United States District Court, D. Arizona
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT.
REPORT AND RECOMMENDATION
Michelle H. Burns United States Magistrate Judge.
13, 2017, Petitioner, Leonard Keith Hopson, who is confined
in the Arizona State Prison, Huachuca Unit, Kingman, Arizona,
filed a pro se Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (hereinafter
“amended habeas petition”). (Doc. 13). On
November 6, 2017, Respondents filed a Limited Answer (Doc.
21), and on May 1, 2018, Petitioner filed a Reply (Doc. 32).
was indicted in September, 2011 on two counts of aggravated
assault, eight counts of sexual conduct with a minor, and
four counts of molestation of a child. (Exh. B.) The facts, as
reported in the Presentence Report, were as follows:
On August 25, 2009, Robin [H] called police to inquire about
the statute of limitation for rape on behalf of her daughter
[RH]. Robin said she always thought [Petitioner] raped [RH]
when [RH] was about thirteen-years-old [sic]. Robin also
stated [RH] had three children with [Petitioner] and until
two months ago they lived together. Robin advised they were
having child custody issues.
Police contacted [RH] who reported that at age eleven she
engaged in a relationship with [Petitioner] who was
twenty-three years old when they met. On several occasions
[RH] would wake up in the middle of the night with her
underwear pulled down and [Petitioner] trying to put his
penis into her anus. He also put his fingers into her vulva
while she was sleeping. These incidents occurred from 1990 to
[RH] was first impregnated by [Petitioner] at age sixteen and
she suffered a miscarriage. She again got pregnant at age
seventeen by [Petitioner]. She had her son at age eighteen.
[RH] ended up pregnant two more times, both of which resulted
in births, by [Petitioner]. At age twenty-seven she moved to
Colorado to get away from [Petitioner], but he followed her
and they eventually moved in together. She finally ended the
relationship after he engaged in sexual intercourse with her
numerous times without her permission. [RH] was on medication
that made her enter a deep sleep and at least once a week she
would wake up to find [Petitioner] having anal sex with her.
[RH] stated that she learned a couple weeks prior that
[Petitioner] molester her younger sister, [KH], when she was
about nine or ten-years-old [sic]. [RH] stated [Petitioner]
also molested her older sister and brother, but they wanted
to forget about it and not prosecute.
Police contacted her older sister and brother, and they both
denied sexual contact with [Petitioner].
Police contacted [KH] who stated that [Petitioner] began
sexually assaulting her when she was about nine years old,
and the abuse lasted two or three years. He would stick his
fingers in her vagina and would try to lift her shirt off and
rub her chest area.
Police contacted [Petitioner] on March 1, 2010. He said he
had memory problems, but said he was about twenty years old
when he met [RH] and she was about nine or ten years old. He
admitted having three children with [RH], with the first one
being born when [RH] was eighteen years and two months old.
He admitted knowing how old [RH] was when they met, and
admitted she got pregnant by him when she was seventeen. He
also remembered [RH] having a miscarriage before her first
child. He said he thought they were codependent because he
was helping to support and buy things for [RH] and her
mother, and that is why he thought no one made a big deal
about the relationship. When asked if their relationship was
consensual, [Petitioner] said it was always consensual and
continued to explain that he and [RH] broke up three times
with the first time being when she was bout twelve or
thirteen years old.
(Exh. F, at 1-2.)
August 31, 2012, Petitioner pleaded guilty, pursuant to a
plea agreement, to three counts of attempted child
molestation: Counts 2 and 8 against victim RH, and Count 14
against victim KH. (Exh. D.) Petitioner agreed to a sentence
of lifetime probation on Counts 2 and 8, and a sentence of no
greater than the presumptive 10-years on Count 14.
(Id.) In his plea agreement, Petitioner agreed to
“waive and give up any and all motions, defenses,
objections, or requests which he has made or raised, or could
assert hereafter, to the court's entry of judgment
against him and imposition of a sentence upon him consistent
with [the plea] agreement.” (Id.) Petitioner
furthermore waived and gave up his right to appeal.
October 4, 2012, Petitioner was sentenced to 10-years
imprisonment on Count 14, to be followed by lifetime
probation on Counts 2 and 8. (Exh. J.) Petitioner was given
credit for 276 days of presentence incarceration.
(Id.) Petitioner was provided with and signed his
notice of rights of appeal and post-conviction relief, which
included the deadlines for filing. (Exh. I.)
7, 2013, the Maricopa County Clerk of Court received for
filing three documents from Petitioner: a Notice of
Post-Conviction Relief (Exh. K), a letter to the court (Exh.
L), and a Request for Preparation of Post-Conviction Record
(Exh. M). Only the letter to the court indicates when it was
mailed - on May 6, 2013. In the other two documents,
Petitioner dated his signature November 1, 2012, but does not
specify when the documents were mailed. In fact, in
Petitioner's Request for Preparation of Post-Conviction
Relief Record, the mailing date was left blank. (Exh. M at
2.) The court docket does not reflect any filings by
Petitioner after his sentencing until these filings on May 7,
2013. (Exh. A at 4.)
