United States District Court, D. Arizona
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had withdrawn the plea offer.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 ...