Jackson v. Ryan

          ORDER

          Dominic W. Lanza United Slates District Judge

         On February 20, 2018, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On January 29, 2019, Magistrate Judge Burns 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. 22), Respondents filed a response (Doc. 23), and Petitioner filed a reply (Doc. 25).^[1] As explained below, the Court will deny Petitioner's objections.

         I. Background

         Petitioner was sentenced to 140 years in prison after being convicted at trial, in Maricopa County Superior Court, of four counts of sexual conduct with a minor. (Doc. 15 at 1.) Specifically, Petitioner was convicted of having “engaged in sexual intercourse, oral sexual contact, digital penetration of anus, and digital penetration of vagina with his seven year old step-daughter.” (Id.) The evidence at trial included testimony from the victim and a recorded phone call during which Petitioner “apologized to [the victim] as well as indicated that he was drunk at the time.'” (Id. at 15-16.)

         On May 16, 2016, the Arizona Court of Appeals issued an unpublished opinion affirming Petitioner's convictions and sentences. State v. Jackson, 2016 WL 2933049 (Ariz.Ct.App. 2016). The sole issue that Petitioner sought to raise in his direct appeal was whether the trial court should have granted a mistrial after Petitioner blurted out, during closing argument, that he'd spent two years in pretrial custody and was facing a life sentence if convicted of the charges. Id. at *1. The Court of Appeals concluded that “Defendant clearly invited the error complained of in this appeal. . . . Consequently, defendant has no basis for claiming the outburst infringed upon his right to a fair and impartial jury as error on appeal.” Id. at *2.

         On June 14, 2016, Petitioner received a letter from his appellate counsel (Wendy Mays) advising that “I am waiting for the Order of Mandate. Once I have that, I will be mailing that to you as well as your file. At that point you will have the opportunity to file a Petition for Post-Conviction Relief under Rule 32, should you choose to. I will send further instruction in that regards with the Order of Mandate.” (Doc. 9 at 33.)

         On July 7, 2016, the Arizona Court of Appeals issued its mandate. (Doc. 15 at 2.)

         On August 15, 2016, Petitioner received another letter from Mays. (Doc. 9 at 33.) In this letter, Mays disclosed to Petitioner that the mandate had already issued, apologized to Petitioner for not providing it earlier, informed Petitioner that a Rule 32 petition for post-conviction relief (“PCR”) ordinarily needs to be filed within 30 days of the issuance of the mandate, and thus instructed Petitioner that he needed to “immediately” file a PCR notice if he wished to pursue such relief:

Enclosed please find a copy of the . . . Mandate from the Court of Appeal[s] as well as the Memorandum decision that concludes the appeals process. . . . Your next avenue for relief is by filing a petition for post-conviction relief with the superior court under rule 32. I have enclosed the form you need to start that process. Should you wish to file for post-conviction relief, you must file a notice of post-conviction relief with the [superior court clerk] within 30 days of the issuance of the Mandate. Since I am mailing this to you after the deadline, I would immediately file the Notice of PCR as well as a request for leave to file it untimely and state that the reasons for doing so is that I was untimely in getting you the file. I will confirm that with the court if asked. I apologize. I was on vacation when the mandate issued and did not discover the oversight until today.

(Doc. 9 at 34, emphasis added.)

         On October 4, 2016-approximately 50 days after receiving this letter-Jackson filed a PCR notice with the superior court. (Doc. 15 at 2.)

         On October 20, 2016, the superior court dismissed the PCR notice as untimely because it hadn't been filed within 30 days of the issuance of the mandate. (Id. at 2-3.)

         Between October 31, 2016 and April 2017, Petitioner filed an array of motions in the superior court seeking to challenge the dismissal of his PCR notice. (Id. at 3-5.) These motions included several recusal motions directed at the judge and a filing from Mays, who claimed that the untimeliness of Petitioner's PCR notice was due to her failure to timely transmit the mandate to him in the summer of 2016. (Id.) The superior court issued an array of orders denying these motions, including an order on March 30, 2017 that affirmed the dismissal of the PCR notice. (Id.)

         On June 29, 2017, Petitioner filed a petition for review with the ...