United States District Court, D. Arizona
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
REPORT AND RECOMMENDATION
BRIDGET S. BADE, District Judge.
David Alan Borggreen has filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. Â§ 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
Factual and Procedural Background
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.)
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.
First Post-Conviction Proceeding
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.)
Second Post-Conviction Proceeding
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.)
Other Post-Conviction Proceedings
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.)
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 ...