United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Z. BOYLE, Magistrate Judge.
HONORABLE PAUL G. ROSENBLATT, SENIOR UNITED STATES DISTRICT
Roger Lane Supinger has filed a pro se Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. Â§ 2254. (Doc. 1.)
SUMMARY OF CONCLUSION
post-conviction proceedings concluded on May 18, 1999, and
his statute of limitations to file this Petition expired on
May 18, 2000. Petitioner's second, successive PCR
petition does not merit additional tolling. The instant
Petition was filed on July 1, 2015. No equitable tolling is
merited because Petitioner does not attempt to justify his
delay, except to claim that he developed a new legal theory
regarding double jeopardy. No evidence was presented to merit
an actual innocence exception under Schlup v. Delo,
513 U.S. 298 (1995). For the reasons that follow, the Court
concludes that Petitioner's claim is untimely. Therefore,
the Court will recommend that the Petition be denied and
dismissed with prejudice.
was indicted by the State of Arizona on October 19, 1995.
(Doc. 15-1, Ex. E, at 30.) On May 22, 1996, the trial court
sentenced Petitioner. (Doc. 15-2, Ex. B, at 14.)
Arizona Court of Appeals found the following facts as
At the relevant time, C.C. ("the victim") was nine
years old and living with her mother ("L.C.") and
defendant, who were unmarried companions. After the victim
reported that defendant had sexually abused her, she was
questioned by detectives from the Maricopa County
Sheriff's Department. Following that interview, the
detectives interviewed defendant and L.C. The detectives then
informed the victim about statements defendant made during
his interview, which caused the victim to become distraught
and recant her allegations. After regaining her composure,
she told the detectives that her recantation was untrue.
Several days later, the victim repeated her original
allegations to Margaret Lothian, a social worker, but
repeatedly qualified her account by stating: "This is
what I think happened, but I don't believe it." She
also related that L.C. had told her that she did not know
"whether to believe her [the victim] or not."
Conforming with her original allegations, the victim
testified at trial that, after defendant had her undress, he
penetrated her vagina digitally and then with his penis. The
victim said that defendant had told her to keep the matter
secret. A medical examination indicated damage to the
victim's hymen consistent with the described penetration.
The jury found defendant guilty of sexual conduct with a
minor under age 15 and of child molestation, both class 2
felonies and dangerous crimes against children. The trial
judge imposed aggravated prison sentences of 23 years and 20
years, respectively. Over the state's objection, the
judge ordered that the sentences be served concurrently.
State v. Supinger, 190 Ariz. 326, 327, 947 P.2d 900,
901 (Ct. App. 1997).
Appeal and Cross Appeal
20, 1996, Petitioner filed a notice of appeal. (Doc. 15-1,
Ex. C, at 20.) On June 18, 1996, the State filed a notice of
cross appeal regarding the concurrent sentence imposed upon
Petitioner. (Doc. 15-1, Ex. D, at 23.) On July 29, 1997, the
Arizona Court of Appeals affirmed Petitioner's
convictions, but found "the trial court erred by