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Brumm v. Ryan

United States District Court, Ninth Circuit

June 27, 2013

Thomas David Brumm, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

STEVEN P. LOGAN, Magistrate Judge.

TO THE HONORABLE ROSLYN O. SILVER, CHIEF UNITED STATES DISTRICT JUDGE:

Petitioner Thomas David Brumm, who is confined in the Arizona State Prison Complex-Eyman, Cook Unit, in Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).[1]

BACKGROUND

On May 12, 1995, Petitioner was indicted by a grand jury in the Maricopa County Superior Court ("Superior Court"), Case No. CR XXXX-XXXXX, on three counts of molestation of a child. (Doc. 19-1, Exh. A.) Pursuant to two plea agreements (Doc. 19-1, Exh. B, C), on November 1, 1995, Petitioner pled guilty to two amended counts of attempted molestation of a child, both dangerous crimes against children. (Doc. 19-1, Exh. D.) On March 8, 1996, the Superior Court sentenced Petitioner to a term of 10 years' imprisonment for one count, and lifetime probation for the other, suspending imposition of sentence. (Doc. 19-2, Exh. F.) As a term of probation, Petitioner was sentenced to comply with sex offender conditions, commencing the first day of the second month following his release from incarceration. (Doc. 19-2, Exh. G.)

Petitioner was released and commenced probation on or about December 8, 2005. (Doc. 19-2 at 23, Exh L; Exh. 20-1 at 14.) On October 4, 2006, the State of Arizona ("State") filed a Petition to Revoke Probation (Doc. 19-2, Exh. I). Petitioner entered an admission to a violation of probation (Doc. 19-2, Exh. K), and on November 27, 2006, the Superior Court revoked Petitioner's probation and sentenced him to a term of 10 years' imprisonment. (Doc. 19-2, Exh. M.)

On November 17, 2009, Petitioner filed a pro se Notice of Post-Conviction Relief under Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 19-2, Exh. O.) On or about January 14, 2010, Petitioner filed a pro per Petition for Post-Conviction Relief. (Doc. 1-1 at 3-26.) The Superior Court issued an order dismissing the petition on January 27, 2010. (Doc. 19-2, Exh. P.) Petitioner moved for rehearing of the decision. (Doc. 19-2, Exh. Q.) The Superior Court denied his request on February 17, 2010. (Doc. 19-2, Exh. R.) On March 16, 2010, Petitioner filed a Petition for Review (Doc. 19-2, Exh. S), which the Arizona Court of Appeals ("Appellate Court") denied on August 22, 2011 (Doc. 19-2, Exh. V). Petitioner then sought review of the Appellate Court's decision on September 6, 2011. (Doc. 19-2, Exh. W.) On January 5, 2012, that Petition for Review was summarily denied by the Arizona Supreme Court. (Doc. 19-2, Exh. X.)

Petitioner filed the instant Petition for Writ of Habeas Corpus on May 22, 2012. (Doc. 1.) Respondents have filed an Answer (Doc. 19 and 20), and Petitioner has filed a Reply (Doc. 22).

DISCUSSION

In the Petition for Writ of Habeas Corpus, Petitioner alleges one ground for relief. He contends that his Fifth, Thirteenth, and Fourteenth Amendment rights were violated by the imposition of lifetime probation. Respondents contend that Petitioner's habeas petition is time-barred. Alternatively, Respondents argue that Petitioner failed to exhaust his state-court remedies and his claims are procedurally barred. For the reasons that follow, the Court finds that the habeas petition is barred by the statute of limitations, and will therefore recommend that it be denied on that basis.

I. Legal Standard

The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a State court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").[2] 28 U.S.C. § 2244. The AEDPA imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244. The statute provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...

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