Johnson v. Ryan

          REPORT AND RECOMMENDATION

          HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.

         This 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.).

         The 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.

         I. BACKGROUND

         A. Convictions and Sentences

         In 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^[1] 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, 30-33).

         Petitioner 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).

         Petitioner 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).

         B. Appeal and PCR Proceedings

         Petitioner 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 (9^th 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”).

         At 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 sentence).

         On June 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.).

         On June 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 30-31, 33).

         On August 21, 2017, ^[2] 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.).

         On 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.).

         On May 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 appeals ...