Green v. Shinn

          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 ...