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Lima-Fuentes v. Ryan

United States District Court, D. Arizona

February 29, 2016

Milton Omar Lima-Fuentes, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

MICHELLE H. BURNS, Magistrate Judge.

TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT COURT:

Petitioner Milton Omar Lima-Fuentes, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254 (Doc. 1). Respondents filed an Answer (Doc. 16), but despite having the opportunity to do so, Petitioner has not filed a reply.

BACKGROUND[1]

On December 11, 2008, the State indicated Petitioner in Mohave County Superior Court with: sexual assault, a class 2 felony (count 1) and two counts of sexual conduct with a minor under fifteen years of age, a class 2 felony (counts 2 and 3). (Exh. A.) Petitioner pleaded guilty to count 3 on the condition that the sentencing range would cap at the presumptive of 20 years' imprisonment. (Exh. B at 4, 13.) Petitioner agreed to the following factual basis:

[T]he defendant was in town for a wedding and had been partying throughout the weekend, both drinking and using illegal substances, based on his own admission. On the date and location alleged, after the wedding, everyone was milling about the hotel and mingling.
The defendant pulled the 14-year old victim into the hotel laundry room, he pinned her against the wall, he both fingered her and proceeded to have sex with her. As she asked for him to stop, he said he wasn't going to stop when he was in the middle of it; and the defendant's DNA was ultimately found in the vaginal swabs that were taken of[f] the victim that night.

(Id. at 14.) The trial court found that the plea was knowing, intelligent, and voluntary. (Id.) On August 24, 2009, the court sentenced Petitioner to a mitigated term of 16 years. (Exh. C at 40.)

Petitioner filed a PCR notice, pursuant to Ariz. R. Crim. P. 32, on November 25, 2009. (Exh. D.) The notice did not allege any specific grounds for relief. (Id.) The trial court extended the deadline to file a PCR petition until April 19, 2010. (Exh. E.) On April 15, Petitioner's appointed counsel filed a Rule 32 notice of completion, stating she found no grounds for post-conviction relief. (Exh. F.) She also requested additional time for Petitioner to file a pro se PCR petition, and the superior court extended the deadline to do so until June 3. (Id.; Exh. G.)

Petitioner filed a pro se PCR notice on June 10, 2010, alleging ineffective assistance of counsel and that Petitioner was illegally sentenced under Arizona's statutory scheme and in violation of federal due process. (Exh. H.) Because this was past the filing deadline, the court summarily dismissed it as untimely. (Exh. I.) Petitioner then requested leave to file a delayed PCR petition, and the court extended the deadline to do so until September 2, 2010. (Exh. J.) Petitioner requested another extension on August 27, 2010, which the court denied. (Exhs. K, L.) Petitioner failed to file a PCR petition, and the superior court dismissed the PCR proceedings.

On June 10, 2014, Petitioner filed a new PCR notice, alleging there was cause for a "discretionary sentence reduction." (Exh. N.) The court summarily dismissed the notice as untimely and successive in violation of Ariz. R. Crim. P. 32. (Exh. O.) On July 7, 2014, Petitioner filed a PCR petition, alleging newly discovered "circumstances" that caused him to not have understood the guilty plea. (Exh. P.) On July 17, 2014, the court dismissed the petition as untimely and successive. (Exh. Q.)

Petitioner then filed a "motion to allow a delayed notice of appeal" on August 26, 2014. (Exh. R.) The superior court construed this as a request for Petitioner to file a notice of appeal from his conviction. (Exh. S.) As such, the court rejected the motion because Petitioner waived his right to appeal when pleading guilty. (Id.) Petitioner filed a notice of appeal on May 14, 2015. (Exh. T.) The court of appeals construed this as a petition for review from the denial of the July 7, 2014 PCR petition and summarily dismissed the petition as untimely on May 26, 2015. (Exh. U.)

In his habeas petition, Petitioner raises three grounds for relief. He alleges that his attorney provided ineffective assistance (Ground One), that his due process and equal protection rights were violated (Ground Two), and that the prosecution committed ...


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