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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 ) ) ) ) ) ) ) ) ) ) Arthur Stanley Jones, Petitioner, 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. No. CV 09-926-PHX-DGC (JRI) ORDER 14 15 Petitioner Arthur Stanley Jones seeks a writ of habeas corpus pursuant to 16 28 U.S.C. § 2254. Doc. 1. Magistrate Judge Jay R. Irwin filed a Report and 17 Recommendation (“R&R”) that the motion and certificate of appealability be denied. 18 Doc. 22. Petitioner objects to the R&R and does not request oral argument. Doc. 27. For 19 the reasons that follow, the Court will accept the R&R and deny the motion. 20 The Court may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 636(b)(1). 22 The Court must undertake de novo review of those portions of the R&R to which specific 23 objections are made. See § 636(b)(1)(c); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 24 328 F.3d 1114, 1121 (9th Cir. 2003). 25 Petitioner does not object to the R&R’s recitation of facts, and therefore the Court will 26 adopt it summarily. Petitioner was convicted under Arizona law of 17 counts of sexual 27 exploitation of a minor due to his possession of seventeen images of child pornography 28 1 downloaded from the internet. Doc. 22 at 2. Petitioner was sentenced to 408 years in prison 2 – i.e., 17 consecutive sentences of 24 years each – on January 3, 2000. Id. Petitioner filed 3 two petitions for post-conviction relief in State court to no avail. Id. One of his arguments 4 was that the prosecution failed to prove the pictures were of actual children as opposed to 5 computer-generated or “morphed” images. Id. The Arizona Court of Appeals rejected the 6 argument, noting that the pictures themselves were sufficient evidence and that Petitioner’s 7 trial counsel had stipulated that they depicted children. Id. at 2-3. On April 30, 2009, 8 Petitioner filed for habeas relief. Doc. 1. 9 The R&R concluded that the habeas petition is time-barred under 28 U.S.C. 10 § 2244(d)(1) and that neither statutory tolling nor equitable tolling would save the petition. 11 Doc. 22 at 5, 8-16. The R&R did not reach the exhaustion and procedural default issues in 12 the case, nor did the R&R address the substantive merits of Petitioner’s seven constitutional 13 claims.1 Id. at 4, 17. Petitioner makes several specific objections to the R&R: (1) the time 14 at which his state conviction became final was incorrectly decided (Doc. 27 at 2-3); (2) he 15 was delayed in discovering the factual predicate for his claims due to his status as an indigent 16 pro se litigant, his lack of knowledge of the habeas statute of limitations, and the lack of a 17 law library at his prison (id. at 4); (3) he is entitled to habeas relief due to a change in law 18 that made the statute under which he was convicted unconstitutional (id. at 5-6); (4) he is 19 entitled to statutory and equitable tolling because he was not aware of the one-year statute 20 of limitations for habeas petitions, he is a pro se litigant, he was not given notice of timing 21 requirements, and he exercised reasonable diligence upon learning of these requirements (id. 22 at 17-23); and (5) his claim of actual innocence entitles him to a review on the merits (see 23 id. at 23). The Court has reviewed Petitioner’s arguments de novo in light of his specific 24 25 26 27 28 1 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. -2- 1 objections. The Court has independently reached the conclusion that Petitioner’s arguments 2 lack merit for the same reasons as presented in the well-reasoned R&R. Therefore, the R&R 3 will be accepted. 4 The Court also notes a key theme running through Petitioner’s objection: namely that 5 State v. Hazlett, 73 P.3d 1258 (Ariz. App. 2003), changed Arizona law in such a way that 6 Petitioner would not have been convicted had Hazlett been applied in his case. See Doc. 27. 7 This is an argument on the merits of habeas relief. To qualify for a review on the merits, 8 however, Petitioner must first establish that his petition was timely. 28 U.S.C. § 2244(d). 9 Having accepted the R&R above, this Court holds that Petitioner has failed to submit a 10 timely petition for habeas relief and has not established that his untimeliness is excusable. 11 Accordingly, the petition for habeas relief will be denied as untimely. Moreover, a certificate 12 of appealability will be denied because Petitioner has not made a substantial showing that 13 denying the petition as untimely under these facts would deny him a constitutional right. 28 14 U.S.C. § 2253(c)(2). 15 IT IS ORDERED: 16 1 The R&R (Doc. 22) is accepted. 17 2. The petition for writ of habeas corpus (Doc. 1) is denied. 18 3. A certificate of appealability is denied. 19 DATED this 2nd day of May, 2011. 20 21 22 23 24 25 26 27 28 -3-

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