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Amis v. Ryan

United States District Court, Ninth Circuit

December 18, 2013

Richard Wiley Amis, Jr., Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

JAMES F. METCALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated 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 March 25, 2013 (Doc. 1). On October 18, 2013 Respondents filed their Response (Doc. 16). 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 & PROCEEDINGS AT TRIAL

On June 28, 2001, Petitioner was indicted in Yavapai County Superior Court on 14 charges of sexual misconduct with five different victims under the age of 15, occurring over the preceding six years. (Exhibit A, Indictment.) (Exhibits to the Answer, 16, are referenced hereinafter as "Exhibit ___.") Counsel was appointed, Petitioner was found competent to stand trial, and eventually Petitioner entered into a written Plea Agreement (Exhibit E). (Exhibit B, Evaluation Order; Exhibit C, M.E. 8/21/01.)

Under the Plea Agreement, Petitioner agreed to plead guilty to 4 of the charges, and two lesser included offenses, in exchange for dismissal of the remaining charges, and an agreement not to bring charges as to eight additional victims. (Exhibit E.) Petitioner entered his plea on November 27, 2001, the plea was accepted, and the matter set for sentencing. (Exhibit F, M.E. 11/27/01; Exhibit WW, R.T. 11/27/01.)

A mental health expert was appointed to evaluate Petitioner for sentencing. (Exhibit H, Order 2/13/02.) A Presentence Investigation (Exhibit I) was prepared and reflected a history of learning disabilities. On March 11, 2002, Petitioner was sentenced to consecutive sentences of 5.25, 7, 13, 13, 15, and 7 years in prison (a combined total of 60.25 years. (Exhibit J, Sentence.)

The prosecution filed a Motion to Correct Sentencing Order (Exhibit L), pointing out that in the written Sentence the credit for time served had been incorrectly applied to each of the counts, not just the first of the consecutive sentences. Consequently, on April 10, 2002, the trial court amended the sentence to limit the credit for time served to only one count. (Exhibit N.)

B. PROCEEDINGS ON DIRECT APPEAL

As a pleading defendant, Petitioner had no right to file a direct appeal. See Summers v. Schriro, 481 F.3d 710, 716-717 (9th Cir. 2007). Petitioner asserts in his Petition that he filed a direct appeal on September 16, 2010, with an Arizona Supreme Court decision being issued March 5, 2013. (Petition, Doc. 1 at 2.) Those are the dates of Petitioner's Notice of PCR in his second PCR proceeding (Exhibit MM at "3"), and the Arizona Supreme Court ruling issued in that PCR proceeding (Exhibit VV). The trial court's docket does not reflect a notice of appeal being filed. (Exhibit ZZ.) Consequently, the undersigned finds that Petitioner did not file a direct appeal, and that references in the Petition to such an appeal are related to the second PCR proceeding.

C. PROCEEDINGS ON FIRST, "OF_RIGHT" POST-CONVICTION RELIEF

Petitioner commenced his first PCR proceeding by filing a Notice of Post-Conviction Relief (Exhibit O) on May 13, 2002. Counsel was appointed, but subsequently moved to withdraw, and substitute counsel was appointed. (Exhibit P, M.E. 5/14/02; Exhibit Q, Motion; Exhibit R, Order 6/5/02.) Counsel filed a petition arguing Petitioner's actual innocence of one of the charges. (Exhibit U, PCR Petition.) On August 6, 2003, the PCR court summarily denied the petition, finding that Petitioner failed to establish his actual innocence, his new evidence merely asserting an alibi. (Exhibit DD, Order 8/6/03.)

Petitioner obtained an extension through September 22, 2003 to request a rehearing. (Exhibit EE, Motion; Exhibit F, Order 8/22/03.) On September 15, 3003, Petitioner filed pro se a Motion for Rehearing (Exhibit GG), which was summarily denied on September 19, 2003 (Exhibit HH, Order 9/19/03).

Forty seven days later, on November 5, 2003, Petitioner filed with the Arizona Court of Appeals a Petition for Review (Exhibit II). That petition was dismissed as untimely. (Exhibit JJ, Order 11/18/03.) Petitioner filed a motion for reconsideration (Exhibit KK), arguing that his petition had been filed within 30 days of the ruling on his motion for rehearing, Petitioner having delivered it to prison officials on October 15, 2013. The court denied the motion for reconsideration, advising Petitioner to argue the issue of delivery to prison officials to the PCR court in a motion for delayed petition for review. (Exhibit LL, Order 12/8/03.) Nothing in the record suggests Petitioner did so.

Petitioner alleges in his Petition that he sought review by the Arizona Supreme Court in his first PCR proceeding. In doing so, however, Petitioner identifies the date of filing of that petition as September 16, 2010. (Petition, Doc. 1 at 2.) Thus it appears Petitioner's allegations relate to his second PCR proceeding. Accordingly, the undersigned finds that Petitioner did not seek further review.

D. PROCEEDINGS ON SECOND POST-CONVICTION RELIEF

On October 7, 2010, almost seven years after the denial of his first PCR proceeding, Petitioner filed his second Notice of Post-Conviction Relief (Exhibit MM). The PCR court summarily dismissed the notice on the basis that the petition was untimely as to some claims, and for the others Petitioner had not complied with the requirements of raising them in an untimely petition. (Exhibit NN, Order ...


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