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Puentes v. Ryan

United States District Court, D. Arizona

February 14, 2018

Jose Francisco Puentes, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          HON. STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE

         Petitioner Jose Francisco Puentes 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 brings two claims for relief in his timely Petition. He argues the Arizona law that requires him to prove a lack of sexual intent in a child molestation case is unconstitutional. He also asserts his counsel provided ineffective assistance by failing to raise this issue. But Petitioner pleaded guilty and did not bring these claims in post-conviction review proceedings. Petitioner's claims are procedurally defaulted without excuse. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         a. Facts of the Crimes.

         The Presentence Report includes the following summary of the underlying facts of Petitioner's crimes[1]:

In June of 2014, the fourteen year old victim decided she wanted to move in and stay with her grandmother due to some problems at school. Her mother's boyfriend, the defendant, was upset and insisted she come home. He called her and messaged her continuously and the victim's mother, Kathryn Mathewson, became concerned. In September, while living with her grandmother, the victim disclosed several incidents of molestation between herself and the defendant from her age of ten to fourteen. When her mother found out, she moved herself and her other children out of the house and confronted the defendant. He admitted to having sexual intercourse with the victim only one or two times and insinuated that she started it and he “got weak and was unable to resist”. The victim did not want the police involved and asked her mother not to say anything. The defendant continued to text and attempted to contact the victim on social media until May 2015. The defendant became aggressive and confrontational with Kathryn Mathewson and she determined the police needed to be informed and a report was made.
On June 10, 2015, the victim and Kathryn Mathewson were interviewed at the Mesa Family Advocacy Center. The victim told officers she was afraid to speak about the molestation because the defendant had threatened to hurt her and her family if she disclosed anything. . . .
The victim described another incident between her ages of twelve and fourteen when the defendant raped her in the shower. She described that he came into the shower and touched her vagina (count 4) and her breasts (dismissed count 5). . . . Around the same time as this incident, she described a time he assaulted her in her bedroom. She said he came in and took her clothes off and she was scared. He began touching her breasts (dismissed count 8) and her vagina (count 7) and then hit her, pushed her down and would not let her leave. …She said on one occasion, she was in the kitchen and the defendant came in and began to touch her vagina (count 12) and her breasts (dismissed count 13) over her clothing. One of her brothers came into the room and he stopped so she left.
. . .
Kathryn Mathewson agreed to conduct a confrontation call with the defendant. During the call, the defendant confessed to her that he had a sexual relationship with the victim when she was fourteen years old. He stated he had sex with her approximately nine times and that he did it because he thought she wanted it and she was coming on to him. He said he was sorry and that he knew it was wrong.
Later on June 10, 2015, Mesa police officers went to the defendant's home to arrest him for the incident. … During a post-Miranda interview with officers, the defendant admitted to having penile to vaginal intercourse on at least six occasions. He also admitted to her mouth being on his penis more than once and to his hand touching her vagina on at least twenty occasions. He also described her feet rubbing on his penis, his mouth being on her vagina twice and two occasions where his mouth was on her breasts.

(Doc. 9-1, Ex. C, at 13-15.)[2]

         b. Plea Agreement, Change of Plea, and Sentencing.

         On January 5, 2016, Petitioner pleaded guilty to two counts of Molestation of a Child (Counts 4 and 7), class 2 felonies and Dangerous Crimes Against Children; and one count of Attempted Molestation of a Child (amended Count 12), a class 3 felony and Dangerous Crime Against Children. (Doc. 9-1, Ex. B, at 7.)

         On February 5, 2016, Petitioner was sentenced to 17 years for each count of Molestation of a Child (Counts 4 and 7), to run consecutively. (Doc. 9-1, Ex. D, at 22.) For Attempted Molestation of a Child (Count 12), Petitioner was sentenced ...


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