United States District Court, D. Arizona
DOUGLAS L. RAYES, District Judge.
Pending before the Court is Petitioner's petition for writ of habeas corpus, (Doc. 1), United States Magistrate Judge Eileen S. Willett's Report and Recommendation ("R&R"), (Doc.13), and Petitioner's Objection to the Report and Recommendation, (Doc. 14). The Magistrate Judge recommended that the Court deny the petition and that it be dismissed with prejudice because it is barred by the Anti-Terrorism and Effective Death Penalty Act's ("AEDPA") statute of limitations. Additionally, the Magistrate Judge found that Grounds One, Two, Three and Five, as well as a portion of Ground Six are barred under the Procedural Default Doctrine. Finally, the Magistrate Judge found that the remaining grounds, Ground Four and a portion of Ground Six, should be denied on the merits. Petitioner objected to all of the Magistrate Judge's findings. (Doc. 14.)
I. Factual Background
The R&R summarized the factual background, (Doc. 13 at 2-4), and the Petitioner did not object to this history, (Doc. 14). The Court adopts the R&R's history.
Specifically, in 2008 Petitioner was convicted of the following crimes: (i) burglary in the second degree (a class 3 felony); (ii) kidnapping (a class 2 felony); (iii) aggravated assault (a class 4 felony); and (iv) sexual assault (a class 2 felony). (Doc. 10-8 at 65-66.) The trial court imposed sentences resulting in 30.5 years, which Petitioner is serving at the Arizona State Prison Complex in Florence, Arizona. (Doc. 13 at 2.) The R&R recounted a summary of the facts underlying Petitioner's convictions:
In the early morning hours on June 18, 2006, an 88 year old woman named Sally called and asked her daughter, Patricia, to come over to her house. (Doc. 10-3 at 49). Sally was "very upset" and was "having trouble talking." ( Id. ). When Patricia arrived at Sally's house, she noticed that the glass on the kitchen door had been broken and saw a rock inside the door that had been used to smash the glass. ( Id. at 53-54, 57). Sally was still very upset, was shaking, and was holding her left elbow. ( Id. at 57). Patricia saw blood on the collar area of Sally's pajamas. ( Id. at 60). Patricia then searched the house for an intruder, while Sally followed behind. ( Id. at 59-60).
When Patricia completed the search, she contacted the police. ( Id. at 65-66). While on the phone, Patricia saw blood on the back of Sally's pajamas that she did not see before as Sally had been following her throughout the house. ( Id. at 66). Seeing the blood, Patricia exclaimed to the police dispatcher "[O]h, my God, there's blood all over the back of her pajamas." ( Id. at 69-70). Sally then turned to Patricia and yelled "I've been raped." ( Id. at 70).
Paramedics arrived and treated Sally, who sustained a fracture of the olecranon (the bone at the tip of the elbow where the joint comes together). ( Id. at 41-42). Sally was also examined by registered nurse Shawn Bonner. (Doc. 10-4 at 25, 31-33). Nurse Bonner noted numerous contusions and abrasions on Sally's chin, left arm, left and right wrists, legs, and one of her breasts. ( Id. at 34-46). In addition, Nurse Bonner performed a genital and anal exam and found multiple injuries. ( Id. at 46-64).
Nurse Bonner's examination included swabbing multiple areas of Sally's body for DNA. ( Id. at 45, 66-67, 75, 81-83, 100). A forensic scientist at the City of Phoenix Police Department determined that the DNA profile from Sally's right breast was a hundred percent match with Petitioner's known DNA. (Doc. 10-5 at 99, 149). The scientist also determined that the DNA profile taken from Sally's left fingernail could not have come from anyone other than Petitioner. (Doc. 10-5 at 154). Moreover, Petitioner could not be excluded from the DNA mixture taken from Sally's left thigh. (Doc. 10-5 at 155-56).
(Doc. 13 at 2-3)
The R&R recounted the procedural history:
Following his 2008 conviction and sentence, Petitioner appealed to the Arizona Court of Appeals. In its October 1, 2009 decision, the Arizona Court of Appeals affirmed. (Doc. 10-8 at 214-28). On March 16, 2010, the Arizona Supreme Court denied review of Petitioner's appeal. (Doc. 10-9 at 3).
On August 10, 2010, Petitioner's appellate counsel filed an untimely notice of post-conviction relief ("PCR"). (Doc. 10-9 at 5-8). Counsel claimed that the untimely PCR filing was due to "ineffective assistance of appellate counsel." ( Id. at 6-7). The Superior Court allowed the untimely PCR filing to proceed, but stated that the "allowance does not constitute any expression of opinion that defendant has met the requirements to file an untimely petition, or on the merits of any such claim, or that any claims raised in the petition are not procedurally precluded." ( Id. at 11-12). The court also appointed the Office of the Legal Advocate to represent Petitioner in his PCR matter. ( Id. at 12).
After PCR review, Petitioner's PCR counsel did not find any claims for relief to raise in PCR proceedings. ( Id. at 16-17). On February 11, 2011, the Superior Court granted Petitioner 45 days in which to file a pro per PCR petition. ( Id. at 20). After multiple deadline extensions, on July 5, 2011, Petitioner filed a PCR petition that raised five claims. ( Id. at 25-95). On November 14, 2011, the Superior Court denied his petition, finding that four of the five issues are "all matters that could have been raised on direct appeal under Rule 31, Arizona Rules of Criminal Procedure, and/or a post-trial motion under Rule 24, Arizona Rules of Criminal Procedure" and are therefore precluded from post-conviction relief under Rule 32, Arizona Rules of Criminal ...