United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE
TO THE
HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT
JUDGE:
This
matter is on referral pursuant to Rules 72.1 and 72.2 of the
Local Rules of Civil Procedure for further proceedings and a
report and recommendation. On October 11, 2018[1], Petitioner
Herman Lee Green, Sr. (“Petitioner” or
“Green”), who is confined in the Arizona State
Prison Eyman-Cook Unit in Florence, Arizona, filed a pro
se Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody (Non-Death
Penalty) (“Petition”). (Doc. 1)[2] Respondents filed
a Limited Answer. (Doc. 19) Petitioner did not file a Reply.
This matter is ripe for decision. For the reasons set forth
below, the undersigned Magistrate Judge recommends that this
Court dismiss the Petition with prejudice as untimely and
deny a certificate of appealability.
I.
BACKGROUND
A.
Convictions and Sentences
The
Arizona Court of Appeals provided a brief description of the
events underlying Petitioner's arrest and indictment in
its September 2013 memorandum decision affirming his
convictions and sentences.[3] (Doc. 20 at 78-91) The court of appeals
explained that:
[a]fter a jury trial, Herman Green Sr. was convicted of
forty-one felony offenses involving acts of sexual and
physical abuse. The trial court sentenced him to consecutive
prison terms, including six life sentences. . . .
In September 2010, then fourteen-year-old S.G. called 9-1-1
and reported that her father, Green, had been “having
sex with [her] for over nine years” and “harm[ed
her and her siblings] a lot.” After an investigation,
Green was charged by indictment with three counts of child
molestation, fifteen counts of sexual conduct with a minor,
two counts of aggravated assault, twenty-two counts of child
abuse, three counts of sexual abuse, and one count of
indecent exposure. Twenty-two of those counts related to
S.G., and the remaining counts related to her three siblings.
At the state's request, the trial court dismissed the
indecent exposure count, two counts of child abuse, and one
count each of child molestation and sexual conduct. The jury
found Green guilty of the remaining charges, and the court
sentenced him as described above.
(Doc. 20 at 79)
B.
Appeal and PCR Proceedings
Petitioner
was sentenced on June 18, 2012. (Doc. 20 at 3-37) Through
counsel, Petitioner filed a Notice of Appeal on June 28,
2012. (Id. at 39) On appeal, Petitioner's
appellate counsel argued two grounds for relief, alleging
that the trial court had erred: (1) by denying
Petitioner's request for a new trial after the jury
viewed part of a video-recorded witness interview during
deliberations that was not admitted into evidence; and (2) by
denying Petitioner's request for appointment of a mental
health expert to support his defense of guilty but insane.
(Id. at 42, 52-74) As noted, the Arizona Court of
Appeals rejected Petitioner's arguments and affirmed his
convictions and sentences. (Id. at 78-91) The
Arizona Supreme Court summarily denied Petitioner's
Petition for Review (Id. at 93), and the court of
appeals issued its mandate on May 7, 2014. (Id. at
95)
C.
Post-Conviction Relief Action
Petitioner
filed a Notice of Post-Conviction Relief (“PCR”)
on June 28, 2012, while his direct appeal was still pending.
(Doc. 20 at 99-103) Counsel for Petitioner moved for a stay
until completion of appellate proceedings. (Id. at
108) The superior court ordered Petitioner's PCR action
stayed “pending the decision of the Court of
Appeals.” (Id. at 111) After the court of
appeals issued its mandate in May 2014, the superior court
gave Petitioner until December 15, 2014 to file his PCR
Petition (Id. at 37), and subsequently granted
Petitioner's motion for appointment of counsel and
extended his filing deadline (Id. at 43). After
extensions of the filing deadline, Petitioner's appointed
counsel filed her Notice of No. Colorable Claims for
Post-Conviction Relief [Under] Rule 32.4(c)(2) on February
12, 2016. (Doc. 21 at 46-58) Counsel advised the superior
court she had conducted a thorough review of the record but
had been “unable to find any colorable claim of
ineffective assistance of counsel or any other viable claim
of error.” (Id. at 50) On February 19, 2016,
the superior court gave Petitioner until May 31, 2016, to
file his PCR petition pro per. (Id. at 60)
In
March 2016, Petitioner moved the superior court for discovery
of DNA testing of bedsheets and to appoint an investigator.
(Doc. 22 at 3-8) The court denied Petitioner's motions.
(Id. at 10) The superior court granted
Petitioner's subsequent motion for an extension of time
to file his PCR petition, giving him a new deadline of July
28, 2016. (Id. at 31)
In his
timely PCR petition, Petitioner alleged: (1) he had been
denied his constitutional right to represent himself at trial
(Id. at 38-41); (2) the superior court erred in
denying his motion for a mistrial due to the jury having
viewed part of a witness interview tape (Id. at
51-57); and (3) the prosecution withheld evidence related to
Petitioner's request for testing of Petitioner's
bedsheets (Id. at 22-24). Petitioner also alleged
several claims of ineffective assistance of trial counsel,
arguing counsel was constitutionally ineffective for: (1) not
asserting a challenge pursuant to Batson v.
Kentucky, 476 U.S. 79 (1986) (Id. at 42-44);
(2) not cross-examining key witnesses, who were
Petitioner's children and alleged victims, to reveal
inconsistencies in their testimony (Id. at 45-50);
(3) not arguing a Brady claim related to testing of
Petitioner's bedsheets (Id. at 22-24); and (4)
for not requesting a trial continuance after he was appointed
a month prior to trial (Id. at 61-64).
On
November 1, 2016, the superior court ruled. The superior
court found that each claim Petitioner had raised was either
“precluded as having been previously ruled upon or
untimely filed, ” or that the “Petition lacks
sufficient basis in law and fact to warrant further
proceedings herein and no useful purpose would be served by
further proceedings[.]” (Doc. 23 at 29)[4]
Petitioner
filed a petition for review with the Arizona Court of Appeals
on February 16, 2017. (Id. at 31-37) The court of
appeals ordered that the petition for review be dismissed as
“not timely filed within the thirty (30) day time limit
in accordance with Ariz. R. Crim. P. 32.9.”
(Id. at 47) Petitioner then filed a motion to
reconsider in the Arizona Court of Appeals of its dismissal
of his petition for review. (Id. at 47) The court of
appeals denied Petitioner's motion to reconsider and
stated that its order was “without prejudice to him
requesting an extension of time from the trial court to file
his petition for review.” (Id. at 49)
The
Arizona Supreme Court denied Petitioner's petition for
review without comment on November 6, 2017. (Doc. 24 at 3)
The Arizona Court of Appeals ...