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Kenton v. Escapule

United States District Court, D. Arizona

August 7, 2014

Albert Dean Kenton, Petitioner
v.
Laura Escapule, et al., Respondents.

REPORT & 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 San Luis, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on December 19, 2013 (Doc. 1). On March 12, 2014 Respondents filed their Response ("Limited Answer") (Doc. 13). Petitioner filed a "Motion to Strike, or alternatively Limited Reply" on April 14, 2014 (Doc. 15).

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

In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:

On August 25, 2005, Phoenix police responded to a homicide near 86th Avenue and Indian School Road. At the scene, officers discovered two victims inside a car that had crashed into a house. One witness stated that she heard a "bang sound[ing] like a tire had exploded" prior to seeing the car crash and saw a young man between 25 and 35 years old with medium height and "darker skin" exiting the rear driver's side of the vehicle shortly thereafter. Autopsy reports confirmed that the victims, a male driver and female front passenger, died from a gunshot wound to the head.
On June 16, 2006, Phoenix police arrested Kenton in connection with the incident.

(Exhibit L, Mem. Dec. at 2.) (Exhibits to the Answer, Doc. 13, are referenced herein as "Exhibit ___.")

B. PROCEEDINGS AT TRIAL

Petitioner was charged with two counts of second-degree murder, along with allegations of a prior conviction and various aggravating circumstances. ( Id. at 3.)

Evidence at trial included testimony of various acquaintances "who indicated that Kenton had told them he shot the victims because he was fearful for his life." ( Id. at 3) Testimony was presented that Petitioner was seen with the male victim the morning of the shooting, with a revolver, and that after the shooting he asked for help in retrieving a gun hidden in the vicinity of the shooting. ( Id. at 3-4) Testimony was also presented from a forensic examiner that four latent fingerprints in the crashed vehicle belonged to Petitioner, and that the use of a revolver was consistent with the absence of expended cartridges in the vehicle. ( Id. at 4.)

Petitioner was convicted as charged, and the jury found the four alleged aggravating circumstances. Petitioner was sentenced to presumptive, consecutive, 20 year prison terms on each count. ( Id. at 4.)

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal, and counsel filed an Opening Brief pursuant to Anders v. California , 386 U.S. 738 (1967) and related state authorities, and requested leave for Petitioner to be permitted to file a pro per brief. (Exhibit H, Opening Brief; Exhibit I, Motion.) Counsel then transmitted the record and transcripts to Petitioner. (Exhibit J, Letter of Transmittal.)

Petitioner failed to file a supplemental brief, and in a Memorandum Decision issued October 16, 2008 (Exhibit L), the Arizona Court of Appeals reviewed the record for reversible error, found none, and affirmed Petitioner's convictions and sentences.

D. PROCEEDINGS ON POST-CONVICTION RELIEF

On November 7, 2008, Petitioner filed a Notice of Post-Conviction Relief (Exhibit M), dated October 30, 2008. Counsel was appointed (Exhibit N, M.E. 11/17/08), who eventually filed a Notice of Completion of Post-Conviction Review (Exhibit Q) evidencing an inability to find an issue for review, and requesting leave for Petitioner to file a pro per petition. Leave was granted, giving Petitioner 45 days to file his petition. (Exhibit R, M.E. 12/7/09.) Petitioner filed a Motion to Extend (Exhibit S), seeking an extension of time to file his petition. The court granted Petitioner an extension through February 22, 2010. (Exhibit T, M.E. 1/28/10.)

Petitioner failed to file a pro per petition, and on May 5, 2010, the PCR court dismissed the proceeding. (Exhibit U, M.E. 5/5/10.)

Petitioner did not seek further review in that proceeding. (Petition, Doc. 1 at 5;

E. STATE HABEAS PROCEEDING

On June 4, 2013, Petitioner filed with the Arizona Supreme Court a Petition for Writ of Habeas Corpus (Exhibit V). The Petition ...


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