Summary
concluding that a procedural ruling based on Rule 32.9(c) is adequate
Summary of this case from King v. RyanOpinion
No. CIV 03-1025-PHX-MHM (MS).
June 7, 2006
ORDER
Petitioner has filed a pro se Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging his criminal conviction on a plea of guilty on two counts of sexual conduct with a minor, class 2 felonies and dangerous crimes against children, entered in Maricopa County Superior Court, State of Arizona. (Doc. 13). Petitioner was sentenced to a mitigated sentence of 18 years on count one (sexual conduct with a minor) and to a consecutive term of lifetime probation on count four (attempted sexual conduct with a minor). The matter was referred to Magistrate Judge Morton Sitver who has issued a Report and Recommendation that recommends that the Amended Petition should be denied and dismissed with prejudice. (Doc.37). Petitioner has not filed an objection to the Report and Recommendation.
STANDARD OF REVIEW
The district court must review the Magistrate Judge's findings and recommendations de novo if objection is made but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). See 28 U.S.C. § 636(b)(1)(C) ("[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made").
DISCUSSION
The Court has considered the pleadings and documents of record in this case. Petitioner has raised several grounds for relief in his Amended Petition. These grounds are set forth in the Court's Order of June 14, 2004, and include jurisdictional grounds, a claim of violation of due process based on improperly obtained evidence, a challenge to the indictment, ineffective assistance of counsel and alleged prosecutorial misconduct. (Doc. 14). The record indicates that Petitioner confessed to the crimes involving the victim, his daughter who was approximately eleven years of age. At his guilty plea hearing, Petitioner stated that he had begun taking a prescribed anti-depressant medication on the preceding day. Petitioner stated that the medication did not affect his ability to understand what he had done. Petitioner indicated that he understood the range of sentencing for the offenses and that he wanted to plead guilty. Petitioner also withdrew his motion for a change of counsel. The state trial court accepted Petitioner's guilty plea.
The Magistrate Judge has recommended that the Amended Petition should be denied because Petitioner's Petition for Review filed with the Arizona Court of Appeals was untimely under Rule 32.9(c) of the Arizona Rules of Criminal Procedure and Petitioner did not present a valid reason to the Superior Court that would warrant suspending the deadline. Petitioner has not shown "cause" for the noncompliance and actual prejudice or that failure to review his claims will result in a "fundamental miscarriage of justice."
Accordingly,
IT IS ORDERED adopting the Magistrate Judge's Report and Recommendation (Doc. 37) in its entirety as the Order of the Court;
IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas Corpus is denied and dismissed with prejudice.