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Thompson v. Ryan

United States District Court, D. Arizona

September 9, 2016

Richard Thompson, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          Richard Thompson, Petitioner, Pro se.

          Charles L. Ryan, Respondent, represented by Alice Mae Jones, Office of the Attorney General.

          Attorney General of the State of Arizona, Respondent, represented by Alice Mae Jones, Office of the Attorney General.

          REPORT AND RECOMMENDATION

          MICHELLE H. BURNS, Magistrate Judge.

         Petitioner Richard Thompson, an inmate currently incarcerated in the Arizona State Prison, in Tucson, Arizona, has filed a pro se Petition for a Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. §2254 (Doc. 1). Respondents filed an Answer (Doc. 11), and Petitioner has not filed a Reply. Petitioner raises four claims in his Petition that Respondents assert are untimely, procedurally defaulted without excuse, and lack merit.

         BACKGROUND

         On December 2, 1993, Petitioner was charged by an Arizona Grand Jury with 10 counts of aggravated assault, one count of unlawful flight, one count of theft of property, and one count of resisting arrest. (Doc. 11, Exh. A[1].) The charges stemmed from Petitioner stealing a cab at gun point, refusing to stop the cab after police initiated a traffic stop, and pointing a gun and shooting at multiple police officers after he was forced to pull over. (Exh. Y at 11-12.) Prior to trial the trial court granted the state's motion to dismiss two of the aggravated assault charges and the resisting arrest charge. (Exh. FFFF at 14.) Petitioner went to trial on the remaining charges, and on March 3, 1995, a jury found him guilty of theft, unlawful flight and aggravated assault, and not guilty by reason of insanity on the remaining aggravated assault charges. (Exh. LLLL at 945-49.) A jury trial was then held on Petitioner's prior convictions, and the jury found that Petitioner had six prior felony convictions. (Exh. NNNN at 996-99.) On August 28, 1995, the trial court sentenced Petitioner to aggravated, consecutive sentences totaling 36 years' imprisonment. (Exhs. Z, KK & QQQQ at 7-8.) Petitioner was initially sent to the Arizona State Hospital by virtue of the insanity verdicts, and that his sentence on the other counts was to commence upon his release from the state hospital. (Exh. AA at 2.)

         On March 4, 1996, the Arizona State Hospital found that Petitioner was no longer evidencing a mental disorder, was considered "clinically and psychiatrically stabilized, " and recommended that Petitioner be returned to the Department of Corrections. (Exh. HH, attached letter at 2.) On April 5, 1996, Petitioner filed a request to be released from the Arizona State Hospital. (Exh. II.) A telephonic hearing took place on April 24, 1996, and because the State and Petitioner were in agreement that he should be released from the hospital, the court ordered him immediately transferred to the Department of Corrections to begin serving his sentence. (Exhs. JJ; SSSS at 12-14.)

         On September 8, 1995, Petitioner filed a timely notice of appeal. (Exh. RR.) Petitioner moved to represent himself on appeal, but that request was denied, and Petitioner's appointed counsel then filed an opening brief raising one issue on appeal - that the trial court erred in imposing enhanced sentences for Petitioner's Colorado convictions. (Exhs. TT, WW at 5.) On September 26, 1996, the Arizona Court of Appeals issued an opinion denying relief and affirming Petitioner's convictions. (Exh. BBB.) Petitioner did not seek review in the Arizona Supreme Court. (Exh. CCC.)

         Over 2-years later, in December, 1998, Petitioner filed a motion in the state court requesting free transcripts. (Exh. GGG.) The trial court denied the motion, noting that "the record was prepared and all transcripts previously provided for defendant's appeal." (Id.) Petitioner appealed the trial court's order and, on April 6, 1999, the Arizona Court of Appeals dismissed the appeal, as the trial court's order denying a motion for transcripts was "non-appealable." (Exh. MMM.)

         Thereafter, Petitioner filed various other documents with the trial court that ultimately have no bearing on the issues raised in the instant matter: in 2001, Petitioner filed two notices of "Petition for Writ of Habeas Corpus" that stated no grounds for relief; in April 2004, Petitioner filed a "Motion for Appointment of Counsel to Assist and Advise Defendant;" in May 2004, Petitioner filed a "Notice of Appeal" and a "Motion for Appointment of Counsel on Appeal;" in August 2005 and January 2009, Petitioner mailed letters to the trial judge; in October 2011 Petitioner sent another letter to the trial judge; in May 2012, Petitioner filed a "Pleading for Civil Rights or Conditions of Confinement"; in January 2013, Petitioner filed another petition for writ of habeas corpus; in April 2015, Petitioner filed a motion requesting that his time in prison be transferred to other inmates; in August, 2015, Petitioner sent a letter to the trial court requesting that he be placed on death row; in September 2015, Petitioner filed a motion to be moved to death row and motions for speedy trial; and in October 2015, Petitioner filed a motion to be transferred to Yavapai County. The court either denied the requests or took no action. (Exhs. NNN, TTTT at 2; OOO, PPP, QQQ, RRR.)

         On February 28, 2011, the trial court issued a minute entry stating that it had received a "Notice of Rule 32" with several attachments from Petitioner on February 24, 2011. (Exh. SSS.) The minutes reflected that the document had not been "properly filed" with the court, a copy had not been provided to the State, and the document "did not meet the requirements of a Notice of Post-Conviction Relief, pursuant to Rule 32, and is clearly untimely." (Id.) The trial court apparently did not file the actual notice, as it does not appear in the official state record. (See Exh. TTTT at 2; Doc. 11 at 10.) Petitioner filed another notice of post-conviction relief in March 2011, which the trial court also dismissed as untimely. (Exhs. TTT, UUU.)

         Petitioner filed his habeas petition on September 12, 2015. (Doc. 1.) In Ground One of his habeas petition he claims he "was sentenced to death by lethal injection." (Id. at 6.) Petitioner states, however, that he is "not challenging [his] sentencing, " but claims that he was not afforded counsel, "was not present in court room for trial, and "was not afforded opportunity to cross examine witnesses or face [his] accusers, and that his due process rights were violated." (Id.) In Ground Two, Petitioner asserts that he was "not afforded trial transcripts or appointment of counsel." (Id. at 7.) In Ground Three, Petitioner claims he was "not afforded access to law library." (Id. at 8.) In Ground Four, Petitioner claims that he was "not allowed to call defense witnesses." (Id. at 9.) Petitioner requests as relief that he be moved "to death row for lethal injection." (Id. at 11.) Petitioner does not provide any further support for his claims other than his assertions.

         Respondents assert that Petitioner's habeas petition is untimely by 17 years, 10 months, and 12 days, and ...


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