7, 2013, the trial court denied relief, for the reason that
Petitioner's Rule 32 proceedings were “initiated in
an untimely manner.” (Exh. N.) The court determined
that Petitioner's notice of post-conviction relief was
due to be filed with the court by January 4, 2013, and thus
his May 7, 2013, filings were untimely under state law. The
court also found that Petitioner failed to state a claim for
relief which could be granted in an untimely Rule 32
proceeding, as Petitioner's “[N]otice does not
state any claims for relief nor does it contain any facts,
memoranda, or law.” (Id.) Petitioner did not
seek appellate review of that decision within the thirty day
time limit provided by Rule 32.9(c), Ariz. R.Crim. P. (Exh. A
at 4.) Instead, Petitioner chose to file numerous documents
in the trial court over the next three years that were
considered by the court, but summarily addressed or denied.
(Id. at 4 at 1-4; Exhs. O-Z, AA-CC, EE-HH, FF, QQ,
RR, SS, VV, ZZ.) Several of Petitioner's filings were
construed as successive PCR proceedings, and deemed untimely
by the trial court. (Exhs. O, P, Q, BB.) Petitioner was
successful on two unopposed motions that he filed on May 4,
2016, relating to the percentage surcharge applied to fines
assessed, and to the amount of credit he received for
presentence incarceration time. (Exhs. DD, II) On August 14,
2016, the trial court awarded Petitioner an additional 62
days of presentence incarceration credit, and reduced the
surcharges on the fines assessed on each count. (Exh. NN.)
the state court dismissed Petitioner's initial PCR notice
as untimely, Petitioner nonetheless filed several pleadings
in the Arizona Court of Appeals. Petitioner filed a Special
Action in July, 2015, posing several questions of law to the
Court. (Exh. BBB.) The Court declined to accept jurisdiction.
(Exh. CCC.) In July, 2016, Petitioner filed a “notice
of Petition for Review” in the Court of Appeals, (Exh.
EEE), followed by a “Petition for Review, ” in
August, 2016, (Exh. FFF). On September 19, 2017, the
appellate court denied review in a written Memorandum
Decision, first addressing the procedural history of
Hopson was charged with two counts of aggravated assault,
four counts of child molestation, and eight counts of sexual
conduct with a minor. He pled guilty to three counts of
attempted child molestation. In accordance with the
stipulated terms in the plea agreement, the superior court
sentenced Hopson to a prison term of ten years, followed by
two concurrent terms of lifetime probation. Although advised
of his right to review, Hopson did not timely file a PCR
of-right, and his case became final on January 2, 2013. .
In May 2013, Hopson filed an untimely notice of PCR. The
superior court summarily dismissed, finding that Hopson's
[D]oes not state any claims for relief nor does it contain
any facts, memoranda, or law. . . . [W]hen the notice is
filed in an untimely fashion, the defendant has the burden of
alleging specific claims and supporting those claims with
sufficient facts, arguments, and law. See Ariz. R. Crim. P.
32.2(b) and Ariz. R. Crim. P. 32.4(a).
Hopson did not seek review of this order.
Over the next three years, Hopson filed four additional PCR
proceedings. Not all pleadings were captioned “Notice
of Post-Conviction Relief, ” but in each instance
Hopson was attacking the validity of his conviction or
sentence, and the superior court properly treated the
pleadings as PCRs. See Rule 32.3 (directing the
court to treat such pleadings as “a petition for relief
under this rule and the procedures of this rule shall
govern.”). In each proceeding, the superior court
dismissed the proceeding in an order that identified and
ruled upon the issues raised in a thorough, well-reasoned
In July 2016, Hopson filed a petition for review in which he
requested review of the following superior court orders: (1)
March 7, 2016 (denying motion to compel); (2) April 22, 2016
(dismissing 5th PCR); (3)May 5, 2016 (denying motion to
correct/clarify); (4) May 20, 2016 (denying motion for change
of judge); (5) May 24, 2016 (denying motion to transfer
file); (6) June 2, 2016 (denying motion for rehearing motion
for change of judge). The petition did not comply with
Rule32.9(c), and on July 19, 2016, we advised Hopson by
letter of the deficiencies, and allowed Hopson thirty days to
file a proper petition for review.
In August 2016, Hopson filed this current petition for
review. In the petition, Hopson lists thirty
“grounds” or questions for review, and then
improperly incorporates by reference the pleadings and
exhibits he filed in superior court “to explain in
detail all grounds and questions to this court.” It is
not enough to incorporate by reference any issue or argument.
A petitioner must set forth each claim with record references
and argument. See Rule 32.9(c)(1); State v.
Bortz, 169 Ariz. 575, 577 (App. 1991). Simply
incorporating an earlier pleading by reference is
inappropriate. State v. Moore, 125 Ariz. 528, 529
(App. 1980). Thus, Hopson has failed to present any issue for
December 22, 2016, Petitioner also filed a “Petition
for Review of Minute Entry 11/01/2016" in the Arizona
Court of Appeals, in which he requested that the Court review
four motions he had filed in the trial court, and three
minute entry rulings by the trial court. (Exh. III.) On
December 29, 2016, the Court summarily dismissed the petition
as untimely. (Exh. JJJ.)
Supreme Court of Arizona, Petitioner filed a “Petition
for Review of Minute Entry on January 23, 2017, ”
seeking review of the same trial court rulings. (Exh. LLL.)
The Court summarily denied review on September 17, 2017.
(Exh. MMM.) Petitioner filed other miscellaneous motions in
the Arizona Supreme Court: Motions for Constitutional
Compliance, filed on November 25, 2015 and July 11, 2016
(Exhs. OOO, UUU); and, Petitions for Review ...