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Jackson v. Ryan

United States District Court, D. Arizona

January 29, 2019

Ramond Curtis Jackson, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT COURT.

          REPORT AND RECOMMENDATION

          MICHELLE H. BUMS UNITED STATES MAGISTRATE JUDGE

         On February 20, 2018, Petitioner Ramond Curtis Jackson, who is confined in the Arizona State Prison, Eyman Complex, Florence, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (hereinafter “habeas petition”). (Doc. 1.) On June 13, 2018, Respondents filed a Limited Answer, and on July 6, 2018, Petitioner filed a Reply. (Docs. 8, 13.)

         BACKGROUND

         The facts of Petitioner's state criminal case are summarized by the Arizona Court of Appeals as follows:

Defendant was indicted on four counts of sexual conduct with a minor, class 2 felonies and dangerous crimes against children. Defendant was alleged to have engaged in sexual intercourse, oral sexual contact, digital penetration of anus, and digital penetration of vagina with his seven year old step-daughter on August 23, 2007. The jury found defendant guilty of the offenses as charged, and the court imposed presumptive, consecutive sentences of thirty-five years imprisonment on each count.

(Doc. 8, Exh. A.)

         After he was sentenced, Petitioner filed a Notice of Appeal and requested appointment of counsel. (Doc. 8, Exh. B.) Counsel was appointed and filed an Opening Brief raising one issue, that “[t]he Court failed to declare a mistrial after jurors heard inadmissible information during closing arguments, ” in violation of the Arizona and United States Constitutions. (Doc. 8, Exh. C at 6.) The Arizona Court of Appeals affirmed in a Memorandum Decision, finding that Petitioner had invited error by his outburst in front of the jury regarding the time he had been in jail awaiting trial and the potential sentence he faced. (Doc. 8, Exh. A at 4.)

         The Court of Appeals Mandate issued on July 7, 2016. (Doc. 8, Exh. D.) On August 24, 2016, Petitioner filed a Motion for Expansion of Time to file a petition for review to the Arizona Supreme Court. (Doc. 13, Exh. H.) The trial court granted that motion on September 8, 2016, giving Petitioner until September 30, 2016 to file his petition for review in the Arizona Supreme Court. (Doc. 8, Exh. GG; Doc. 13, Exh. J. at 1.) On September 1, 2016, Petitioner's appellate attorney notified Petitioner that she would not be filing a petition for review on his behalf, as she did not believe there were any meritorious issues to raise. (Doc. 13, Exh. M.) Petitioner did not file a petition for review in the Arizona Supreme Court.

         Instead, on October 4, 2016, Petitioner filed a Notice of Post Conviction Relief (hereinafter “PCR”), in which he claims that his failure to file a timely PCR notice on time was without fault on his part.[1] (Doc. 8, Exh. E at 3.) Arizona Rules of Criminal Procedure provided that Petitioner's deadline for filing a PCR notice was 30 days from the issuance of the mandate by the Arizona Court of Appeals, or from the date of the Memorandum Decision. See Ariz.R.Crim. P. 32.4(a). On October 20, 2016, the trial court dismissed Petitioner's PCR proceedings, as untimely:

Under Rule 32.4(a) of the Arizona Rules of Criminal Procedure, the Notice of Post-Conviction Relief must be filed within 90 days of the entry of judgment and sentencing, or within 30 days of the issuance of the order and mandate by the appellate court, whichever is later. These dates are clearly stated in the “Notice of Rights of Review After Conviction and Procedure” form that Defendant received at sentencing. Because the appellate court's mandate issued on July 6, 2016, the deadline for Defendant's Notice of Post-Conviction Relief was August 5, 2016. His Rule 32 proceedings is thus untimely by almost two months.
Nevertheless, the defendant contends that the untimeliness of this Rule 32 proceedings is without fault on his part and he is entitled to relief under Arizona Rule of Criminal Procedure 32.1(f) (Notice at 3). He states that he did not receive the order of mandate until August 20, 2016. According to Defendant, his appellate counsel “was on vacation during the time order of mandate was sent. She didn't mail it to me until she got back on 8-15-16.” (Id.) Defendant fails to supply an adequate factual or legal basis to excuse his untimely filing. Rule 32.1(f) affords no relief because it applies when (1) a pleading defendant seeks to file his first Petition for Post-Conviction Relief but has missed the filing deadline through no fault of his own; or (2) a trial defendant seeks a delayed appeal because through no fault of his own the notice of appeal is not timely filed. “Relief pursuant to subsection (f) will continue to be unavailable to all post-conviction relief proceedings not ‘of right.'” Ariz. R.Crim.P. 32.1(f) cmt. Because his Rule 32 proceeding is not an of-right proceeding, Defendant is not entitled to relief. See id; Moreno v. Gonzalez, 192 Ariz. 131, 961 P.2d 205 (1998).
In sum, Defendant fails to state a claim for which relief can be granted in an untimely Rule 32 proceeding. The defendant must assert substantive claims supported by specific facts and adequately explain the reasons for their untimely assertion. Ariz.R.Crim.P. 32.2(b). Defendant has failed to meet this standard. (Doc. 8, Exh. F.)

