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Harrison v. Ryan

United States District Court, D. Arizona

December 1, 2017

Everesto Harrison, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

          ORDER

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Pending before the court is a petition for writ of habeas corpus constructively[1] filed on March 31, 2017, by Everesto Harrison, an inmate currently held in the Arizona State Prison Complex in Eloy, Arizona. (Doc. 1, p. 15)

         Magistrate Judge Bowman presides over this case pursuant to 28 U.S.C. § 636(c). (Doc. 13)

         The petition will be dismissed. Claims (1) - (6) are time-barred. (Doc. 1) Claim (7) is not cognizable. (Doc. 1)

         Summary of the Case

         Harrison was convicted after a jury trial of “theft of a means of transportation, burglary, and possession of burglary tools.” (Doc. 16, p. 3) The trial court sentenced him to an aggregate term of imprisonment of twelve years. (Doc. 17, p. 3)

         Harrison filed a direct appeal in which he argued the trial court abused its discretion when it failed to strike a juror for cause. (Doc. 16, p. 3) On July 11, 2013, the Arizona Court of Appeals affirmed Harrison's convictions, but sua sponte vacated the trial court's criminal restitution order. (Doc. 16, pp. 3, 7) Harrison did not file a petition for review with the Arizona Supreme Court.

         More than one year later, on September 5, 2014, Harrison filed notice of post-conviction relief (PCR). (Doc. 16, p. 38) When PCR counsel filed notice that he was unable to find any meritorious issues, Harrison filed a petition pro se. (Doc. 16, pp. 46-47) The trial court dismissed the petition on November 24, 2015. (Doc. 17, p. 3) On May 26, 2016, the Arizona Court of Appeals granted review but denied relief. (Doc. 17, p. 18) On November 18, 2016, the Arizona Supreme Court denied his petition for review. (Doc. 17, p. 23)

         On March 31, 2017, Harrison constructively filed the pending petition for writ of habeas corpus. (Doc. 1) He claims (1) trial counsel was ineffective during plea negotiations, (2) appellate counsel was ineffective for failing to present all valid claims, (3) the appellate court erred when it denied Harrison's direct appeal, (4) evidence presented at trial was insufficient to support the convictions, (5) the trial court should have granted his motion in limine regarding the backpack containing the tools, (6) the police failed to collect and preserve fingerprint or DNA evidence, and (7) post-conviction relief (PCR) counsel was ineffective for filing an Anders brief. Id.; see, e.g., Anders v. California, 386 U.S. 738 (1967).

         On July 24, 2017, the respondents filed an answer arguing among other things that the petition is time-barred. (Doc. 15) Harrison did not file a reply.

         The respondents are correct; the petition is time-barred. The court does not reach the respondents' alternate arguments.

         Discussion

         The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, however, must be filed within the applicable limitation period or it will be dismissed. The statute reads in pertinent part as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...

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