United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. BOWMAN UNITED STATES MAGISTRATE JUDGE.
before the court is a petition for writ of habeas corpus
constructively 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)
pending is Soucy's motion to stay federal proceedings,
filed on the same day. (Doc. 3)
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).
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.
of the Case
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)
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.
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).
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)
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).
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
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)
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 ...