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Frazier v. Ryan

United States District Court, D. Arizona

July 16, 2018

James Kevin Frazier, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE.

          ORDER

          HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE

         Petitioner James Kevin Frazier has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. Summary of Conclusion.

         On June 17, 2010, Petitioner was sentenced, pursuant to a guilty plea, to a 10-year term of imprisonment, to be followed by lifetime probation on two other counts. Petitioner's conviction became final on October 18, 2012, when the Arizona Supreme Court denied and thus ended his first post-conviction review proceedings. Petitioner filed two subsequent PCR proceedings, but those proceedings were dismissed as successive and untimely. This habeas Petition was due on October 18, 2013, but was not filed until December 6, 2017. There are no grounds for equitable tolling. The Petition is untimely. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         A. Facts.

         On February 4, 2010, the State charged Petitioner with four counts of molestation of a child, class 2 felonies and dangerous crimes against children. (Doc. 9-1, Ex. A, at 4.) The presentence investigation report contains the following summary:

On or between October 4, 2007, and October 14, 2009, the defendant engaged in sexual contact with a minor female on several occasions when she was between the ages of ten and eleven. This sexual contact involved the victim (who is the daughter of Mr. Frazier's former girlfriend) masturbating the defendant's penis. Mr. Frazier, who was residing with the victim and her mother when these molestations took place, would not allow the victim to do certain things (such as play with her friends at a swimming pool) unless she promised to masturbate him. These illegal sexual encounters were brought to the attention of the police by a friend of the victim's mother, and after initially claiming the defendant had not molested her, the victim that he had molested her as described above.
During a confrontation call made by the victim's mother to the defendant (the conversation was monitored by the police), Mr. Frazier admitted, “okay it happened one time.” Further, the defendant stated he would tell the truth about this matter “to the police, the judge, the jury, and everybody, ” commenting that the victim deserves that. The defendant later met with the victim's mother at a local fast food restaurant, at which time the police contacted Mr. Frasier and told him they wanted to hear his side of the story. Mr. Frazier did not wish to answer any questions outside the presence of his attorney, and he left the restaurant at that point.

(Doc. 9-1, Ex. E, at 35.)

         B. Plea and Sentencing.

         On May 19, 2010, Petitioner accepted a plea agreement and pleaded guilty to three counts of attempted molestation of a child. (Doc. 9-1, Ex. B, at 9.) On June 17, 2010, the trial court sentenced Petitioner to the stipulated agreement of 10 years in prison on Count One and consecutive lifetime probation on Counts Two and Three. (Doc. 9-1, Ex. F, at 74.)

         C. Petitioner's ...


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