United States District Court, D. Arizona
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 ...