United States District Court, D. Arizona
BERNARDO P. VELASCO, Magistrate Judge.
Petitioner, Eric Smith, through counsel, filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to Title 28, U.S.C. § 2254 with Appendix Items 1 through 16 attached. (Doc. 1) Respondents have filed an answer to the petition (Answer). (Doc. 11.) Petitioner has filed a reply (Reply). (Doc. 17.)
In accordance with provisions of Title 28, U.S.C. § 636(c)(1), all parties consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 19.)
For the reasons discussed below, the Magistrate Judge denies the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Court Proceedings
Petitioner, the victim's stepfather, lived with the victim K., and her mother and two brothers from the time K. was an infant. App. Item 2, Reporter's Transcript ("R.T.") 10/07/09, at 168-170. When K. was approximately nine years old, Petitioner began to touch her inappropriately. Id. at 173-176. The touching by Petitioner escalated into repeated instances of increasingly-serious sexual contact, including oral sexual contact and digital and penile penetration. Id. at 174-188. Just before K. turned 14 years old, K. confronted Petitioner and told him she wanted it to stop. Id. at 188, 190. Petitioner complied. Id. at 190. A short time after the contact stopped, when K. was around 15 years old, K. reported the conduct to her mother, her mother's friend, and her brother, id. at 207; App. Item 3, R.T. 10/08/09, at 15-16, 60, but later recanted the allegations and the police were never alerted. R.T. 10/08/09, at 15, 45, 48-49, 61-62.
Several years later, when K. was 17 years old, Petitioner filed for divorce from K.'s mother. R.T. 10/07/09, at 195; R.T. 10/08/09 at 138-39. K. and her mother obtained an order of protection against Petitioner shortly after Petitioner filed for divorce. R.T. 10/07/09, at 208. On February 2, 2009, K. informed the police that Petitioner had violated the order of protection. R.T. 10/08/09, at 8-9. At that time, K. also informed police about Petitioner's earlier sexual contact. R.T. 10/07/09, at 193; R.T. 10/08/09, at 9-10. With the assistance of the police, K. made a confrontation call to Petitioner. R.T. 10/07/09, at 194; R.T. 10/08/09 at 20. The call was recorded and later played to the jury. R.T. 10/07/09, at 194; R.T. 10/08/09 at 20-22. During the call, K. never directly accused Petitioner of molesting her, but when she stated she didn't understand why "it" had happened to her, Petitioner responded that K. "did not do anything, It wasn't [her] fault" and that Petitioner was "sick, I'm sick, I got a problem." R.T. 10/08/09, at 152. Petitioner also told K. in the call that "I never did that with anybody else. I never wanted to do it with anybody else and I don't know why. And I can't go to therapy and talk about it either." Id. at 154. Petitioner testified that during the call these statements were made in reference to the divorce, having a girlfriend while they were still married, and leaving the family. Id. at 153.
At trial, over the hearsay objection of defense counsel, an acquaintance of K.'s in middle school, Joshua Rodriguez, was called by the state as a rebuttal witness. R.T. 10/08/09 at 96-98, 210. Rodriguez testified that in middle school, around the ages of 12 or 13 years old, Rodriguez and K. were "boyfriend girlfriend" and at that time K. told Rodriguez that her father had raped her. Id. at 212-213. The trial court denied Petitioner's request to impeach Rodriguez with his prior conviction for possession of drug paraphernalia. Id. at 98-102.
On October 09, 2009, after a three-day jury trial, Petitioner was convicted of five counts of sexual conduct with a minor and two counts of child molestation. App. Item 5, R.T. 10/09/09 at 154-156; App. Item 8, Memorandum Decision, ¶ 1. The trial court sentenced him to consecutive, mitigated prison terms totaling 113 years. App. Item 8, ¶ 1.
On April 20, 2010, Petitioner, through counsel, filed a direct appeal alleging the trial court violated Petitioner's Fifth, Sixth and Fourteenth Amendment rights by (1) allowing the state to call Joshua Rodriguez as a rebuttal witness; (2) allowing the State to introduce inadmissible, hearsay testimony from two witnesses; and (3) prohibiting defense impeachment of a key witness. App. Item 5, Opening Brief. On September 20, 2010, the Arizona Court of Appeals affirmed Smith's convictions and sentences in a memorandum decision. App. Item 8.
Petitioner filed a motion for reconsideration, (App. Item 9), that the trial court denied on October 12, 2010. App. Item 11. Smith filed a petition for review before the Arizona Supreme Court on November 2, 2010. App. Item 12. The Arizona Supreme Court denied review on March 15, 2011. App. Item 14.
C. Petition for Post-Conviction Relief
On May 18, 2011, Smith filed a notice of post-conviction relief. App. 15. In an order dated December 28, 2011 but filed on January 3, 2012, the trial court denied post-conviction relief, noting Petitioner's failure to file a petition pursuant to Montgomery v. Sheldon, 181 Ariz. 256 (1995). App. Item 16. Petitioner did not appeal the trial court's ruling.
D. Federal Proceedings
On January 3, 2013, Petitioner filed this federal habeas corpus petition. (Doc. 1) Petitioner raises three grounds for relief. He contends that the trial court violated his Fourteenth Amendment due process rights by permitting the State to present Joshua Rodriguez as a rebuttal witness (Ground One), prohibiting the defense from impeaching Joshua Rodriguez with a prior criminal conviction (Ground Two), and allowing the State to present inadmissible hearsay from two witnesses (Ground Three).
A. Standard of Review
Because Smith filed his petition after April 24, 1996, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) (holding that AEDPA governs federal habeas petitions filed after the date of its enactment, April 24, 1996).
B. The Petition is timely.
A one year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1).
The running of this one-year statute of limitations on habeas petitions for state convictions is tolled during any period when "a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" in any state court. See 28 U.S.C. § 2244(d)(2). Thus, the statute of limitations is tolled during the pendency of a state court action for post-conviction relief. 28 U.S.C. § 2244(d)(2).
An application contemplated by section 2244(d)(2) is properly filed "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted). The United States Supreme Court has held that untimely state post-conviction petitions are not "properly filed" under AEDPA, and do not toll AEDPA's statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
Smith had until one year after his conviction and sentence became final to file his federal petition. Respondents assert that Petitioner had until December 28, 2012 in which to file his habeas petition, and thus, his Petition filed on January 3, 2013 is untimely. The undersigned disagrees, and ...