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Walton v. Ryan

United States District Court, D. Arizona

May 1, 2017

Frank Jermar Walton, Petitioner,
v.
Charles Ryan, et al., Respondents.

          ORDER

          Eric J. Markovich United States Magistrate Judge

         Petitioner Frank Jemar Walton filed a pro se Petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 on May 5, 2014.[1] (Doc. 1). Petitioner raises two grounds for relief: (1) ineffective assistance of counsel; and (2) due process violations. Respondents filed an Answer contending that the PWHC is untimely, and further that all of Petitioner's claims are unexhausted and procedurally defaulted and not cognizable on habeas review. Petitioner did not file a reply. The Court concludes that Petitioner's PWHC is untimely, and that Petitioner has not shown that he is entitled to statutory or equitable tolling. Accordingly, the petition will be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On August 22, 2012, Petitioner pled guilty in Pima County Superior Court to one count of aggravated assault with a deadly weapon/dangerous instrument. (Doc. 14 Ex. A). Petitioner was sentenced to five years imprisonment. (Doc. 14 Ex. C). In his sentencing memorandum, Petitioner described the facts of his crime as follows:

This incident arose out of a drunken Frank Walton walking down a residential street shooting a handgun up in the air. There was a confrontation with the victim who perceived that Frank was threatening him with the gun. Ultimately the victim shot at and wounded Frank with a shotgun. Frank never discharged his gun at either of the victims and no one but Frank was injured in this incident.

(Doc. 14 Ex. B at 1).

         Petitioner did not file a Rule 32 petition for post-conviction relief.[2]

         Petitioner deposited his PWHC in the prison mailing system on May 5, 2014. (Doc. 1). In Ground One, Petitioner claims that his counsel was ineffective for failing to investigate the police interview that took place after Petitioner underwent surgery and was on medication. Petitioner contends that counsel should have filed motions to have the charges dismissed based on Petitioner's condition during the interview and his improper waiver of his Miranda rights. In Ground Two, Petitioner alleges that his due process rights were violated when the detective misapplied Miranda, that he was not fully cognizant of his rights, and that his counsel did not file any motions.

         Respondents contend that the PWHC is untimely and that Petitioner has not shown that he is entitled to statutory or equitable tolling. (Doc. 14). Respondents further contend that Grounds One and Two of the Petition are unexhausted and procedurally defaulted and that Petitioner has not shown cause and prejudice or a fundamental miscarriage of justice to excuse his default. Respondents further allege that Petitioner's claims are not cognizable on federal habeas review. Respondents thus conclude that the PWHC is not properly before this Court for review and should be denied and dismissed with prejudice.

         II. STATUTE OF LIMITATIONS

         A. Timeliness

         As a threshold matter, the Court must consider whether Petitioner's PWHC is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). 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). Petitions for habeas corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244. The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations 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 time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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