         On October 31, 2016, Petitioner filed a Motion/Response to Court Dismissal/Judgment. (Doc. 8, Exh. G.) On November 13, 2016, the trial denied Petitioner's motion as “not factual, ” as, contrary to Petitioner's assertion, he was not given an extension to file his PCR notice. (Id., Exh. H.) Petitioner then filed another objection to the court's dismissal, again asserting that his PCR was timely as it was filed on September 29, 2014. (Id., Exh. I.) The court took no action on that objection. (Id., Exh. J.) Petitioner filed a motion for reconsideration, and a motion to recuse the trial judge for bias. (Id., Exhs. K, L.) The court denied Petitioner's motion for reconsideration on January 3, 2017. On January 22, 2017, Petitioner filed a motion for an evidentiary hearing, which was denied by the court. (Id., Exhs. N, O.)

         On January 30, 2017, attorney Wendy Mays filed a Notice to Court re: Untimely PCR, in which she urged the court to reconsider its denial of Petitioner's PCR Notice as untimely because, “from her perspective the untimely filing of the Notice of Appeal [sic] is due to her error, not [Petitioner]'s.” (Doc. 8, Exh. P.) Furthermore, she indicated that “at the time the mandate was filed, she was on vacation and out of the country, . . . [and] did not discover the mandate until after she returned and upon its discovery, mailed it to [Petitioner] informing him to request an extension of time due to [] Counsel's oversight.” (Id.) On February 22, 2017, Petitioner filed another motion to recuse the trial judge. (Id., Exh. Q.) On March 8, 2017, the trial court denied the request, and “inform[ed] [Petitioner] that he appears to be confused about two separate rulings.” (Id., Exh. R.)

         One ruling granted him a leave for an extension of time to appeal to the Supreme Court and the other ruling regarding the untimely notice of post-conviction relief.

On August 24, 2016, the defendant sought an extension of time to appeal to “Arizona Supreme Court” pursuant to Rule 32.1(f), notwithstanding the fact that the mandate had already issued on July 6, 2016 based upon the fact that no petition for review had been filed. Subsequently, this Court ruled on September 12, 2016 that the defendant could be granted an extension for appeal to the Arizona Supreme Court until September 30, 2016. The defendant thereafter filed no notice of appeal.
The second ruling of this Court filed on October 21, 2016, addressed the defendant's October 4, 2016 rule 32 proceeding. At that point, the mandate had already issued and no notice of appeal had been filed. Pursuant to Moreno v. Gonzalez, 192 Ariz. 131 (1998) rule 32.1(f) cannot be used to expand the time for a rule 32 proceeding after appeal. Rule 32.1(f) only apples to Rule 32 proceedings of right. Therefore, the previous grant of an extension applied to the effort to get the mandate recalled and appeal to the Arizona Supreme Court. The extension was not a license to file a delayed notice of post-conviction relief. Based upon Moreno, the Court had no ability to grant such an extension.
The court finds that apart from the time limits issue, the defendant simply checked the box for ineffective assistance of counsel as a basis for his rule 32 petition. To the extent he is complaining of ineffective assistance of trial counsel, there are no supporting facts.

(Id.)

         On March 29, 2017, attorney Wendy Mays filed a second Motion to Reconsider re: Untimely PCR, again asserting that Petitioner should not be punished for her oversights. (Doc. 8, Exh. S.) The court denied the motion. (Id., Exh. T.) On April 11, 2017, Petitioner filed a response to the court's denial of his recusal motion, as well as a motion for change of judge for cause pursuant to rule 10.1. (Id., Exhs. U, V.) On April 28, 2017, the trial court referred Petitioner's motion for change of judge for cause to another judge on the court. (Id., Exh. Z.) On June 20, 2017, another judge on the court issued a ruling denying the motion.

Defendant offers no proof, and does not cite to anything in the record or FTR recordings, suggesting that he was deprived of a fair hearing before an impartial judge. The rulings he identifies, either individually and in aggregate, do not exhibit deep-seeded favoritism or otherwise overcome the presumption against bias.

(Id.)

         Petitioner sought review in the Arizona Court of Appeals, which the Court dismissed summarily on July 5, 2017. (Doc. 8, Exh. EE.) The Court noted that “the trial court dismissed the petition for post-conviction relief on March 30, 2017, and the petition for ...


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