Ramirez-Ramos v. Ryan

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE

         I. MATTER UNDER CONSIDERATION

         Petitioner, presently incarcerated in the Arizona State Prison Complex at Kingman, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 23, 2018 (Doc. 1). On July 20, 2018 Respondents filed their Answer (Doc. 9).

         The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         The undersigned concludes the Petition is barred by the statute of limitations.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL

         “On November 7, 2000, Defendant, an adult aide on eleven-year-old M.D.'s school bus, put his hand under M.D.'s underwear while they were seated together on the bus and rubbed her clitoris for a couple minutes just before M.D. was dropped off after school.” (Exhibit L, Mem.Dec. ¶ 2.) (Exhibits to the Answer, Doc. #9, are referenced herein as “Exhibit ____”; Exhibits to the Petition, Doc. 1, are referenced herein as “Exhibit P ___.”)

         Based on this incident, Defendant was indicted some six and a half years later, on one count of sexual conduct with a minor under 12 and one count of sexual intercourse with a minor under 12. (Exhibit B, Indictment 6/15/7; Exhibit C, Addendum to Indictment 9/20/7 (modifying alleged age of victim to under 12).)

         The state offered a Plea Agreement (Exhibit P-B) for a plea to amended charges of aggravated assault, a Class 6 felony, and solicitation to commit sexual conduct with a minor, a class 2 misdemeanor, with maximum possible sentences of 2 years and 4 months, respectively. The Plea Agreement required Plaintiff to register as a sex offender. When Defendant appeared for a Plea Negotiation Conference on October 30, 2017, the state had withdrawn the plea offer. (Exhibit P-B, Minute Entry; Exhibit P-C, R.T. 10/30/07.)

         Defendant proceeded to a jury trial and was found guilty on both counts. (Exhibit D, Verdicts.)

         “The parties stipulated that the offenses arose out of the same act, thus, the trial court sentenced defendant to concurrent terms of seventeen years' imprisonment based on its evaluation of mitigating and aggravating factors.” (Exhibit L, Mem. Dec. at ¶ 3.)

         “The trial court subsequently vacated the child molestation conviction because, under the facts of this case, it is a lesser-included offense of sexual conduct with a minor.” (Id.) (See also Exhibit H, Order 2/29/8.)

         B. PROCEEDINGS ON DIRECT APPEAL

         Petitioner filed a direct appeal, raising issues related to aggravating factors and two issues regarding jury instructions. (Exhibit L, Mem. Dec. at ¶ 1; Exhibit I, Opening Brief.) On December 3, 2019, the Arizona Court of Appeals issued its Memorandum Decision (Exhibit L), affirming Petitioner's remaining conviction and sentence.

         Petitioner sought review by the Arizona Supreme Court, who denied review on July 7, 2010. (Exhibit N, Order 7/7/10.)

         Petitioner did not seek further review.

         C. PROCEEDINGS ON POST-CONVICTION RELIEF

         A month later, on August 6, 2010, Petitioner filed through counsel a Notice of Post-Conviction Relief (Exhibit P-D). A Petition for Post-Conviction Relief was ultimately filed on or about May 23, 2011 (Exhibit P-D), asserting claims of ineffective assistance of counsel in failure to timely present the plea offer and failure to challenge the withdrawal of the plea offer as a violation of due process, in part based on the almost immediate withdrawal, and in part upon the inapplicability of the sex-offender registration requirement attempted to be included.

         The Petition was dismissed without a hearing on October 4, 2011, the trial court concluding that although counsel was deficient in failing to communicate the offer, Petitioner's insistence on pleading no-contest rather than guilty precluded a finding of prejudice. (Exhibit P-D, Order 10/4/11.) Petitioner moved for reconsideration, which was denied on December 14, 2011. (Exhibit P-D, Motion and Order.)

         Petitioner then filed through counsel a Petition for Review (Exhibit P-D) by the Arizona Court of Appeals. On October 31, 2012, the Arizona Court of Appeals granted review but denied relief. That court adopted the PCR court's conclusion on prejudice, but also found no reasonable probability the court would have accepted the plea agreement, and that the prosecution was free to withdraw the plea offer. (Id.)

         Petitioner then filed through counsel a Petition for Review (Exhibit P-D) by the Arizona Supreme Court. On March 27, 2013, that court summarily denied review. (Exhibit O.)

         D. FIRST FEDERAL HABEAS PROCEEDING

         A little more than 8 months later, on December 3, 2013, Petitioner filed a pro se habeas petition in CV-13-8288-PCT-NVW (MEA). (CV-13-8288, Doc. 1.) Petitioner also filed an Application to Proceed in Forma Pauperis (id. at Doc. 2), which was denied on March 31, 2014, and a deadline set for Petitioner to pay the filing fee (id. at Order 3/31/14, Doc. 9). On April 28, 2014, Petitioner filed a “Motion” to voluntarily dismiss his case. (Id. at Doc. 10.) On May 13, 2014, Ramirez-Ramos's habeas petition was dismissed by the Clerk of the Court without prejudice, citing the failure to comply with the Court's March 31, 2014 order. (Id. at Doc. 11.)

         Three and a half years later, on October 6, 2017, Petitioner moved to vacate the May 13, 2014 judgment dismissing his petition and to reopen his case, asserting that after receiving the order to pay the filing fee, he submitted paperwork for payment of the fee to prison officials, and after the dismissal was confused with how to proceed. (Id. at Doc. 12.) On November 27, 2017, this Court denied Petitioner's motion, finding:

The Court finds no basis for reopening this case. The Court notes first that in April 2014, Petitioner moved to voluntarily dismiss this case. Further, although Petitioner states there was an error in processing his check for payment of the filing fee, he does not explain why he waited more than three years after dismissal to attempt to remedy the issue.

(CV-13-8288, Doc. 15 at 2.) The Court further ordered that if Petitioner still wished “to present his claims, he must do so in a newly filed case.” (Id.)

         E. PRESENT FEDERAL HABEAS PROCEEDING

         Petition - Almost five months later, Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 23, 2018 (Doc.1). The Petition includes Petitioner's certification that it was placed in the prison mailing system on April 9, 2018. (Id. at “11.”)

         Petitioner's Petition asserts the following two grounds for relief: “In Ground One, Petitioner claims he was denied effective assistance of counsel, in violation of the Sixth Amendment. In Ground Two, Petitioner alleges his due process rights were ...