Jones v. Shinn
| Decision Date | 20 August 2021 |
| Docket Number | CV-19-5258-PHX-DJH (JFM) |
| Parties | Craig Murray Jones, Petitioner v. David Shinn, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
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. In addition, Petitioner has filed a Motion for Release or in the alternative Appointment of Counsel (Doc. 17). 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.
Petitioner was investigated on allegations of sexual abuse of minors, i.e. two of his daughters and one of their cousins. In the ensuing investigation, Petitioner made incriminating statements, and had a camera with a nude photo of one of the victims.
On November 12, 2013 Petitioner was indicted[1] in Maricopa County Superior Court on 25 counts, including charges of molestation, aggravated assault, attempted molestation, furnishing obscene materials, sexual conduct with a minor, sexual abuse, child abuse, attempted sexual conduct with a minor, sexual exploitation, public sexual indecency, attempted public sexual indecency, and indecent exposure. (Exh. A, Indictment.)[2]
After various attempts at self-representation, Petitioner proceeded to trial with counsel and was convicted on “five counts of molestation of a child; four counts of furnishing harmful items to minors; three counts of sexual conduct with a minor; two counts each of attempted molestation of a child and child abuse; and one count each of sexual abuse, attempted sexual conduct with a minor, indecent exposure, and aggravated assault.” (Exh. EE, Mem. Dec. 8/16/16 at ¶ 1.) Petitioner was sentenced to an aggregate term of 114 years in prison. (Id. at ¶ 3; Pet. Att. A, Sentence 5/29/15 (Doc. 1 at 6.).)
On the date of sentencing Petitioner received a copy of a Notice of Rights of Review (Exh. S-3) identifying the deadlines for petitions for post-conviction relief.
Petitioner filed a direct appeal through counsel, arguing error in: (1) terminating Petitioner's self-representation; (2) admission of hearsay; (3) determining concurrent sentences; (4) determining consecutive sentences; and (5) amendment of one count.
On August 16, 2016, the Arizona Court of Appeals vacated the conviction and sentence on the amended count but affirmed the remaining convictions and sentences. (Exh. EE, Mem. Dec. 8/16/16 at ¶ 44.) On August 20, 2016, the Arizona Department of Corrections received mail for Petitioner from the Arizona Court of Appeals. (Exh. PS-FF, Mail Log at 39 (Doc. 18 at 60).)[3]
No motion for reconsideration or petition for review was filed, and on September 30, 2016, the court issued its Mandate (Exh. EE).
On that same date, appellate counsel Brown forwarded to Petitioner “his entire file, ” including 26 volumes of Reporters Transcripts from 2013, 2014 and 2015. The prison mail logs provided by Petitioner do not list any mail from appellate counsel (or any counsel) between September 28, 2016 and November 1, 2016. (Exh. PS-FF, Mail Log at 40-43 (Doc. 18 at 61-64).) The prior mail from appellate counsel was received on May 12, 2016. (Id. at 34 (Doc. 18 at 56).) The next mail form appellate counsel was received on June 22, 2017. (Id. at 58 (Doc. 18 at 79).)
In October 2016, Petitioner wrote to the Clerk of the Arizona Court of Appeals requesting copies of the transcripts and the state's answering brief. (Exh. PS-GG, Affidavit of Pet. at ¶ 6(B), (Doc. 18 at 117).) The Clerk responded on October 18, 2016 advising Petitioner on (and seeking payment of) the copying fees. (Pet. Exh. Q.) Petitioner received mail from the Arizona Court of Appeals on October 20, 2016. (Exh. PS-FF, Mail Log at 41 (Doc. 18 at 62).)
First Pre-PCR Filing - In the interim, on October 13, 2016, Petitioner purports to have filed with the trial court a “Notice and Request for Court Record” (Pet. Exh. R (Doc. 1 at 257)), asserting that appellate counsel had “abandoned” Petitioner by failing to provide the answering brief on appeal and any reply brief, and that on October 3, 2016 Petitioner had received the appellate court Mandate. Petitioner requested copies of the briefs, memorandum decision and trial transcripts.
