Sprouse v. Ryan

          ORDER

          Dominic W. Lanza, United Slates District Judge

         On April 2, 2018, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On October 15, 2018, Magistrate Judge Boyle issued a Report and Recommendation (“R&R”) concluding the Petition should be denied and dismissed with prejudice. (Doc. 15.) Afterward, Petitioner filed written objections to the R&R (Doc. 16) and respondents filed a response (Doc. 18). As explained below, the Court will deny Petitioner's objections.

         I. Background

         In May 2004, Petitioner was sentenced to 127 years in prison after being convicted at trial of sexual assault, sexual abuse, sexual conduct with a minor, child molestation, and sexual exploitation of a minor. (Doc. 15 at 1-3; see also State v. Sprouse, 2009 WL 2581374 (Ariz.Ct.App. 2009)). The evidence at trial included testimony from the victim, Petitioner's confession to the police that he'd had sex with the victim, and child pornography found in Petitioner's storage unit. (Id.)

         In August 2009, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 15 at 4.)^[1] In April 2010, the Arizona Supreme Court denied review. (Id.) In May 2010, the Arizona Court of Appeals filed its mandate. (Id.)

         In July 2015-more than five years later-Petitioner filed a notice of PCR asserting that his sentence was based on an unconstitutional enhancement and was also excessive. (Id.) On October 1, 2015, the PCR court dismissed the notice as untimely. (Id.)

         On October 12, 2015, Petitioner filed a notice of appeal. (Id.)

         On July 20, 2017, the Arizona Court of Appeals filed a memorandum affirming the untimeliness ruling. (Id.)

         On April 2, 2018, the Petition was filed. (Doc. 1.) It asserts the following four grounds for relief:

(1) Petitioner's Fifth, Eighth, and Fourteenth Amendment rights were violated because the State of Arizona and County of Maricopa should not have used “the Enhancement Sentencing pursuant to ARS § 13-604.04 [and] 13-705 on a First Time Offender”;

(2) Petitioner's Fifth, Eighth, and Fourteenth Amendment rights were violated because the State of Arizona and County of Maricopa used the sentencing enhancement pursuant to Arizona Revised Statute § 13-705 when the act was committed prior to October 2008, but § 13-705 “did not take effect until AFTER Jan[uary] 1, 2009”;

(3) Petitioner's Fifth, Eighth, and Fourteenth Amendment rights were violated because the State of Arizona and County of Maricopa should not have used “an Enhancement Tool (statute) ARS 13-604.01 . . . . on the second probation (lifetime) to run [make it run] consecutive[] to the first [probation]”; and

(4) Petitioner's Fifth, Eighth, and Fourteenth Amendment rights were violated because the State of Arizona and County of Maricopa illegally imposed a sentence “by use of taking out [the] element of mens ...