United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.
matter is on referral pursuant to Rules 72.1 and 72.2 of the
Local Rules of Civil Procedure for further proceedings and a
report and recommendation. Petitioner Christopher Johnson
(“Petitioner”), who is confined in the Arizona
State Prison Complex-Kingman, filed a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (“Petition”) (Doc. 1), challenging
his 2013 sentence resulting from guilty pleas pursuant to a
plea agreement entered in the Maricopa County Superior Court
case #CR2012-128491. Petitioner was convicted of sexual
abuse, sexual conduct with a minor, and attempted sexual
conduct with a minor; he was sentenced to 15.5 years in
prison on the sexual conduct conviction and lifetime
probation on the sexual abuse and attempted sexual conduct
convictions (Id.). The Petition asserts one ground,
ineffective assistance of counsel (Id.).
Court ordered that Respondents answer the Petition (Doc. 4).
Respondents filed a Limited Answer (Doc. 9), and Petitioner
filed a Reply (Doc. 11). This matter is ripe for decision.
For the reasons set forth below, the undersigned recommends
that this Court deny and dismiss the Petition with prejudice
as untimely and deny a certificate of appealability.
Convictions and Sentences
2013, Petitioner plead guilty in Maricopa County Superior
Court case #CR2012-128491 to one count of sexual abuse, a
class 3 felony and dangerous crime against children (Count
1); sexual conduct with a minor (masturbatory), a class 2
felony and dangerous crime against children (Count 2); and
attempted sexual conduct with a minor (masturbatory), a class
3 felony and dangerous crime against children (Count 3) (Doc.
9, Exs. A, G, H; Doc. 9-1 at 3-7, 24-33). The victim of the
crimes was a thirteen year old girl (Doc. 9, Exs. A, G; Doc.
9-1 at 3-7, 25). In exchange for Petitioner's guilty
pleas under the plea agreement, the state dismissed three
other charges and its multiple-offenses allegations (Doc. 9,
Ex. G; Doc. 9-1 at 26). The plea agreement called for a flat
time prison sentence on Count 2 of between 14 and 20
years as well as lifetime supervised probation
with special sex offender conditions and other conditions for
Counts 1 and 3 (Doc. 9, Ex. G; Doc. 9-1 at 25-33). As part of
the plea agreement, Petitioner agreed to surrender the
location of all photographic images of the minor victim and
any other child pornography, and Coconino County agreed not
to file charges against Petitioner regarding photographs of
the minor victim and conduct in Coconino County discovered
during the Phoenix Police investigation that led to the
Maricopa County prosecution (Doc. 9, Ex. G; Doc. 9-1 at 26,
formally pleaded guilty, pursuant to the agreement, on
November 18, 2013, and the trial court deferred acceptance of
the pleas (Doc. 9, Exs. G, H; Doc. 9-1 at 25-37). On December
17, 2013, the trial court accepted the guilty pleas and the
plea agreement, signed the plea agreement, and found that the
Petitioner had “knowingly, intelligently and
voluntarily waived all pertinent constitutional and appellate
rights” (Doc. 9, Exs. I, M; Doc. 9-1 at 38-47, Doc. 9-2
at 1-8, 3). The trial court then sentenced Petitioner in
accordance with the stipulated terms of the plea agreement
(Doc. 9, Exs. G, I, K, L, M; D o c . 9 - 1 a t 25 - 33, 43,
50 - 62, Doc . 9 -2 at 1-8) . On Counts 1 and 3, Petitioner
was sentenced to lifetime probation (Doc. 9, Ex. M; Doc. 9-2
at 4). Petitioner was sentenced to less than the presumptive
sentence of 20 years imprisonment on Count 2, and instead was
sentenced to 15.5 years imprisonment on that count (Doc. 9,
Ex. M; Doc. 9-2 at 3).
was represented by counsel throughout the trial court
proceedings (see, e.g., Doc. 9, Exs. D, E, F, G, H,
M; Doc. 9-1 at 14-23, 28, 31, 35, Doc. 9-2 at 2).
Appeal and PCR Proceedings
did not appeal his conviction and sentence (Doc. 1 at 2),
which he could not do, in any event, because he was convicted
by plea agreement. See A.R.S. § 13- 4033(B); Summers
v. Schriro, 481 F.3d 710, 711-717 (9th Cir.
