Jones v. Ryan et al

Filing 28

ORDER that the 22 Report and Recommendation is accepted. The 1 Petition for Writ of Habeas Corpus is denied. A Certificate of appealability is denied. Signed by Judge David G Campbell on 05/02/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Arthur Stanley Jones,
Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

No. CV 09-926-PHX-DGC (JRI)
ORDER

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Petitioner Arthur Stanley Jones seeks a writ of habeas corpus pursuant to

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28 U.S.C. § 2254.

Doc. 1.

Magistrate Judge Jay R. Irwin filed a Report and

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Recommendation (“R&R”) that the motion and certificate of appealability be denied.

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Doc. 22. Petitioner objects to the R&R and does not request oral argument. Doc. 27. For

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the reasons that follow, the Court will accept the R&R and deny the motion.

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The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 636(b)(1).

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The Court must undertake de novo review of those portions of the R&R to which specific

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objections are made. See § 636(b)(1)(c); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003).

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Petitioner does not object to the R&R’s recitation of facts, and therefore the Court will

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adopt it summarily. Petitioner was convicted under Arizona law of 17 counts of sexual

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exploitation of a minor due to his possession of seventeen images of child pornography

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downloaded from the internet. Doc. 22 at 2. Petitioner was sentenced to 408 years in prison

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– i.e., 17 consecutive sentences of 24 years each – on January 3, 2000. Id. Petitioner filed

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two petitions for post-conviction relief in State court to no avail. Id. One of his arguments

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was that the prosecution failed to prove the pictures were of actual children as opposed to

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computer-generated or “morphed” images. Id. The Arizona Court of Appeals rejected the

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argument, noting that the pictures themselves were sufficient evidence and that Petitioner’s

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trial counsel had stipulated that they depicted children. Id. at 2-3. On April 30, 2009,

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Petitioner filed for habeas relief. Doc. 1.

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The R&R concluded that the habeas petition is time-barred under 28 U.S.C.

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§ 2244(d)(1) and that neither statutory tolling nor equitable tolling would save the petition.

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Doc. 22 at 5, 8-16. The R&R did not reach the exhaustion and procedural default issues in

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the case, nor did the R&R address the substantive merits of Petitioner’s seven constitutional

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claims.1 Id. at 4, 17. Petitioner makes several specific objections to the R&R: (1) the time

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at which his state conviction became final was incorrectly decided (Doc. 27 at 2-3); (2) he

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was delayed in discovering the factual predicate for his claims due to his status as an indigent

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pro se litigant, his lack of knowledge of the habeas statute of limitations, and the lack of a

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law library at his prison (id. at 4); (3) he is entitled to habeas relief due to a change in law

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that made the statute under which he was convicted unconstitutional (id. at 5-6); (4) he is

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entitled to statutory and equitable tolling because he was not aware of the one-year statute

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of limitations for habeas petitions, he is a pro se litigant, he was not given notice of timing

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requirements, and he exercised reasonable diligence upon learning of these requirements (id.

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at 17-23); and (5) his claim of actual innocence entitles him to a review on the merits (see

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id. at 23).
The Court has reviewed Petitioner’s arguments de novo in light of his specific

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Petitioner’s grounds for habeas relief are: (1) actual innocence and miscarriage of
justice; (2) sufficiency of the evidence; (3) Brady violation and miscarriage of justice;
(4) significant change in the law and unconstitutional conviction; (5) ineffective assistance
of counsel; (6) prosecutorial misconduct and omission of jury instructions; and (7) illegal
sentence. Doc. 22 at 4.
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objections. The Court has independently reached the conclusion that Petitioner’s arguments

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lack merit for the same reasons as presented in the well-reasoned R&R. Therefore, the R&R

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will be accepted.

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The Court also notes a key theme running through Petitioner’s objection: namely that

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State v. Hazlett, 73 P.3d 1258 (Ariz. App. 2003), changed Arizona law in such a way that

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Petitioner would not have been convicted had Hazlett been applied in his case. See Doc. 27.

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This is an argument on the merits of habeas relief. To qualify for a review on the merits,

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however, Petitioner must first establish that his petition was timely. 28 U.S.C. § 2244(d).

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Having accepted the R&R above, this Court holds that Petitioner has failed to submit a

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timely petition for habeas relief and has not established that his untimeliness is excusable.

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Accordingly, the petition for habeas relief will be denied as untimely. Moreover, a certificate

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of appealability will be denied because Petitioner has not made a substantial showing that

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denying the petition as untimely under these facts would deny him a constitutional right. 28

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U.S.C. § 2253(c)(2).

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IT IS ORDERED:

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The R&R (Doc. 22) is accepted.

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The petition for writ of habeas corpus (Doc. 1) is denied.

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A certificate of appealability is denied.

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DATED this 2nd day of May, 2011.

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