United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, District Judge.
Pending before the court is a petition for writ of habeas corpus filed on January 15, 2015, by Michael Gerard Schottenbauer, an inmate confined in the Arizona State Prison Complex in Buckeye, Arizona. (Doc. 1)
Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order dismissing the petition. It is time-barred.
Summary of the Case
On May 19, 1995, Schottenbauer was convicted after a jury trial of "two counts of child molestation and one count of sexual conduct with a minor under the age of 14." (Doc. 1, p. 1); (Doc. 12-2, p. 27) On June 20, 1995, the trial court sentenced Schottenbauer to "consecutive prison terms totaling 39 years." (Doc. 12-2, p. 27); see also (Doc. 12-1, pp. 2-9)
On direct appeal, Schottenbauer challenged the trial court's denial of his motion to suppress his videotaped confession. (Doc. 12-2, p. 28) He argued his confession was coerced because he was encouraged to confess by his sister, Elizabeth Schottenbauer. (Doc. 12-1, pp. 17-21) Earlier that day, Elizabeth had spoken with detectives who told her that if Schottenbauer confessed, he would get intensive counseling or intensive probation. Id. The Arizona Court of Appeals affirmed Schottenbauer's convictions and sentences on June 11, 1996. (Doc. 12-2, p. 27) His motion for reconsideration was denied on July 2, 1996. (Doc. 12-2, p. 42) The Arizona Supreme Court denied Schottenbauer's petition for review on December 23, 1996. (Doc. 12-3, p. 24) It does not appear that Schottenbauer filed a petition for review with the U.S. Supreme Court.
On February 11, 1997, Schottenbauer filed his first notice of post-conviction relief. (Doc. 12-3, p. 26) The trial court summarily dismissed the petition on June 26, 1997. (Doc. 12-4, p. 42) Schottenbauer appealed raising the claim that his sentence was cruel and unusual punishment. (Doc. 12-4, pp. 44-47) He also filed an addendum pro se in which he argued three of the state's witnesses were mentally unstable. (Doc. 12-4, pp. 12-28) The Arizona Court of Appeals granted review but denied relief on April 30, 1998. (Doc. 12-5, p. 16) The court noted that Schottenbauer's claims against the state's witnesses were based on information he had well before trial. (Doc. 12-5, p. 17)
More than eleven years later, on February 18, 2010, Schottenbauer filed a second notice of post-conviction relief. (Doc. 12-5, p. 30) He argued he uncovered "newly discovered facts" in case reports and victim interview transcripts that would have constituted reasonable doubt had they been raised at trial. (Doc. 12-5, p. 31) He further argued he had "new evidence" from his son, Christopher, that the victim lied so she could live with her mother and that Elizabeth Schottenbauer colluded with the detectives to coerce the defendant's confession. (Doc. 12-5, p. 31) The trial court summarily dismissed the notice on March 5, 2010 because Schottenbauer "raise[d] no new issue, legal or factual, that could not have been addressed through his first Petition for Post-Conviction Relief." (Doc. 12-5, p. 30) The Arizona Court of Appeals summarily dismissed his petition for review on September 7, 2010 for failing to file a petition in compliance with the rules. (Doc. 12-5, pp. 36, 38)
On July 2, 2012, Schottenbauer filed a third notice of post-conviction relief. (Doc. 12-6, p. 20); but see (Doc. 12-7, p. 52) Appointed counsel was unable to find any meritorious issues and asked that Schottenbauer be permitted to file a petition pro se. (Doc. 12-6, p. 25) Schottenbauer filed a petition on October 16, 2012 arguing trial counsel was ineffective for failing to evaluate properly the state's plea offer. (Doc. 12-6, p. 28, 33) On January 18, 2013, the trial court denied the petition ruling that all issues "either should have been raised or were previously raised... and are therefore barred from additional consideration by the rule." (Doc. 12-7, p. 53) On May 30, 2013, the Arizona Court of Appeals granted review but denied relief. (Doc. 12-8, p. 16); State v. Schottenbauer, 2013 WL 2395048, 1 (Ariz.App. 2013). On January 21, 2014, the Arizona Supreme Court denied review. (Doc. 12-9, p. 34)
On January 15, 2015, Schottenbauer filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) His petition consists of four claims, which raise in turn the arguments he made in his direct appeal and his first, second, and third post-conviction relief proceedings. Id. He claims (1) the trial court should have suppressed his involuntary confession, (2) trial counsel was ineffective for (a) failing to call his friends, the Van Dykes, to testify, (b) failing to investigate the backgrounds of the state's witnesses, and (c) failing to investigate and argue the totality of the circumstances surrounding the false allegations and his coerced confession, (3) trial counsel was ineffective for (a) failing to argue that his sister, Elizabeth, was a state actor when she coerced him into confessing, (b) failing to call his friends, the Van Dykes, to testify, and (c) failing to call a brain expert to testify about his motorcycle injury, and (4) trial counsel was ineffective for failing to evaluate properly the state's plea offer. Id.
On April 23, 2015, the respondents filed an answer arguing among other things that the petition is time-barred. (Doc. 12) Schottenbauer filed a reply on July 23, 2015. (Doc. 15) The respondents are correct. The petition is time-barred.
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, however, must be filed within the applicable statute of limitations or it ...