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 July 5, 2013 (Doc. 1). On December 9, 2013 Respondents filed their Response (Doc. 11). Petitioner filed a Reply on January 2, 2014 (Doc. 12).
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 AND PROCEEDINGS AT TRIAL
On January 23, 1997, Petitioner was indicted in a 44 count Indictment (Exhibit A) alleging various crimes involving sexual and other abuse of a child under the age of 15, and the filming of such conduct. (Exhibits to the Answer, Doc.11, are referenced herein as "Exhibit ___.") An Amended Indictment (Exhibit B) was field on November 24, 1998, reducing the charges to 21 counts, and eliminating the charges regarding the filming. The charges all related to conduct with Petitioner's girlfriend's sister, who was aged 9 or 10 at the time of the offenses. (Exhibit H, Mem. Dec. 4/20/00 at 1, 9.)
Petitioner proceeded to a jury trial, and was convicted on 17 counts of sexual conduct, 3 counts of molestation, and 1 count of sexual exploitation. ( Id. ) He was sentenced on January 22, 1999 to consecutive 20 year sentences on each of the 17 sexual conduct counts, concurrent 17 year sentences on each of the three molestation counts, to run consecutive to the other counts, and a consecutive 17 year sentence on the sexual exploitation count, a combined sentence of 374 years. (Exhibit F, R.T. 1/22/99 at 34.)
B. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal, arguing error from: (1) failure to sever charges; (2) failure to grant a mistrial as a result of testimony by the victim on uncharged misconduct; (3) failure to give a lesser-included offense instruction and a special interrogatory on the verdict forms based on the lack of evidence on the victim's age; (4) refusal to permit an argument based on "negative evidence" based on the lack of documentation of the victim's age and physical proof of penetration; (5) counts based on causing the minor to engage in self-masturbation were not covered by the statute, which requiring two or more persons be engaged in the conduct; (6) the three counts based on the self-masturbation all stemmed from a single instance of conduct; (7) two counts of sexual conduct were unsupported by evidence of penetration, as opposed to contact; and (8) refusal to clarify the disparate use of the terms vagina and vulva in the various counts. (Exhibit G, Opening Brief.)
On April 20, 2000, the Arizona Court of Appeals rejected the arguments, and affirmed Petitioner's convictions and sentences. (Exhibit H, Mem. Dec. 4/20/00.)
Petitioner filed a Petition for Review by the Arizona Supreme Court. Review was denied on December 5, 2000. (Exhibit H, Order and Mandate 1/3/01.)
C. PROCEEDINGS ON POST-CONVICTION RELIEF
First PCR - Petitioner commenced his first post-conviction relief proceeding during the pendency of his direct appeal by filing his Notice of Post-Conviction Relief on May 17, 2000. Counsel was appointed and filed a Notice of Completion of Review (Exhibit J) indicating an inability to find a colorable claim for review. Petitioner was granted leave to file (within 45 days) a petition in propria persona, with counsel to remain in an advisory capacity. (Exhibit K, M.E. 5/23/01.) Petitioner did not do so, and on August 6, 2001, the PCR court dismissed the proceeding. (Exhibit L, ME. 8/6/01.)
Petitioner alleges in his Petition that he sought review from the Arizona Court of Appeals. (Petition, Doc. 1 at 5.) The Court's docket reflects no petition for review. (Exhibit M, Docket at 5.) Respondents allege that no review was sought. (Answer, Doc. 11 at 6.) "The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." 28 U.S.C. § 2248. Petitioner's Reply does not assert that the Answer is in error on this point. The undersigned finds no evidence to counter the allegation of the Answer, and therefore finds that Petitioner did not seek further review.
Second PCR - Petitioner alleges that his second PCR petition was filed in November 2009. (Petition, Doc. 1 at 4.) Respondents allege that his second petition was filed on December 30, 2004. (Answer, Doc. 11 at 6.) The PCR court's minute entry in his third PCR proceeding reflects that his second PCR proceeding was disposed of on April 2, 2003. (Exhibit O, M.E. 2/1/05.) The PCR court's docket reflects that a "Motion for Extension of Time" was filed on March 12, 2003, and a ruling was filed on April 4, 2003. (Exhibit M, Docket at 5.) Thus, it appears that Petitioner's "Motion for Extension of Time" was construed as a PCR petition.
Based on the record provided, the undersigned finds that Petitioner's second PCR proceeding was commenced on March 12, 2003, and was dismissed on April 2, 2003.
No review was sought on this proceeding. ( See Exhibit M, Docket at 4-5.)
Third PCR - Petitioner commenced his third PCR proceeding by filing a PCR petition on December 30, 2004 (Exhibit N). That petition was denied on February 1, 2005, based on a finding under Ariz. R. Crim. P. 32.2(a) that his "claim either was or should have been raised in the first Rule 32 proceeding." (Exhibit O, M.E. 2/1/05.)
Respondents' Answer alleges, Petitioner does not deny, and the PCR court's docket reflects, that no review was sought on this proceeding. ( See Answer, Doc. 11 at 6; Reply, Doc. 12; and Exhibit M, Docket at 4-5.) The undersigned finds no review was sought.
Fourth PCR - Petitioner commenced his fourth PCR proceeding on March 22. 2007 by filing a Petition for Post-Conviction Relief (Exhibit P). This petition was dismissed as untimely, and based on Arizona's waiver/preclusion bars in Ariz. R. Crim. P. 32.2(a). (Exhibit Q, M.E. 4/12/07.)
Petitioner filed a Petition for Review (Exhibit R), which was summarily denied on January 18, 2008. (Exhibit S, Order 1/18/08.)
Petitioner did not seek further review. (Exhibit M, Docket at 4.)
Fifth PCR - Petitioner commenced his fifth PCR proceeding by filing a "Motion for Leave to File an Amended Petition" (Exhibit T) on March 30, 2008. The PCR court denied the motion/petition on May 28, 2008, as untimely and based on ...