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Borggreen v. Ryan

United States District Court, D. Arizona

June 14, 2016

David Alan Borggreen, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          David Alan Borggreen, Petitioner, Pro Se.

          Charles L Ryan, Respondent, represented by Andrew Stuart Reilly, Office of the Attorney General.

          Attorney General of the State of Arizona, Respondent, represented by Andrew Stuart Reilly, Office of the Attorney General.

          REPORT AND RECOMMENDATION

          BRIDGET S. BADE, District Judge.

         Petitioner David Alan Borggreen has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In their answer, 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. 20.) Alternatively, Respondents argue that Petitioner's claims are not cognizable on federal habeas corpus review and that review of Ground One is procedurally barred. Petitioner has filed a reply in support of his Petition. (Doc. 21.) As set forth below, the Court finds Ground One untimely and finds that Ground Two does not assert a claim that is cognizable on federal habeas corpus review.

         I. Factual and Procedural Background

         In April 1997, the State of Arizona charged Petitioner with the following offenses: (1) two counts of molesting a child, class two felonies and dangerous crimes against children (Counts One and Two); (2) one count of sexual conduct with a minor, a class two felony and dangerous crime against children (Count Three); and (3) indecent exposure, a class six felony (Count Four). (Doc. 20, Ex A.) On the State's motion, the trial court dismissed Count Two. (Doc. 20, Ex. B at 1.) Following a trial, the jury found Petitioner guilty of Counts One and Four. (Doc. 20, Ex. C at 2.) The jury could not reach a unanimous verdict on Count Three, and the trial court declared a mistrial as to that count. ( Id. at 1.) Petitioner later pleaded guilty to a reduced charge of attempted sexual conduct with a minor, as an amended Count Three. (Doc. 20, Ex. D.) On January 20, 1998, the trial court sentenced Petitioner to consecutive terms of imprisonment totaling eighteen years' imprisonment on Counts One and Four, and lifetime probation for amended Count Three. (Doc.20, Ex. E.) The court stated that the lifetime term of probation "commenc[ed] January 20, 1998." ( Id. at 5.)

         B. Direct Review

         Petitioner appealed his convictions and sentences to the Arizona Court of Appeals, arguing that the trial court improperly instructed the jury on the State's burden of proof. (Doc. 20, Ex. F at 3-5.) The court of appeals rejected Petitioner's argument and affirmed his convictions and sentences on December 10, 1998. ( Id. at 1, 5.) Petitioner did not seek review in the Arizona Supreme Court.

         C. Post-Conviction Review

         1. First Post-Conviction Proceeding

         On March 14, 2000, Petitioner filed a notice of post-conviction relief in the trial court pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 20, Ex. G.) The court appointed Petitioner counsel. (Doc. 20, Ex. H at 2.) Post-conviction counsel notified the court that he was "unable to raise any viable issues" in a petition. (Doc. 20, Ex. I.) The trial court granted Petitioner an extension of time to file a pro se petition. (Doc. 20, Ex. J.) Petitioner did not file a petition and the court dismissed the post-conviction proceeding. (Doc. 20, Ex. K.) On Petitioner's motion, the trial court subsequently reinstated the post-conviction proceeding and gave Petitioner another extension of time to file a pro se petition. (Doc. 20, Ex. L.) Petitioner again failed to file a petition, and the court dismissed the proceeding on February 11, 2002. (Doc. 20, Ex. M.)

         2. Second Post-Conviction Proceeding

         On May 7, 2003, Petitioner filed a second notice and petition for post-conviction relief. (Doc. 20, Exs. N, O.) The court dismissed the proceeding as untimely and for failing to state a colorable claim. (Doc. 20, Ex. P.) Petitioner filed a motion for rehearing, which the superior court denied. (Doc. 20, Exs. Q, R.) Petitioner filed a petition for review with the Arizona Court of Appeals, which the court denied on June 20, 2004. (Doc. 20, Ex. S.)

         3. Other Post-Conviction Proceedings

         In 2008, the Arizona Supreme Court held that a defendant could not be sentenced to lifetime probation for attempted dangerous crimes against children committed between January 1, 1994 and July 20, 1997. See State v. Peek, 195 P.3d 641, 642-43 (Ariz. 2008). Accordingly, the Adult Probation Office petitioned the trial court to modify Petitioner's probation to comply with Peek. (Doc. 20, Exs. T and U.) On November 9, 2009, the court granted the petition and issued an order modifying Petitioner's probation to a term of five years. (Doc. 20, Ex. V.) The court stated that Petitioner "will serve five years' probation beginning from January 20, 1998, with an amended probation termination date to be determined." (Doc. 20, Ex. T.)

         On April 15, 2011, Petitioner filed a motion to modify or set aside an illegal probationary term. (Doc. 20, Ex. W.) Petitioner asked the court to impose a five-year term of probation for his conviction for attempted sexual conduct, rather than the lifetime term of probation that was originally imposed. ( Id. ) On May 9, 2011, the court issued a minute entry stating that "[p]ursuant to the 11/5/2009 minute entry, this issue has been addressed ...


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