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Tucker v. Ryan

United States District Court, D. Arizona

April 1, 2014

Damon Shane Tucker, Petitioner,
v.
Charles L Ryan, et al., Respondents.

ORDER

JAMES A. TEILBORG, District Judge.

Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"). The Magistrate Judge issued a Report and Recommendation ("R&R") recommending that the Petition be denied and dismissed because it is barred by the Anti-Terrorism and Effective Death Penalty Act's ("AEDPA") statute of limitations. (Doc. 15 at 9). The R&R further recommended that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied. Id.

I. Review of an R&R

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). District courts are not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made"). In this case, Petitioner filed objections to the R&R, and the Court will review those objections de novo.

II. Factual and Procedural Background

The R&R summarized the factual and procedural history and neither party objected to this history. (Doc. 15 at 1-4; Doc. 16). Therefore, the Court adopts that portion of the R&R in this case. That history is as follows:

In January, 2003, Petitioner was charged by the State of Arizona with thirteen counts of sexual exploitation of a minor. (Doc. 10-1, at 3, 17.) These charges came as a result of a search warrant served by Mesa police officers on Petitioner's home, during which computer-generated photographic images of nude females appearing to be between eight and ten years old and posing in sexually explicit positions were found on Petitioner's computer and in a black binder. ( Id. at 3-4.) Petitioner admitted that the images were his. ( Id. at 4.) Petitioner was tried on six of the counts charged. ( Id. ) During his trial Petitioner denied downloading the images or ownership and knowledge of the images in the binder. ( Id. ) Petitioner was convicted on all counts, all class 2 felonies and dangerous crimes against children, and sentenced to six consecutive ten-year terms of imprisonment. ( Id. at 2, 4.)
On appeal, Petitioner's court-appointed counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), finding no colorable claims to raise on appeal. (Doc. 10-1, at 25.) Petitioner thereafter filed a pro se supplemental opening brief raising the following claims on appeal: (1) that the sexual exploitation of a minor statute is unconstitutional; (2) that the trial court erred in denying his motion to suppress his statement to police; (3) that his sentence was excessive and unconstitutional; and (4) ineffective assistance of trial counsel. (Doc. 10-2, at 3; Doc. 10-3, 17-27.) On September 13, 2005, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences, finding the ineffective assistance of counsel claim non-cognizable on direct appeal, and finding the other claims meritless. (Doc. 10-1, at 2-12.) Petitioner sought review by the Arizona Supreme Court, and on June 5, 2006, that court summarily denied review. (Doc. 10-4, at 2.)
On October 4, 2005, Petitioner filed a timely Notice of Post-Conviction Relief ("PCR"). (Doc. 10-4, at 4.) Petitioner's counsel thereafter filed a Notice of Completion of Post-Conviction Review by Counsel; Request for Extension of Time to Allow Defendant to File Pro-Per Supplement to Petition for Post-Conviction Relief, indicating that he had reviewed the record for fundamental errors pursuant to Anders, and found no claims to raise in post-conviction proceedings. (Doc. 10-4, at 11-12.) Petitioner then filed a pro se supplemental PCR petition, raising the following claims: (1) ineffective assistance of trial counsel; (2) insufficient evidence to support his convictions; (3) his convictions otherwise violated ex-post-facto principles; and (4) his sentences were excessive. (Doc. 10-4, at 14-23.) On August 28, 2007, the trial court summarily dismissed Petitioner's PCR, pursuant to Rule 32-6(C), Ariz.R.Cim.P., "for the reasons stated in the State's Response." (Doc. 11-1, at 14.) Petitioner sought review by the Arizona Court of Appeals, and on December 29, 2008, that court denied review without comment. ( Id., at 16.)
On May 11, 2009, Petitioner filed a second PCR notice. (Doc. 11-1, at 22-24.) In his pro se PCR petition, Petitioner claimed that a jury instruction omitted an essential element of the charged offense, and that his failure to raise this claim in his previous PCR petition was due to the "lack of law libraries." (Doc. 11-2, at 2-4.) Petitioner also claimed that the faulty jury instruction constituted fundamental error, and that his trial counsel's failure to object to the instruction constituted ineffective assistance of counsel. ( Id. at 5.) On November 30, 2009, the trial court summarily denied relief, finding that Petitioner's claims were untimely:
[A]n untimely notice may only raise claims pursuant to Rule 32.1(d), (f), (g), or (h). Rule 32.4(a), Arizona Rules of Criminal Procedure. In addition, defendant is precluded from relief on these claims pursuant to Rule 32(a), Ariz. R. Crim. P., because these claims either were or could have been raised on appeal or in a prior Rule 32 proceeding. ( Id. at 14.)
The Court also found that Petitioner's faulty jury instruction claim was not "newly discovered, " because it "could have reasonably been discovered prior to [Petitioner]'s sentencing, " and, in any event, Petitioner had "not shown that a different jury instruction would have changed the verdict." ( Id. at 15.) Although Petitioner claims that he sought review of the trial court's decision by the Arizona Court of Appeals, counsel for Respondents avows that the record of that court does not reflect that filing. (Doc. 10, at 4 n.3.)
On February 9, 2011, Petitioner filed a third PCR notice, and in his pro se PCR petition he raised numerous ineffective assistance of counsel claims, reurged his jury instruction challenge, and challenged his enhanced sentences. (Doc. 11-2, at 17-19; Doc. 14, at 2-11.) The trial court dismissed the petition, finding that "[t]his is [Petitioner]'s third Rule 32 proceeding and it has been initiated in an untimely manner." (Doc. 11-3, at 2.) Petitioner filed a petition for review by the Arizona Court of Appeals, and on September 21, 2011, that court denied review without comment. ( Id. at 5.)
On October 18, 2012, Petitioner filed a fourth PCR notice, and in it, claimed that a significant change in the law, specifically the holding in Martinez v. Ryan, 132 S.Ct. 1309 (2012), had occurred that probably would overturn his conviction or sentence. (Doc. 11-3, at 7, 9-10.) On October 31, 2012, the trial court denied relief, holding that "[t]he Martinez holding does not apply to the defendant nor does it provide relief at the state court level." ( Id. at 13-14.) Petitioner sought review in the Arizona Court of Appeals, and, on February 27, 2013, that court denied review without comment. ( Id. at 16.)
On March 20, 2013, Petitioner filed the instant habeas petition, in which he raises three claims: (1) that he was entitled to new counsel in state court pursuant to Martinez; (2) that the sexual exploitation of a minor statute is unconstitutional; and (3) that he is actually innocent and is thus entitled to present any unexhausted claims pursuant to the gateway exception articulated in Schlup v. Delo, 513 U.S. 298 (1995). (Doc. 1, at 6-9.) In their Limited Answer, Respondents argue that Petitioner's petition is untimely and should be dismissed, ...

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