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Soucy v. Ryan

United States District Court, D. Arizona

July 13, 2017

Ryan Starr Soucy, Petitioner,
v.
Charles L. Ryan, Respondents.

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE.

         Pending before the court is a petition for writ of habeas corpus constructively[1] filed in this court on March 3, 2017, by Ryan Starr Soucy, an inmate currently held in the Arizona State Prison Complex in Eloy, Arizona. (Doc. 1, pp. 1, 11)

         Also pending is Soucy's motion to stay federal proceedings, filed on the same day. (Doc. 3)

         Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition and denying the motion. The petition is time-barred; a stay would be futile.

         Summary of the Case

         On January 11, 2011, Soucy pleaded guilty pursuant to a plea agreement to “theft by misrepresentation, aggravated assault of a peace officer, and three counts of possession of a dangerous drug.” (Doc. 21, pp. 29, 77) On February 8, 2011, the trial court sentenced him to “a total of 18.5 years in prison.” (Doc. 21, p. 29)

         Soucy filed notice of post-conviction relief (PCR), but appointed counsel was unable to find any meritorious issues to raise. (Doc. 19-7); (Doc. 19-8) (Notice of Review filed October 24, 2011) Soucy subsequently filed his own post-conviction relief (PCR) petition pro se. He raised sixteen ineffective assistance of counsel claims and four sentencing claims. (Doc. 21, pp. 29, 31, 39) The PCR court dismissed the petition on July 9, 2012. (Doc. 21, p. 42) His petition for review with the Arizona Court of Appeals was denied as untimely in September of 2012. (Doc. 23, p. 27); (Doc. 23, p. 43)

         On March 4, 2013, Soucy filed a second notice of post-conviction relief (PCR). (Doc. 23, p. 27) He filed his petition on May 8, 2013. (Doc. 22, p. 3) The PCR court acknowledged receipt of his petition on May 13, 2013. (Doc. 23, p. 27).

         On June 6, 2013, the Arizona Court of Appeals granted Soucy's motion to proceed with a delayed petition for review of his first PCR proceeding. (Doc. 23, p. 27); but see (Doc. 21, p. 73) (order dated June 10, 2013) The PCR court subsequently stayed Soucy's second PCR proceeding. (Doc. 23, p. 27)

         On September 11, 2013, the Arizona Court of Appeals issued an order granting review but denying relief. (Doc. 23, p. 27) Soucy did not file a petition for review with the Arizona Supreme Court. (Doc. 18, p. 3) Soucy subsequently filed a motion to withdraw the second petition, and on October 15, 2013, the PCR court dismissed the second petition “without prejudice.” (Doc. 22, pp. 23, 26) The Arizona Court of Appeals issued its mandate on November 5, 2013. (Doc. 23, p. 28) Ordinarily, a subsequent PCR notice must be filed within 30 days “after the issuance of the final order or mandate by the appellate court in the petitioner's first petition for post-conviction relief proceeding.” Ariz.R.Crim.P. 32.4(a).

         On April 16, 2014, Soucy constructively filed his third notice of post-conviction relief (PCR). (Doc. 22, pp. 28-30) Appointed counsel was unable to find any meritorious issues, so Soucy filed a petition pro se. (Doc. 22, pp. 35, 38) On June 24, 2015, the PCR court denied the petition as untimely and, in the alternative, meritless. (Doc. 23, pp. 3-12) (The PCR court erroneously referred to this proceeding as Soucy's “second.”).

         The PCR court denied Soucy's motion for reconsideration on August 28, 2015. (Doc. 23, p. 27) The court found that the third notice was not filed within 30 days of the order and mandate of the court of appeals and the claims in the third petition did not fall within Rule 32's “savings clause.” (Doc. 23, pp. 28-29) (citing Ariz.R.Crim.P. 32) The court rejected Soucy's argument that the PCR court had dismissed his second PCR petition but not his second PCR notice and his third petition dated back to his second PCR notice. Id. The court explained that when a petition is dismissed, the court need not explicitly dismiss the notice as well. (Doc. 23, p. 29)

         On March 1, 2016, the Arizona Court of Appeals granted review of the third PCR petition but denied relief. (Doc. 23, p. 42) The court adopted the PCR court's analysis of the timeliness issue. (Doc. 23, p. 45) The court further noted that the rules do not explicitly permit a dismissal “without prejudice” in the PCR context and warned against using that ...


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