United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
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
Indictment, plea agreement, sentence
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, 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)
sentencing memorandum indicated that Petitioner engaged in
repeated sexual activity over roughly a three-year period
with his step-daughter, beginning when she was
(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)
Post-Conviction Relief action
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)
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.
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)
Jones's § 2254 habeas petition
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)
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
Jones's motion to stay
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)
AEDPA Statute of Limitations
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 ...