Hopson v. Ryan

          HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT.

          REPORT AND RECOMMENDATION

          Michelle H. Burns United States Magistrate Judge.

         On June 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”)^[1]. (Doc. 13). On November 6, 2017, Respondents filed a Limited Answer (Doc. 21), and on May 1, 2018, Petitioner filed a Reply (Doc. 32).

         STATE COURT PROCEEDINGS

         Petitioner 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^[2].) 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 2007.

[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.)

         On 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. (Id.)

         On 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.)

         On May 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.)

         On June 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.)

         Although 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 Petitioner's case:

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 notice

[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 manner.

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 review.

(Exh. GGG.)

         On 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.)

         In the 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 ...