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Velasco v. Ryan

United States District Court, D. Arizona

February 9, 2016

Armin Calbo Velasco, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

JOHN Z. BOYLE, Magistrate Judge.

TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

Petitioner Armin Calbo Velasco has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. (Doc. 1.)

I. SUMMARY OF CONCLUSION

Petitioner's conviction became final on September 15, 2005, which was 35 days after the Arizona Court of Appeals affirmed his jury trial conviction and sentence. Petitioner's habeas deadline was statutorily tolled until post-conviction review ended on April 26, 2006. The instant petition was due April 27, 2007, absent equitable tolling, but it was not filed until April 23, 2015. Because there are no grounds for equitable tolling, the Court concludes that Petitioner's claims are untimely. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

II. BACKGROUND

a. Facts of the Crimes

The Arizona Court of Appeals found the following facts as true:[1]

Late in the evening of August 2, 2003, Appellant went to the victim's home and knocked loudly on the door. The knocking woke the victim's ten-year-old brother who had been sleeping on the couch. The victim's brother opened the door slightly. Appellant then pushed open the door and grabbed the victim's brother by the shirt and threw him behind the couch. Because he had a sore throat, the victim's brother did not yell out.
Appellant then went into the bedroom where the eight-year-old victim and her sister slept. After unzipping his pants, Appellant went to the victim's bed, moved the victim so that she laid across the width of the bed, and removed the victim's pants and underwear. Appellant then sexually touched and molested the victim. Appellant further proceeded to engage in sexual conduct with the victim. During this incident, the victim tried to get up, but Appellant was holding her legs down with his legs. Appellant signaled to the victim that she should be quiet and not tell anyone. The victim's sister, who was sleeping in the bed next to the victim, witnessed Appellant's conduct with the victim. Both the victim and her sister saw and recognized Appellant at the time because he was their aunt's boyfriend. As Appellant was leaving the house, the victim's brother also recognized him.

(Doc. 7-1, Ex. O, at 83-84.)

b. Charges, Convictions, and Sentencing of Petitioner

On March 10, 2004, after a five-day jury trial, Petitioner was convicted by a jury of "molestation of a child in the first degree, a class two felony and dangerous crime against children; sexual conduct with a minor under the age of twelve in the first degree, a class two felony and dangerous crime against children; kidnapping, a class two felony and dangerous crime against children; and burglary in the second degree, a class three felony." (Doc. 7-1, Ex. D, at 19; Doc. 7-1, Ex. O, at 82-83.)

On May 7, 2004, the court sentenced Petitioner to terms of 17 years' imprisonment for Count 1, life imprisonment without the possibility of parole for 35 years for Count 2 (consecutive to Count 1), 17 years' imprisonment for Count 3 (consecutive to Count 2), and 3.5 years' imprisonment ...


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