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Stewart v. Ryan

United States District Court, D. Arizona

September 3, 2019

Jenghiz K Stewart, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:

         Petitioner Jenghiz K. Stewart filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 14.)

         I. Summary of Conclusion.

         Petitioner raises four grounds for relief in his Petition alleging that his required registration as a sex offender is unconstitutional. (Id.) Petitioner's claims are untimely because he challenges a resentencing proceeding from 2014 and no statutory tolling applies. In 2018, Petitioner filed an unsuccessful habeas challenge to a probation revocation proceeding in 2015. Although that proceeding was timely regarding the 2015 probation revocation, it did not statutorily toll his limitations period regarding his 2014 resentencing. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         a. Facts of the Case.

         In May 1996, the State indicted Petitioner in the Maricopa County Superior Court, charging him with two counts of sexual conduct with a minor, and two counts of child molestation, class 2 felonies and dangerous crimes against children. (Doc. 21-1, Ex. A, at 3-5.) The presentence report summarized the facts of Petitioner's crimes as follows:[1]

Between March 1, 1996 and April 1, 1996, [Petitioner] forced the fourteen-year-old victim [A.U.] to masturbate [Petitioner's] penis, allow [Petitioner] to perform oral sex on [the victim] and to have sexual intercourse with the victim. [Petitioner] was the apartment manager for the apartments in which the victim and his family resided. Prior to the molestation, [Petitioner] had befriended the victim and hired him to walk his dog. On one occasion the victim was sleeping at [Petitioner's] apartment. When [the victim] woke up, he found [Petitioner] stroking his penis. At this time [Petitioner] forced the victim to allow him to perform oral sex which lasted about ten minutes until the victim ejaculated. On another occasion [Petitioner] had forced the victim to lay on his back while [he] sat on [the victim's] penis and moved up and down. After the oral sex incident [Petitioner] told the victim if he were to tell anybody [Petitioner] would evict him and his family. The molestation took place several times between March 1 and April 1 of 1996.
[Petitioner] admitted to having sex with [the] fourteen-year-old boy on several occasions. The sex consisted mostly of oral sex but on one occasion [Petitioner] attempted penile penetration. There was also a lot of fondling during this time. [Petitioner] advised there was no force involved and that “we wanted to have sex”. [Petitioner] admitted full responsibility and culpability for the offense and stated he took the plea-agreement so the victim would get the help he needs. He does not want to see the victim end up in jail like himself.

(Doc. 21-1, Ex. D, at 18.)

         In April 1998, Petitioner pleaded guilty pursuant to a plea agreement to one count of Sexual Conduct with a Minor, and one count of Attempted Molestation of a Child. (Doc. 21-1, Ex. C, at 14-16.) Before entering into the agreement, Petitioner acknowledged that he understood the guilty plea would subject him to a prison term ranging from 17 to 20 years' imprisonment for Count One, and lifetime probation for Count Two. (Doc. 21-1, Ex. B, at 7, 10.) On July 31, 1998, Petitioner was sentenced to 17 years of imprisonment for Count One and lifetime probation for Count Two, in accordance with the terms of the plea agreement. (Doc. 21-1, Ex. E, at 31-36.)

         b. Petitioner's Early PCR Proceedings and First Habeas Petition.

         Between 1998 and 2003, Petitioner pursued relief in multiple post-conviction proceedings in state court, which were all denied and dismissed. (Doc. 21 at 4.) In 2003, Petitioner challenged the 1998 judgment in his first federal habeas proceeding, Stewart v. Ryan, CV-03-00322-PHX-DGC. On April 21, 2004, the Court denied and dismissed Petitioner's first petition as untimely. See Stewart v. Ryan, CV-03-00322-PHX-DGC, Docket Entry 15 (D. Ariz. Apr. 21, 2004).

         c. Sentence Modification under Peek and ...


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