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Jones v. Ryan

United States District Court, D. Arizona

August 15, 2018

Michael Jones, 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

         This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. Pending are Michael Jones's (“Petitioner's” or “Jones's”) Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (“Petition”) (Doc. 15), and Petitioner's Motion to Stay Petition for Writ of Habeas Corpus (Doc. 23). Respondents have filed a Limited Answer to the Petition (Doc. 28), and a Response to Petitioner's motion to stay (Doc. 27). Petitioner filed a Reply to Respondents' Limited Answer. (Doc. 29) For the reasons set forth herein, the undersigned Magistrate Judge recommends that this Court deny and dismiss the Petition with prejudice as untimely filed pursuant to 28 U.S.C. § 2244(d), and otherwise as procedurally defaulted without excuse. Further, the undersigned Magistrate Judge recommends that this Court deny Petitioner's Motion to Stay, and also deny a certificate of appealability.

         I. BACKGROUND

         A. Indictment, plea agreement, sentence

         In July 1998, Petitioner was indicted in the Maricopa County Superior Court on four counts of Sexual Conduct with a Minor and two counts of Molestation of a Child. (Doc. 28-1 at 9) In October 1999, Petitioner entered into a plea agreement, under which he agreed to plead guilty to an amended count of Child Molestation[1], and to an amended count of Attempted Sexual Conduct with a Minor Under the Age of 15. (Id. at 12-13) Sentencing was set for November 19, 1999. (Id. at 16)

         A sentencing memorandum indicated that Petitioner engaged in repeated sexual activity over roughly a three-year period with his step-daughter, beginning when she was 12.[2] (Id. at 20) During a confrontation call with his victim, Petitioner “admitted to having sex” with her. (Id.) Petitioner failed to appear at his sentencing, and the court issued a bench warrant and vacated sentencing until Petitioner was apprehended. (Id. at 25, 27) The record indicates that Petitioner was in custody in August 2007 (Id. at 29), and was sentenced in April 2008 (Id. at 120-124). The superior court sentenced Petitioner to the presumptive term of 17 years on one count, and to lifetime probation on the second count. (Id. at 107-108)

         B. Post-Conviction Relief action

         Petitioner filed a Petition for Post-Conviction Relief (“PCR”) in June 2011. (Doc. 28-1 at 130-133) Petitioner selected a number of grounds for relief from the list included on the standard form, including a coerced confession, unlawful guilty plea, double jeopardy, lack of jurisdiction, and improper sentencing. (Id. at 131) He stated that he had not asserted these claims earlier, because he had “just found these laws and rules.” (Id. at 132) Petitioner requested relief in the form of a new trial, correction of his sentence, the right to file a delayed appeal, withdrawal of his plea, and the right to plead not guilty. (Id. at 133)

         Petitioner was appointed counsel, who, in January 2012, filed a notice of completion of PCR review, and advised the court that she was unable to identify any colorable claims for relief. (Id. at 136) Counsel requested additional time for Petitioner to file a PCR petition pro per. (Id.) After Petitioner failed to file a pro per PCR petition, his action was dismissed by the superior court in June 2012. (Id. at 139) Petitioner did not appeal.

         In September 2014, Petitioner filed a subsequent PCR petition, claiming newly-discovered material facts, actual innocence, and a significant change in the law. (Id. at 142) He alleged claims of prosecutorial misconduct, ineffective assistance of counsel at initial appearance, at sentencing, and in his PCR action, as well as “judicial indiscretion.” (Id. at 143-144) The superior court denied relief, finding his action “both untimely and successive.” (Id. at 174) The court concluded that Petitioner had failed to establish a basis for overcoming the timeliness bar found in Rules 32.4(a) and 32.1(d), (e), (f), (g), or (h) of the Arizona Rules of Criminal Procedure, and that he failed to state a viable claim. (Id. at 175) Petitioner filed a petition for review in the Arizona Court of Appeals. (Id. at 177-198) The court of appeals denied relief in February 2017, finding the superior court had not abused its discretion. (Id. at 209-210)

         C. Jones's § 2254 habeas petition

         Jones filed his initial § 2254 petition on August 7, 2017. (Doc. 1) This Court dismissed the petition with leave to amend. (Doc. 13) Petitioner filed two identical amended petitions in January 2018. (Docs. 14 and 15) The Court selected the January 24, 2018 amended Petition (Doc. 15) as the “operative petition.” (Doc. 21 at 2)

         Petitioner asserts a single claim: that his rights to due process guaranteed by the Fourteenth Amendment were violated because he was convicted under Arizona Revised Statutes sections 13-1401 and 13-1410, and a 2017 decision by this Court held that section 13-1410 improperly shifted the burden of proof of an element of the crime to the defendant. (Doc. 15 at 6-7, citing May v. Ryan, 245 F.Supp.3d 1145 (D. Ariz. 2017)) Respondents contend that the Petition is untimely and his claim is procedurally defaulted without excuse. (Doc. 28 at 1)

         D. Jones's motion to stay

         On May 10, 2018, Petitioner filed a Motion to Stay his Petition. (Doc. 23) He requested this Court to stay his Petition while he moves for PCR in state court pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Id.) The basis for Petitioner's motion is that in April 2018, Arizona's governor signed into law Arizona House Bill 2283, which removed the A.R.S. § 13-1407(E) defense to prosecution under section 13-1410 that this Court found unconstitutional in May v. Ryan. (Id. at 1) Respondents filed a response to Petitioner's motion to stay. (Doc. 27)

         II. LEGAL STANDARDS

         A. AEDPA Statute of Limitations

          A threshold issue for the Court is whether the habeas petition is time-barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas petition because he filed it after April 24, 1996, the effective date ...


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