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Supinger v. Ryan

United States District Court, D. Arizona

April 21, 2016

Roger Lane Supinger, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          JOHN Z. BOYLE, Magistrate Judge.

         TO THE HONORABLE PAUL G. ROSENBLATT, SENIOR UNITED STATES DISTRICT JUDGE:

         Petitioner Roger Lane Supinger has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. SUMMARY OF CONCLUSION

         Petitioner's 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.

         II. BACKGROUND

         Petitioner 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.)

         a. Facts

         The Arizona Court of Appeals found the following facts as true:[1]

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).

         b. Appeal and Cross Appeal

         On May 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 ...


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