United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LAWRENCE O. ANDERSON, Magistratre Judge.
This matter is before the Court on Petitioner's pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Amended Petition"). Petitioner challenges his criminal convictions in Pinal County Superior Court, State of Arizona, Case No. CR2002-01235. (Doc. 7) Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus along with supporting exhibits. (Doc. 14) Petitioner has not filed a reply. As explained below, the undersigned Magistrate Judge recommends the Amended Petition be denied.
A. Trial and Sentencing
The State of Arizona indicted Petitioner in October 2002 on one count of Assault with Intent to Incite a Riot or Participate in a Riot While in Custody, a Class Two felony, and one count of Criminal Damage in Excess of $10, 000.00, a Class Four felony. (Doc. 14, Exhibit ("Exh.") E) The charges arose from Petitioner's role in a riot in June 2002 at the Pinal County Adult Detention Center. (Doc. 14, Exh. G) Following a jury trial in January 2005, the jury found Petitioner guilty of both counts. ( Id. ) On February 14, 2005, the trial court sentenced Petitioner to concurrent prison terms of 15.75 years on the first count and 10 years on the second count. (Doc. 14, Exh. B)
B. Direct Review
Petitioner, through counsel, filed a timely Notice of Appeal on February 14, 2005. (Doc. 14, Exh. D) Petitioner filed an Opening Brief on August 15, 2006. (Doc. 14, Exh. E) After the State filed an Answering Brief, Petitioner filed a Reply Brief on February 28, 2007. (Doc. 14, Exh. F) On May 4, 2007, the Arizona Court of Appeals issued a Memorandum Decision in which it "affirmed in part and remanded in part with directions." (Doc. 14, Exh. G) The Court of Appeals found the trial court failed to follow the proper procedure with respect to Petitioner's admissions of prior felony convictions, which were used to enhance his sentence. (Doc. 14, Exh. G at 9-12) The case was remanded to the trial court to conduct a hearing regarding whether Petitioner knew the consequences of admitting to prior convictions. ( Id. ) Petitioner filed a Petition for Review to the Arizona Supreme Court on June 18, 2007, which was denied on November 29, 2007. (Doc. 14, Exhs. H, I)
Pursuant to the Court of Appeals' directive, the trial court held a hearing on August 15, 2008, in which it found Petitioner's admissions to prior felony convictions were made knowingly, intelligently and voluntarily. (Doc. 14, Exh. K) The trial court then imposed a revised sentence of 12.5 years for the participation in a prison riot conviction and 8 years on the criminal damage conviction, again to run concurrently. ( Id. ) Petitioner did not file an appeal of the newly imposed sentence. (Doc. 14, Exh. A)
C. State Post-Conviction Proceedings
Soon after the Arizona Supreme Court denied his petition for review on direct appeal, Petitioner filed a Notice of Post-Conviction Relief on December 21, 2007. (Doc. 14, Exh. M) On May 13, 2009, Petitioner's appointed counsel filed a Notice of Completion of Post-Conviction Review by Counsel; Motion for Extension of Time to Allow Defendant to File Pro Per Petition. (Doc 14, Exh. O) On May 19, 2009, the trial court granted the motion and set a June 19, 2009 deadline for Petitioner to file a pro se supplemental petition for post-conviction relief. (Doc. 14, Exh. P) Petitioner did not file a supplemental petition, but on July 17, 2009, Petitioner filed a motion to correct his sentence. (Doc. 14, Exhs. A, Q) Respondents have presented nothing to show whether the trial court ever ruled on Petitioner's notice of post-conviction relief or the motion to correct his sentence. Likewise, Respondents do not address or provide anything in the record to indicate whether Petitioner sought review of any adverse post-conviction relief decision by the trial court.
D. Federal Habeas Petition
On December 24, 2012, Petitioner filed his Petition for Writ of Habeas Corpus in this District Court. (Doc. 1) After the original petition was dismissed with leave to amend, Petitioner filed his Amended Petition on April 22, 2013. (Doc. 7) Petitioner raises three grounds for relief. In Ground One, Petitioner alleges there is insufficient evidence to support his convictions, contrary to the Due Process Clause of the Fifth and Fourteenth Amendments. In Ground Two, Petitioner alleges his prison sentence was excessive, in violation of the Eighth Amendment. In Ground Three, Petitioner challenges the Governor of Arizona's decision to deny a reduction or commutation of his sentence despite a favorable recommendation by the Arizona Board of Executive Clemency. On August 15, 2013, Respondents filed their Answer. (Doc. 14) As noted above, Petitioner has not filed a reply.
Respondents argue the Amended Petition should be dismissed as time-barred because it was not filed within the applicable statute of limitations period. Alternatively, Respondents contend Petitioner's claims are procedurally defaulted. Because Respondents fail to provide sufficient information to show the Amended Petition is untimely,  the undersigned Magistrate Judge has ...