Bassett v. Ryan
| Decision Date | 30 November 2021 |
| Docket Number | CV-19-8142-PCT-DLR (JFM) |
| Court | U.S. District Court — District of Arizona |
| Parties | Samuel Brett Westley Bassett, Petitioner v. Charles L. Ryan, et al., Respondents. |
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:
(Exh. R, Mem. Dec. 3/4/14 at ¶¶ 2-4.) (Exhibits to the Answer, Doc. 12, are referenced herein as “Exh. __.”)
B. PROCEEDINGS AT TRIAL
Petitioner was indicted in Yavapai County Superior Court on 41 counts. (Exh. A, Indict.) He proceeded to trial and was convicted on 11 counts of sexual exploitation of a minor, 2 counts of luring of a minor for sexual exploitation, and 27 counts of aggravated luring of a minor for sexual exploitation. The trial court sentenced Bassett to aggregate prison terms of 202 years. (Exh. N, Sentence; Exh. R, Mem. Dec. 3/4/14 at ¶ 5.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal and filed through counsel an Opening Brief (Exh. O), raising arguments of insufficient evidence, prosecutorial misconduct in argument, the statutes were void for overbreadth, and error in admitting expert opinion on age. The Arizona Court of Appeals rejected the claims on the merits and affirmed the convictions and sentences. (Exh. R, Mem. Dec. 3/4/14.)
Petitioner sought review (Exh. S) from the Arizona Supreme Court, who summarily denied review. (Exh. T, Order 11/7/14.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
While his Petition for Review by the Arizona Supreme Court was pending, Petitioner commenced a post-conviction relief proceeding by filing a PCR Notice (Exh U). Counsel was appointed who filed a PCR Petition (Exh. V) presenting various claims of ineffective assistance. The PCR court denied the claims on the merits. (Exh. Y, Order 1/8/16.)
Petitioner then filed through counsel a Petition for Review (Exh. Z) again arguing the evidentiary objections underlying the ineffective assistance claims. The Arizona Court of Appeals granted review, finding the substantive claims barred because they “were or could have been raised on direct appeal.” (Exh. BB, Mem. Dec. 10/31/17 at ¶ 4.) The claims of ineffective assistance were rejected as argued “improperly in cursory fashion.” (Id.)
Petitioner sought review by the Arizona Supreme Court (Exh. CC), which denied review on April 12, 2018 (Exh. DD).
The Arizona Court of Appeals issued its Mandate (Exh. BB) on May 14, 2018.
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 13, 2019 (Doc. 1). Petitioner's Petition asserts the following five grounds for relief:
In Ground One, Petitioner alleges that his First Amendment rights were violated, and that the evidence is insufficient to sustain his convictions. In Ground Two, Petitioner alleges that his Fifth Amendment rights were violated when the trial court denied his request for a Frye hearing and in allowing certain expert testimony. In Ground Three, Petitioner alleges that his Sixth Amendment rights were violated when a witness was allowed to give prejudicial testimony and when a detective testified about uncharged images. In Ground Four, Petitioner alleges that his Fifth and Sixth Amendment rights were violated when references were made to uncharged images. In Ground Five, Petitioner alleges that his attorney provided ineffective assistance.
(Service Order 6/28/19, Doc. 6 at 1-2.)
The undersigned designates the claims and subclaims as follows:
Response - On September 23, 2019, Respondents filed their Limited Answer (Doc. 12). Respondents argue: (a) the Petition is untimely and barred by the statute of limitations; (2) Ground Three and Four were procedurally barred as waived in the PCR proceeding; and (3) Ground Five was procedurally barred as conclusorily presented in the PCR proceeding.
Reply - On March 16, 2020, Petitioner filed a Reply (Doc. 22). Petitioner argues: (1) he is entitled to equitable tolling because he relied on advice from counsel that his habeas statute of limitations began running after May 14, 2018, when the mandate was issued in his PCR proceeding; (2) Grounds 3 and 4 were not procedurally defaulted, but were presented and ruled on by the Arizona Court of Appeals in the PCR proceeding, and are meritorious, and any failure to fairly present them was the fault of trial, appellate, and PCR counsel; and (3) Ground 5 is meritorious, and any procedural default should be excused as the fault of appellate and PCR counsel.
Supplemental Response - Respondents were directed to supplement their answer to address preliminary determinations that the statute of limitations had been sufficiently tolled to make the Petition timely, various claims were not procedurally barred by the state courts, the merits of Grounds 1 and 2, the procedural default of Grounds 3A2, 5A, 5B, 5C, 5D and 5G and cause and prejudice to excuse them, the adequacy of the procedural bar applied to Grounds 5E & 5F, and the merits of such claims. (Order 4/9/21, Doc. 23.)
Respondents filed their Supplemental Answer (Doc. 26) on June 1, 2021.
Respondents argue that the undersigned's preliminary analysis wrongly treats the mandate in the PCR proceedings as their termination, when the proper time is the Arizona Supreme Court's denial of review. Respondents argue: Ground 1 is without merit; Ground 2 is not cognizable on habeas and the state court properly resolved the claim; Ground 3A2 is procedurally defaulted; Petitioner cannot show cause and prejudice under Martinez to excuse the procedural default of Grounds 5A, 5B, 5C, 5D, and 5G; and Ground 5E and 5F are without merit.
Supplemental Reply - On August 24, 2021 Petitioner filed his Supplemental Reply (Doc. 29). Petitioner argues the timeliness of his filing, the merits of Grounds 3A1, 3A2, 3B, and 4, and the merits and applicability of Martinez to excuse the procedural defaults of Ground 5.
Respondents assert that Petitioner's Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed. Id.
The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).[1] Here, Petitioner's direct appeal remained pending at least through November 7, 2014, when the Arizona Supreme Court denied his Petition for Review. (Exhibit T.)
For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually...
To continue reading
Request your trial