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Rolon v. Ryan

United States District Court, D. Arizona

October 29, 2015

Alejandro Mora Rolon, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

BRIDGET S. BADE, Magistrate Judge.

Petitioner Alejandro Mora Rolon has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. (Doc. 1.) Respondents assert that the Petition should be dismissed as untimely under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which provides the statute of limitations applicable to state prisoners seeking federal habeas corpus relief. (Doc. 11 at 15-22.) Alternatively, Respondents argue that federal habeas corpus review of Petitioner's claims is procedurally barred. ( Id. at 22-26.) Petitioner has not filed a reply in support of his Petition and the time to do so has passed. (Doc. 8.) For the reasons below, the Court finds the Petition untimely, recommends that it be dismissed, and does not consider Respondents' alternative arguments.

I. Factual and Procedural Background

A. Charges, Trial, and Sentencing

On July 30, 1997, Petitioner was indicted in the Maricopa County Superior Court on one count of kidnapping (Count One), one count of molestation of a child (Count Two), and one count of sexual conduct with a minor (Count Three). (Doc. 11, Ex. D.) On September 26, 2000, a jury acquitted Petitioner on the kidnapping count, but found him guilty on the remaining two counts. (Doc. 11, Ex. E.) On November 1, 2000, the trial court found that Petitioner had a predicate felony conviction, and subsequently sentenced him to consecutive terms of thirty-three years' imprisonment on Count Two, and thirty-five years' imprisonment on Count Three. (Doc. 11, Ex. F.)

B. Direct Appeal

On November 7, 2000, Petitioner filed a notice of appeal in the Arizona Court of Appeals. (Doc. 11, Ex. H.) In his opening brief, Petitioner argued that the trial court violated the Due Process Clauses of the United States and the Arizona Constitutions by admitting evidence of sexual propensity, and that he was denied a fair trial due to prosecutorial misconduct. (Doc. 11, Ex. I.) On June 13, 2002, the appellate court affirmed Petitioner's convictions and sentences. (Doc. 11, Ex. M.)

On July 15, 2002, Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 11, Ex. O.) On October 29, 2002, the Arizona Supreme Court denied review. (Doc. 11, Ex. S.)

C. Post-Conviction Review

1. Withdrawn Notices of Post-Conviction Relief

On November 16, 2000, Petitioner filed a pro se notice of post-conviction relief in the trial court pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 11, Ex. G.) Because Petitioner had previously filed a direct appeal, which was still pending, on June 8, 2001, he moved to withdraw that notice. (Doc. 11, Ex. K.) The court granted that motion. (Doc. 11, Ex. L.)

On July 2, 2002, Petitioner filed another pro se notice of post-conviction relief in the trial court. (Doc. 11, Ex. N.) On September 16, 2002, Petitioner moved to dismiss the notice of post-conviction relief without prejudice because direct review was still pending. (Doc. 11, Ex. Q.) The court granted Petitioner's motion. (Doc. 11, Ex. R.)

2. First Post-Conviction Proceeding

On January 7, 2003, Petitioner filed a third notice of post-conviction relief to commence what the state court considered his first Rule 32 proceeding. (Doc. 11, Exs. T, BB.) On October 6, 2003, post-conviction counsel advised the court that she had reviewed the record and found no claim to raise in a Rule 32 petition. (Doc. 11, Ex. U.) On counsel's motion, the ...


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