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Barton v. Ryan

United States District Court, D. Arizona

May 10, 2019

Donald Gene Barton, Petitioner,
v.
Charles Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Eric J. Markovich United States Magistrate Judge

         Petitioner Donald Gene Barton filed a pro se Petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 on November 15, 2016.[1] (Doc. 1). Petitioner raises seven grounds for relief: (1) abuse of discretion by the trial court in applying Ariz. Rev. Stat. § 13-705; (2) Ariz. Rev. Stat. § 13-3553(A)(2) is unconstitutionally vague as applied to Petitioner’s case; (3) double jeopardy; (4) abuse of discretion by the trial court in applying Ariz. Rev. Stat. § 13-705, thereby denying the defense of res judicata; (5) Ariz. Rev. Stat. § 13-3553(A)(2) is overly vague and unconstitutional as applied to Petitioner’s case; (6) ineffective assistance of trial counsel; and (7) abuse of discretion by the trial court for refusing to hear Petitioner’s motion that Ariz. Rev. Stat. § 13-705 does not apply to his case. Respondents filed an Answer contending that the PWHC is untimely, and further that all of Petitioner’s claims are procedurally barred by lack of exhaustion or procedural default. (Doc. 8). Respondents further state that one of Petitioner’s claims is precluded by his guilty plea and that another claim is not cognizable on habeas review. Petitioner did not file a reply.

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. The undersigned finds that Petitioner’s PWHC is untimely and that Petitioner is not entitled to equitable tolling. Accordingly, the Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Plea and Sentencing

         On July 11, 2012, Petitioner pled guilty to sexual exploitation of a minor and attempted sexual exploitation of a minor in Cochise County Superior Court. (Ex. D). At sentencing, the trial court found both offenses to be dangerous crimes against children (“DCAC”) pursuant to the enhancement statute, Ariz. Rev. Stat. § 13-705. (Ex. F). Petitioner was sentenced to 20 years imprisonment followed by lifetime probation. Id.

         B. First Petition for Post-Conviction Relief

         On September 23, 2012 Petitioner initiated proceedings in Cochise County Superior Court for post-conviction relief (“PCR”). (Ex. G). On March 11, 2013, Petitioner’s appointed counsel filed a notice informing the court of her review of the record and stating that she found no colorable claims for relief, and requesting an extension of time for Petitioner to file a pro se petition. (Ex. H). On April 22, 2013, Petitioner filed a pro se petition alleging: (1) double jeopardy/multiple punishments for the same offense; (2) the trial court abused its discretion by applying Ariz. Rev. Stat. § 13-705 and denying the defense of res judicata; (3) the sexual exploitation of a minor statute is overbroad and vague; and (4) IAC of trial counsel. (Ex. J).

         On August 26, 2013 the trial court granted the state’s request for summary disposition and dismissed the petition for failure to state a claim upon which relief can be granted. (Ex. K). Petitioner did not file a petition for review with the Arizona COA.

         C. Second Petition for Post-Conviction Relief

         On September 24, 2013, Petitioner filed a writ of habeas corpus ad subjiciendum in Cochise County Superior Court.[2] (Ex. O).[3] On October 30, 2013 Petitioner filed a second petition for PCR. (Ex. M). Petitioner alleged that the trial court abused its discretion by applying Ariz. Rev. Stat. § 13-705 to designate his offenses as DCAC.

         On November 18, 2013 the trial court found that Petitioner failed to raise a colorable claim for relief and denied the petition. (Ex. N).

         On December 5, 2013 Petitioner filed a motion for reconsideration. (Ex. P). On December 10, 2013 the trial court denied Petitioner’s motion for reconsideration and his petition for writ of habeas corpus ad subjiciendum. (Ex. Q).

         On December 30, 2013 Petitioner filed a petition for review with the Arizona COA, arguing that the trial court failed to respond to his claims. (Ex. R). The Court of Appeals issued a memorandum decision on April 28, 2014, granting review and denying relief. (Ex. L). The court found that Petitioner’s claims were precluded because he either raised them or could have raised them in his first PCR petition. (Ex. L at ¶5) (citing Ariz. R. Crim. P. 32.2(a)(2), (3)). The court further noted that although Petitioner purported to raise a claim of newly discovered evidence, he did not articulate any argument failing within Ariz. R. Crim. P. 32.2(b). Id.

         D. Third Petition for Post-Conviction Relief

         On December 5, 2014 Petitioner filed a motion to dismiss the DCAC allegation in Cochise County Superior Court. (Ex. S).[4] On January 29, 2015, the court denied the motion, noting the State’s position that the claim had already been litigated up to the COA. (Ex. T).

         Petitioner filed a petition for review with the Arizona COA on April 11, 2015. (Ex. U). The Court of Appeals issued a memorandum decision on June 25, 2015 granting review and denying relief. (Ex. V). The court noted that although Petitioner purported to make claims pursuant to Rule 32.1(e) and (g), he had presented no new evidence and had not established a significant change in the law entitling him to relief. (Ex. V at ¶4). The court further found that Petitioner’s claims were untimely and precluded because they either were or could have been raised in a previous PCR proceeding. Id. at ¶5.

         Petitioner filed a petition for review with the Arizona Supreme Court on July 11, 2015,[5] which denied review on December 7, 2015. (Ex. W). The COA ...


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