United States District Court, D. Arizona
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 September 5, 2013 (Doc. 1). On December 4, 2013, Respondents filed their Response (Doc. 9). Petitioner filed a Reply on December 19, 2013 (Doc. 10).
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. PROCEEDINGS AT TRIAL
On August 16, 2007, Petitioner was indicted in Mohave County Superior Court on one count of kidnapping of a minor under the age of 15. (Exhibit A, Indictment.) (Exhibits to the Answer, Doc. 9, are referenced herein as "Exhibit ___.") The state moved to add an allegations of a 2006 prior conviction concerning attempted sexual exploitation of a minor (Exhibit B), commission while on probation (Exhibit C), and aggravating factors (Exhibit D). The motions were granted. (Exhibit E, M.E. 9/24/07.)
On February 29, 2008, Petitioner entered into a written plea agreement ("Stipulated Guilty Plea") wherein Petitioner agreed to plead guilty to attempted kidnapping of a child and attempted molestation of a child, and a violation of probation. The parties stipulated to 12.5 year terms on the kidnapping and probation violation, and supervised probation on the attempted molestation. (Exhibit F, Plea Agreement.)
Petitioner appeared on March 7, 2008 and entered his guilty plea pursuant to the plea agreement. (Exhibit G, M.E. 3/7/08.) On April 4, 2008, Petitioner was sentenced to 12.5 years on the kidnapping, 3.5 years on the probation violation (Exhibit H, Judgment), and lifetime probation on the attempted molestation (Exhibit I, Judgment).
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 did not file a direct appeal. (Petition, Doc. 1 at 2.)
C. PROCEEDINGS ON POST-CONVICTION RELIEF
Some 21 months later, on January 29, 2010, Petitioner filed a Notice of Post-Conviction Relief (Exhibit J) seeking relief in an untimely petition on the basis of newly discovered evidence and that his failure to file a timely notice was without fault on his part ( id. at 2). Petitioner filed his PCR Petition on January 29, 2010 (Exhibit K) asserting claims of denial of constitutional rights, newly discovered evidence re due process and equal protection, lack of jurisdiction, and an illegal sentence. Petitioner argued his sentence was illegal because the sentencing statute did not include a sentencing range for attempted kidnapping.
On April 8, 2010, the PCR court summarily denied the petition, finding that Petitioner's claims of an illegal sentence were without merit, and that in any event, he had stipulated in his guilty plea to the sentence he received. (Exhibit L, Order 4/8/10.)
On October 4, 2010, Petitioner filed a Motion for Status (Exhibit M), requesting the status of his PCR petition. The PCR court directed the clerk to forward a copy of the earlier order, and expressly declined to construe the motion as one for rehearing or as a petition for review. (Exhibit N, M.E. 10/8/10.)
On November 16, 2010, Petitioner filed a Petition for Review (Exhibit V), which was denied by the Arizona Court of Appeals on November 23, 2010 as untimely (Exhibit P, Order 11/23/10). Petitioner sought reconsideration (Exhibit Q), which was denied with instructions that Petitioner should seek leave to file an untimely petition for review from the PCR Court. (Exhibit R, Order 12/22/10.)
On January 27, 2011, Petitioner filed a Motion (Exhibit S) with the PCR Court seeking a recall and reissuance of its denial of his PCR petition. The PCR Court construed the filing as a motion for an extension of time to file a petition for review (Exhibit T, M.E. ...