Special Action - On October 26, 2016 Petitioner filed a Petition for Special Action with the Arizona Supreme Court, asking for a stay of the mandate to allow Petitioner to file a motion for reconsideration or petition for review, as well as copies of various records. (Exh. P-R (Doc. 1 at 289); Pet. Affid. Doc. 18 at 117, ¶ 6(D) (showing mailing on October 24, 2016.) On February 7, 2017, the Arizona Supreme Court declined jurisdiction over the Petition for Special Action. (Exh. P-II, Doc. 18 at 139, Docket Case M-16-0068.)
Pinal County Habeas - On October 19, 2016 Petitioner attempted to file a state petition for writ of habeas corpus with the Pinal County Superior Court. After it was returned for lack of a civil cover sheet, Petitioner resent it on November 15, 2016. (Pet. Affid., Doc. 18 at 117-119, ¶¶ 6(C) and 6(I). The Petition was returned unfiled on December 2, 2016 as an improperly filed Rule 32 PCR petition, which was required to be filed with the trial court in Maricopa County. (Exh. P-II, Doc. 18 at 143, Letter 12/2/16.)
Arizona Supreme Court Habeas - On October 28, 2016 Petitioner filed a state petition for writ of habeas corpus with the Arizona Supreme Court, which was summarily dismissed on January 24, 2017 as an improper Rule 32 PCR proceeding. (Exh. P-II, Doc. 18 at 140, Docket Case HC-16-0018.)
Second and Third Pre-PCR Filing - On February 6, 2017, Petitioner filed with the trial court a Notice of Inability to Proceed with Post-Conviction Relief (Exh. P-R, Doc. 1 at 296) requesting from the court copies of records from the appeal (responsive brief, reply brief, memorandum decision) and transcripts.
On June 23, 2017, a second “Request for Documents” was filed with the trial court. The court granted the request for copies of the appellate decision and mandate, and directed copies of the order to counsel so they would be aware of the request. (Exh. FF, M.E. 7/7/17.)
On July 20, 2017, trial counsel Lauritano forwarded her file to Petitioner, but denied having any transcripts. The prison mail log reflects multiple items of mail from trial counsel on July 20, 2017. (Exh. PS-FF, Mail Log at 62 (Doc. 18 at 83).)
On July 27, 2017, Petitioner filed a Request for Order, complaining that several of his trial counsel and appellate counsel had not responded. Petitioner requested an Order requiring counsel to provide their files. (Exh. P-R, Doc. 1 at 302.)
First PCR Proceeding - Almost 20 months later, on March 21, 2019, Petitioner filed a Notice of Post-Conviction Relief (Exh. GG, Exh. R-A) and an Affidavit in Support (Exh. R-A).[4] The PCR court summarily dismissed the proceeding on the basis that it was untimely, and the purported excuse for its untimeliness was insufficient, and the claims asserted not permitted in an untimely proceeding. (Exh. HH, M.E. 4/15/19.)
Petition - Over five months later, on September 23, 2019, 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 (Doc. 1).[5] Petitioner's Petition asserts on constitutional bases the following ten grounds for relief:
(Order 12/17/19, Doc. 6 at 2-3.) Petitioner argues appellate counsel abandonment as a basis for avoiding the statute of limitations.
Response - On March 12, 2020, Respondents filed their Limited Answer (“Answer”) (Doc. 14). Respondents argue the petition is untimely, and Grounds 2 through 10 are procedurally defaulted.
Reply - On April 20, 2020, Petitioner filed a Reply (Doc. 16). Petitioner argues cause for any procedural default, and equitable tolling of the statute of limitations based on the abandonment of appellate counsel, and lack of access to the record.
Petitioner was granted leave to supplement the record with various records attached to his Motion to Expand Record (Doc. 18). (Order 4/26/21, Doc. 19.)
Supplemental Answer - The Court observed that Respondents had not addressed Petitioner's assertion in the reply that any untimeliness or procedural default resulted from lack of access to the record, and a variety of state post-conviction proceedings identified by the Reply with potential impact on the procedural defenses. Respondents were directed to supplement the record and their Answer. (Order 4/26/21, Doc. 19.)
On June 14, 2021, Respondents filed their Supplemental Answer (Doc 22...
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