United States District Court, D. Arizona
JAMES A. TEILBORG, District Judge.
Petitioner has filed a motion to reopen this case (Doc. 26) which includes his objections to the Report and Recommendation (Doc. 19) ("R&R"). Consistent with this Court's order of September 22, 2014 (Doc. 25), this Court will re-open this case and review the portions of the R&R to which there is an objection de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ).
The R&R recounted the factual background of this case as follows:
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:
Between approximately midnight and 12:30 a.m. on November 5, 2007, ten images of child pornography were downloaded to a memory card in Hartman's cell phone. The next day, Hartman lost the phone. Three days later, a third party turned the phone in to the police, indicating it contained child pornography. The police determined that the phone belonged to Hartman. The State's forensic expert found approximately thirty images of child pornography on the phone in allocated (not deleted) space.
The ten images downloaded on November 5 formed the bases for counts one through ten. The same expert also examined Hartman's home computer and found multiple images of child pornography in unallocated (deleted) space. One image formed the basis of count eleven.
(Exhibit J, Mem. Dec. at 2.).
R&R at 1-2.
Petitioner objects to this recitation of the facts by alleging that there are additional relevant facts that the Arizona Court of Appeals failed to discuss. Doc. 26 at 1-3. Specifically, Petitioner alleges that the man who found the phone, "contacted the Petitioner [and] requested money to get his phone back [.] If he did not comply the man stated that he would find some stuff on his phone that would put him in a lot of trouble." Id. at 1.
The R&R recounted the procedural history of this case as follows:
Petitioner was indicted in the Mohave County Superior Court on eleven counts of Sexual Exploitation of a Minor. (Exhibit B.) On February 16, 2010, Petitioner proceeded to trial with counsel. (Exhibit C, R.T. 2/16/10.) The jury convicted on all counts, and found the victims in each image were under the age of fifteen. Petitioner was sentenced to mitigated, consecutive, ten year sentences on each count, for an effective sentence of 110 years....
Petitioner filed a direct appeal. Counsel was appointed, and filed an Opening Brief (Exhibit G) raising claims of: (1) insufficient evidence of knowing possession as to the image on the computer; (2) insufficient evidence of knowing possession of the images on the cell phone; (3) double jeopardy violations; and (4) a grossly disproportionate sentence under the Eighth Amendment. The Arizona Court of Appeals rejected each of Petitioner's claims, and affirmed his convictions ...