did not adopt the recommendation and referred the case for further proceedings. (Doc. 21) On January 22, 2013, the case was referred to Magistrate Judge Bowman. (Doc. 22)
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...