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Sutton v. Ryan

United States District Court, D. Arizona

February 13, 2018

Richard Neal Sutton, Petitioner
v.
Charles L. Ryan, et al., Respondents.

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE

         I. MATTER UNDER CONSIDERATION

         Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 9, 2017 (Doc. 1). On November 8, 2017 Respondents filed their Limited Answer (Doc. 9). Petitioner filed a Reply on December 12, 2017 (Doc. 11).

         The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL BACKGROUND

         The Presentence Investigation provided the following factual background:[1]

On July 24, 2007, Jewish Family Services conducted an intake evaluation for [the victim] to receive counseling through their agency. During the evaluation, they received information regarding inappropriate behavior by the defendant, who was her stepfather. He had been sleeping in her bed every night for two years. Child Protective Services and the police were notified. An investigation was conducted, revealing that the defendant had committed sexual acts against his stepdaughter, [the victim]. The abuse occurred between March 14, 2003 and July 1, 2007. When it began, [the victim] was eleven years old and the defendant was thirty-eight years old. The defendant had told [the victim]he would find her if he was ever arrested because she told someone about his actions, even if he was only in jail for one week. He also threatened to hurt [the victim] and her mother or hospitalize [the victim's] mother for mental health issues if she did not do what he asked of her.
* * *
The defendant was interviewed via telephone four times between December 11, 2007 and December 20, 2007. He told the detective that [the victim] wanted to have a sexual relationship with him. He was angry with [the victim] for pursuing him so aggressively. She had kissed him, asked him to have sex with her, grabbed his penis, put his hand on her vagina, told him that her mother did not deserve him, got into the shower with him when he was already in there, and got angry when he talked about other women. Initially, he yelled at her to stop every time she approached him and attempted to push her away by scaring her and talking about having sex with other women. Later, he gave in to her demands. He took off her bra only when she asked him to unbutton it. He allowed her to watch a pornographic movie only after she insisted and grabbed the remote control from him. He was only trying to make her happy and eventually, he began to fall in love with her. He simulated having sex with her by rubbing against her, looked up pornographic images on the computer with her, and allowed her to rub his penis. He did not start any of these acts, she did.

(Exhibit I, Present. Investig. at 1-3.) (Exhibits to the Answer, Doc. 9, are referenced herein as “Exhibit ___.”) Subsequently, Petitioner sent a text message to the victim's mother indicating an intent to kill himself. Police responded, Petitioner refused to exit his apartment, and discharged a firearm. He eventually was convinced to unload the gun, exited the residence, and was arrested. (Id. at 3.)

         B. PROCEEDINGS AT TRIAL

         On December 31, 2007, Petitioner was indicted in Maricopa County Superior Court on 15 charges, including sexual conduct with a minor, molestation, attempted molestation, sexual abuse, furnishing obscene materials to a minor, aggravated assault, and sexual abuse. (Exhibit A, Indictment.)

         On March 20, 2008, Petitioner appeared with counsel for a settlement conference. The prosecution was offering a plea agreement that included a stipulation to a 35 year sentence, with the opportunity for early release. (Exhibit S, R.T. 3/20/8.) No resolution was reached.

         On March 27, 2008, counsel filed a Motion for Full Rule 11 Evaluation (Exhibit B) Evaluators were appointed (Exhibit C, M.E. 4/18/8), but rendered opposing opinions (Exhibit D, M.E. 5/8/8). Accordingly, a third evaluator was appointed. (Id.) Petitioner was eventually found incompetent to stand trial, and was ordered to undergo restorative treatment. (Exhibit E, M.E. 6/26/8.) Ten weeks later, on September 4, 2008, the court found that Petitioner had been restored to competency, and ordered the case to proceed. (Exhibit F, M.E. 9/4/8.)

         On February 3, 2009, Petitioner entered into a written Plea Agreement (Exhibit G), agreeing to plead guilty to one charge of sexual conduct with a minor, and two amended charges of attempted molestation of a child. In exchange, the parties agreed to a stipulated sentence of 20-27 years on the sexual conduct charge, and lifetime probation on the other charges. On February 9, 2009, Petitioner entered his plea of guilty. (Exhibit H, M.E. 2/9/09.) The following exchange occurred at the change of plea:

THE COURT: Have you used any alcohol or illegal drugs in the last 24 hours?
THE DEFENDANT: No.
THE COURT: Do you take any medicine that might affect your ability to understand what's happening here today?
THE DEFENDANT: No.
THE COURT: Do you need any medicine in order to understand what's happening here today that you are not taking?
THE DEFENDANT: No.
* * *
THE COURT: Did you read the plea agreement, or have it read to you, word for word before you signed it?
THE DEFENDANT: Yes.
THE COURT: Did your lawyer explain it to you?
THE DEFENDANT: Yes.
THE COURT: Did you understand that conversation or conversations with your lawyer?
THE DEFENDANT: Yes.
THE COURT: Have you had enough time with your lawyer so that you have enough information to make a good decision about your case?
THE DEFENDANT: Yes.
THE COURT: And has your lawyer answered any questions you might have had about the case?
THE DEFENDANT: Yes.
THE COURT: Mr. Souccar, do you have any information that might suggest your client is not competent to enter a plea today?
MR. SOUCCAR [defense counsel]: No, Your Honor. And, just for the record, Mr. Sutton did go through the Rule 11 process. He was found originally not competent by numerous doctors. But was placed in the restoration program and was found to be competent. So I believe at this point he is competent to stand trial.

(Exhibit T, R.T. 2/9/9 at 3-4.)

         On April 10, 2009, the court sentenced Petitioner to 20 years on the sexual conduct charge (the lower end of the stipulated range), and lifetime probation on the remaining two charges. (Exhibit J, Sentence, 4/10/9; Exhibit U, R.T. 4/10/9.)

         C. PROCEEDINGS ON DIRECT APPEAL

         Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.)

         Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).

         D. PROCEEDINGS ON POST-CONVICTION RELIEF

         First PCR Proceeding - Over five years later, on April 23, 2014, Petitioner filed a Notice of Post-Conviction Relief (Exhibit K). The notice was dated April 17, 2014. (Id. at 3.)

         On June 23, 2014, the PCR court summarily dismissed the proceeding, finding that the notice was untimely under Arizona Rule of Criminal Procedure 32.4, and that the facts alleged did not assert a claim exempted from the time limits of Rule 32.4. (Exhibit L, Order 6/23/14.)

         Petitioner did not seek review by the Arizona Court of Appeals of the dismissal. (Petition, Doc. 1 at 5.)

         Second PCR Proceeding

Over two years later, on November 4, 2016, Petitioner filed a second Notice of Post-Conviction Relief (Exhibit M). The notice was ...


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