United States District Court, D. Arizona
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16, 2016, the Arizona Court of Appeals issued an unpublished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
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