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Cantrell v. Pogue

United States District Court, D. Arizona

September 9, 2015

Jack Cantrell, Petitioner,
v.
Patrick Pogue, et al., Respondents.

REPORT AND RECOMMENDATION

EILEEN S. WILLETT, Magistrate Judge.

TO THE HONORABLE SUSAN R. BOLTON, UNITED STATES DISTRICT JUDGE:

Pending before the Court is Jack Cantrell's ("Petitioner") amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (the "Amended Petition") (Doc. 6). Respondents have filed their Answer (Doc. 14) and Petitioner has filed a Reply (Doc. 15). The matter is deemed ripe for consideration.

Petitioner raises three grounds for habeas relief in the Amended Petition. Respondents do not argue, and the undersigned does not find, that the Amended Petition is barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214.[1] The undersigned, however, finds that two of the grounds are not cognizable on habeas review. The undersigned further finds that all three grounds are barred from review. It is therefore recommended that the Amended Petition be dismissed with prejudice.

I. BACKGROUND

A. Convictions and Sentencing

On September 13, 2007, the Maricopa County Grand Jury indicted Petitioner on three counts of sexual assault (a class 2 felony) and one count of kidnapping (a class 2 felony) (the "2007 Criminal Case"). (Doc. 14-1 at 2-4). On May 6, 2008, the Maricopa County Grand Jury indicted Petitioner on two counts of sexual assault, one count of kidnapping, and one count of assault (a class 1 misdemeanor) (the "2008 Criminal Case"). ( Id. at 7-8). Both indictments are based on events that took place in 1998 and involved two separate adult female victims.

On June 3, 2009, Petitioner filed a "Motion to Dismiss for Time Bar, " in which Petitioner argued that the 2007 and 2008 Criminal Cases should be dismissed as the State charged Petitioner for sexual assault after the applicable seven-year statute of limitations had expired. ( Id. at 11-40). In its response, the State asserted that the indictments were timely as to the sexual assault and kidnapping charges. ( Id. at 42-47). Regarding the sexual assault counts, the State asserted that the statute of limitations did not begin to run until the defendant's identity was known on June 24, 2004. ( Id. at 44-46). In addition, the seven-year statute of limitations for sexual assault offenses was eliminated by a statutory amendment that became effective on August 9, 2001. Citing to U.S. Supreme Court and Arizona case law holding that an extension of a non-expired statute of limitations is permissible, the State asserted that the amended statute may be retroactively applied to Petitioner's sexual assault offenses. ( Id. ).

Regarding the kidnapping count in the 2008 Criminal Case, the State explained that while the statute of limitations is seven years, Petitioner was timely indicted because the limitations period was tolled until June 24, 2004 (the date Petitioner was identified as the perpetrator). ( Id. at 46). The State conceded that the misdemeanor assault charge should be dismissed. ( Id. at 47).

The trial court denied Petitioner's Motion to Dismiss as to the sexual assault and kidnapping charges, explaining that "[Petitioner's] identity was not known until 2004. The statute of limitations had not expired in 2001 when the statutory amendment removing the statute of limitations from class 2 felonies, including Sexual Assault took effect." ( Id. at 50). The trial court granted the Motion to Dismiss as to the misdemeanor count of assault. ( Id. at 51). Petitioner filed a petition for special action regarding the trial court's ruling in the Arizona Court of Appeals, which the court dismissed on July 9, 2009. ( Id. at 59).

On January 15, 2010, Petitioner entered into plea agreements for both cases. Regarding the 2007 Criminal Case, Petitioner agreed to plead guilty to Amended Count 1 (amended to attempted sexual assault, a class 3 felony). ( Id. at 62-64). As to the 2008 Criminal Case, Petitioner agreed to plead guilty to Amended Counts 1 and 2 (amended to attempted sexual assaule). ( Id. at 66-69). The trial court held a change of plea hearing and accepted Petitioner's guilty pleas. ( Id. at 71-72, 74-76). On March 3, 2010, the trial court sentenced Petitioner in both criminal cases. The court sentenced Petitioner to lifetime probation for attempted sexual assault on Amended Count 1 in the 2007 Criminal Case. ( Id. at 78-81). In the 2008 Criminal Case, the court sentenced Petitioner to lifetime probation for attempted sexual assault on Amended Count 1 and to 8.75 years for attempted sexual assault on Amended Count 2. ( Id. 83-87).

B. Post-Conviction Relief

After sentencing, Petitioner submitted a notice of post-conviction relief ("PCR"), [2] which is filed-stamped April 29, 2010. ( Id. at 99-101). Petitioner filed a pro se PCR petition on December 1, 2010. ( Id. at 103-26). Petitioner argued that his convictions for attempted sexual assault should be "dismissed for time bar" as the 2001 statutory amendment that eliminated the statute of limitations for sexual assault did not apply to attempted sexual assault. ( Id. at 111-14, 140-43). The trial court dismissed the PCR proceeding on August 1, 2011, finding that the claims are precluded because they were previously raised and decided on the merits. ( Id. at 145). The trial court further held that (i) Petitioner waived any challenges to non-jurisdictional defects in the trial court proceeding by pleading guilty and (ii) the claims are meritless. ( Id. at 145-46). Petitioner petitioned the Arizona Court of Appeals for review, which denied review on April 5, 2013. ( Id. at 173). The Arizona Supreme Court denied review on August 20, 2013. ( Id. at 223).

On July 7, 2014, Petitioner sought federal habeas relief by filing a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) (the "Original Petition"). The Court dismissed the Original Petition with leave to amend as Petitioner failed to name proper Respondents. (Doc. 4 at 1-2). Petitioner filed the Amended ...


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