2007) (concluding that an “‘of right
proceeding,' [post-conviction relief or PCR proceeding]
available under Arizona Rule of Criminal Procedure 32 to
criminal defendants who plead guilty or no contest, is a form
of ‘direct review' within the meaning of 28 U.S.C.
§ 2244(d)(1)”); see also Ariz. R. Crim.
P. 32.1 (providing a defendant who pleads guilty “may
file an of-right notice of post-conviction relief”).
sentencing Petitioner received a notice of his right to
postconviction relief (“PCR”) in which he was
notified of the requirement that he file a PCR notice within
90 days of the entry of judgment and sentence (Doc. 9, Ex. J;
Doc. 9-1 at 48-49). See Ariz. R. Crim. P.
32.4(a)(2)(C) (requiring the filing of an of-right proceeding
notice no later than 90 days after the entry of judgment and
10, 2017, over three years after the December 17, 2013,
sentencing, Petitioner filed his first notice of
post-conviction relief (“PCR”) pursuant to
Arizona Rule of Criminal Procedure 32 (Doc. 9 Ex. P; Doc. 9-2
at 13-16). Petitioner checked the box that stated his
“failure to file a timely notice of post-conviction
relief … was without fault” of Petitioner
(Id.). No. explanation was given as to why or how
the failure to file a timely notice was not Petitioner's
fault (Id.). Petitioner wrote in the PCR notice that
he was “requesting a sentence reduction for count
2” and was not requesting that the overruling of any
conviction (Id.). The notice checked a box for
ineffective assistance of counsel with no explanation, and
the notice stated no other ground (Id.).
28, 2017, the Maricopa County Superior Court dismissed the
PCR notice, noting it was untimely by more than three years
(Doc. 9, Ex. Q; Doc. 9-2 at 17-19). The superior court
rejected Petitioner's claim that the untimeliness was
without fault on his part, noting Petitioner had
“fail[ed] to supply an adequate factual or legal basis
to excuse this untimely filing” and had received clear
notice of the 90-day deadline (Id.). The superior
court found that Petitioner had failed to state a claim for
which relief could be granted in an untimely PCR proceeding
and had failed to state a legal basis for his claim
requesting a sentence reduction (Id.). The superior
court also found that Petitioner had failed to assert
substantive claims supported by specific facts
(Id.). The ruling was mailed to Petitioner at the
wrong address, and was returned to the court (Doc. 9, Ex. R;
Doc. 9-2 at 20-21). It appears that Petitioner later received
the ruling because, in May of 2018, Petitioner filed a
Petition for Review of a July 22, 2017, superior court ruling
that his PCR notice was untimely (Doc. 9, Ex. U; Doc. 9-2 at
August 21, 2017,  Petitioner filed another PCR notice with
the superior court, requesting the following relief:
“Reduction of sentence without overruling/overturning
conviction. At the discretion of the Court” (Doc. 9,
Ex. S; Doc. 9-2 at 22-26). That PCR notice checked the box
that stated the Petitioner's attorney had not filed a
timely notice of appeal after being instructed to do so and
also stated as an answer as to why the issues had not been
raised before: “Due to the fact the fact finding
initiative was brought to my attention once I had a better
understanding of what the wrongful process was used against
me in order to sign the plea” (Id.).
September 19, 2017, the superior court determined that
Petitioner's PCR notice was successive and untimely (Doc.
9, Ex. T; Doc. 9-2 at 27-29). The superior court rejected any
argument that the untimeliness was without fault on
Petitioner's part, finding that Petitioner had not
asserted “specific facts” and had not
“adequately explain[ed] the reasons for …
untimely assertion” of his claims (Id.).
14, 2018, Petitioner inquired of the Arizona Court of Appeals
regarding the status of his matter, to which the Arizona
Court of Appeals responded that there were no active matters
(Doc. 9, Ex. U; Doc. 9-2 at 37). On May 31, 2018, Petitioner
filed a petition for review with the court of appeals (Doc.
9, Ex. U; Doc. 9-2 at 30-34). In the petition for review,
Petitioner asserted that he had “shown a decisive and
persistent effort” in his attempts to “bring this
matter to the attention to the courts” (Doc. 9, Ex. U;
Doc. 9-2 at 33). Petitioner also wrote that he had “no
reasonable assistance from any source that had any
involvement in [his] case” (Id.). The court of