United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
Clinton James Dennis (“Petitioner” or
“Dennis”), is currently incarcerated in the in
the Arizona State Prison Complex in Florence, Arizona,
serving an aggregate imprisonment sentence of over 190 years
arising from jury trial convictions in two Maricopa County
Superior Court cases which were consolidated for sentencing,
CR 2001-006104 and CR 2001-005754. Petitioner filed a pro
se Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (“Petition”) (Doc. 1) on
September 15, 2015. The Court required an answer to the
Petition (Doc. 5). Respondents filed a Limited Answer (Doc.
15) asserting that the Petition should be dismissed.
Petitioner did not file a reply. For the reasons below,
undersigned recommends that the Petition be denied as
untimely because it was filed years after AEDPA's 1-year
statute of limitations expired.
Convictions and Sentences
was convicted by jury trials, in Maricopa County Superior
Court cases CR 2001-006104 and CR 2001-005754, of seven
counts of sexual conduct with a minor, eight counts of
molestation of a child, two counts of kidnapping, and one
count each of sexual abuse, possession of dangerous drugs,
and possession of drug paraphernalia. (Exhibits M, N, Q, R;
Doc. 15-1 at p. 65-67, p. 78-110, p. 136-139, p.
the jury trial in the drug/paraphernalia case CR 2001-005754,
but before the jury trial in CR 2001-006104 regarding the
molestation/kidnaping/sexual abuse charges, pursuant to state
procedural rules, Petitioner had a settlement conference with
an Arizona Superior Court judge who was not presiding in
either of the cases (Exhibit QQ; Doc. 15-3 at p.
23-36). Petitioner's counsel and a close
friend of Petitioner were present in addition to the
prosecutor (Doc. 15-3 at p. 23-25). The settlement judge
cautioned Petitioner that in his experience as a judge and as
a lawyer, his best guess was that Petitioner would not win
the molestation/kidnaping/sexual abuse trial on all of the
counts charged; the settlement judge further cautioned that
if Petitioner lost on just one count it would mean a 13 to 27
year sentence and if on just two of the many counts, it would
mean the equivalent of a life sentence (Doc. 15-3 at p. 30).
The settlement judge pointed out that the plea offer had
improved, would likely not get any better, and would give
Petitioner a chance to get out of prison in his lifetime
(Doc. 15-3 at p. 30-31). Petitioner told the settlement judge
and the others present:
[I]f I go with this deal, I want you to know I am going
against my own conscience because I'm not guilty of what
they're accusing me of, and they're lying.
(Doc. 15-3 at p. 31). The settlement conference concluded
with Petitioner stating that he would discuss the situation
with his wife and then make a decision on the plea agreement
offered by the following week (Doc. 15-3 at p. 35).
Petitioner chose a jury trial over the plea offer (Exhibits
M, N; Doc. 15-1 at p. 65-67, p. 78-110).
February 22, 2002, Petitioner was sentenced on both cases to
an aggregate of over 190 years of imprisonment after taking
into account concurrently ordered sentences (Doc. 1 at p. 2;
Exhibits O, S, T, GGG at p. 23-25; Doc. 15-1 at p. 111-124,
p. 147-148, p. 149-153, Doc. 15-9 at p. 260-263). The drug
case sentences were all ordered to be concurrently served
with the longer sentences in the molestation/kidnaping/sexual
abuse case (Exhibits T, GGG; Doc. 15-1 at p. 151-152, Doc.
15-9 at p. 260-263).
March 1, 2002, Petitioner filed a timely notice of appeal
(Ex. U; Doc. 15-1 at p. 154-156). The opening brief asserted
two claims: (1) that the trial court in the
molestation/kidnaping/sexual abuse case abused its discretion
by admitting prior consistent hearsay statements victims had
made to their parents, police officers, and others; and (2)
that the trial court erred in the drug/paraphernalia case by
failing to sua sponte strike or rehabilitate prospective
jurors who revealed bias during voir dire (Exhibit V; Doc.
15-1 at p. 157-212). The State filed a response, and
Petitioner filed a reply (Exhibits W, X; Doc. 15-2 at p.
2-89, p. 90-125). On June 26, 2003, the Arizona Court of
Appeals affirmed the convictions in a memorandum decision
(Exhibit Y; Doc. 15-2 at p. 126-145). Petitioner did not seek
review in the Arizona Supreme Court (Exhibit Z; Doc. 15-2 at
p. 146-148; Doc. 1 at p. 3). The mandate issued on September
15, 2003 (Exhibit Z; Doc. 15-2 at p. 146-148).
First PCR Proceedings
October 15, 2003, Petitioner filed a notice of
post-conviction relief (Ex. AA; Doc. 15-2 at p. 149-153). On
October 24, 2003, the court appointed the Maricopa County
Public Defender's Office to represent Petitioner, and set
a deadline for filing a PCR petition (Ex. BB; Doc. 15-2 at p.
154-156). On January 6, 2004, the Maricopa County Public
Defender's Office filed a motion to withdraw as counsel,
citing a conflict (Ex. CC; Doc. 15-2 at p. 157-161). The
court granted the motion and appointed new counsel (Ex. DD;
Doc. 15-2 at p. 162-163). Counsel for Petitioner subsequently
filed a notice of completion of post-conviction review,
stating that after reviewing the record, she could not find
colorable claims to raise to the court (Ex. EE; Doc. 15-2 at
p. 164-166). The court ordered that counsel remain on the
matter in an advisory capacity to Petitioner through a final
decision on the PCR proceedings and granted Petitioner an
extension of time to file a pro se PCR petition
April 30, 2004, Petitioner filed a pro se PCR
petition (Ex. FF; Doc. 15-2 at p. -167-180). On August 24,
2004, the State filed a response (Exhibit GG; Doc. 15-2 at p.
181-211). On September 27, 2004, the PCR court dismissed the
petition from the sexual misconduct convictions and dismissed
the PCR petition in the drug case, as it related to any
sentencing issue, and indicated that the trial judge in the
drug case would address issues arising from that trial
(Exhibit HH; Doc. 15-2 at p. 212-214). On September 28, 2004,
the judge who had presided over the trial in the drug case
issued an order stating the court had considered the PCR
Petition, and the State's response relating to that case,
and found “no claim presented entitling Petitioner to
relief” (Ex. II; Doc. 15-3 at p. 2-3). The court, thus,
dismissed the petition (Id.)
years later, on July 31, 2007, the court received a letter
from Petitioner stating:
Is there a reason that I was not notified of your ruling of
the rule 32 I filed? It has been over two years. What must I
do to receive an answer from the court.
(Ex. JJ; Doc. 15-3 at p. 4-5). On July 31, 2007, the court
responded to the postmarked letter of July 13, 2007, from
Petitioner; the court stated that it had sent the pertinent
orders to Petitioner's counsel and could not address why
Petitioner did not receive notice of the ruling from his
attorney (Ex. KK; Doc. 15-3 at p. 6-7). On July 31, 2007, the
trial court forwarded the minute entries from September 27
and 27, 2004, the PCR rulings, as well as the July 31, 2007,
minute entry directly to Petitioner (Id.).
Petitioner did not file a petition for review of the
court's denial of his PCR petition (Doc 1 at p. 5).
Second PCR Proceedings
later, on January 22, 2013, Petitioner filed a second PCR
petition (Exhibits LL, MM; Doc. 15-3 at p. 8-12, p. 13-36).
Petitioner claimed that the United States Supreme Court's
decisions in Missouri v. Frye, 132 S.Ct. 1399
(2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012)
regarding ineffective assistance of counsel for advice in
plea negotiations, were changes in the law permitting him to