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Dennis v. Ryan

United States District Court, D. Arizona

January 3, 2017

Clinton James Dennis, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          Honorable Deborah M. Fine United States Magistrate Judge

         Petitioner 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.

         I. BACKGROUND

         A. Convictions and Sentences

         Petitioner 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. 140-146).[1]

         After 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).[2] 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).

         On 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).

         B. Appeal Proceedings

         On 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).

         C. PCR Proceedings

         1. First PCR Proceedings

         On 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 (Id.).

         On 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.)

         Several 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).

         2. Second PCR Proceedings

         Years 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 ...


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