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Beltran v. Ryan

United States District Court, D. Arizona

January 31, 2018

Rosalio Delgado Beltran, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

          REPORT AND RECOMMENDATION

          Leslie A. Bowman United States Magistrate Judge.

         Pending before the court is a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed on December 29, 2016, by Rosalio Delgado Beltran, an inmate confined in the Arizona State Prison Complex in Phoenix, Arizona. (Doc. 1, p. 26); (Doc. 10)

         Pursuant to the Rules of Practice of this Court, this matter was referred to the Magistrate Judge for report and recommendation.

         The petition should be dismissed. It is time-barred.

         Summary of the Case

         Beltran was found guilty after a jury trial “of two counts of aggravated driving under the influence (DUI) and three counts of endangerment after he hit another vehicle from behind with his truck.” (Doc. 30, p. 47) The trial court sentenced Beltran to “concurrent ten-year prison terms on the DUI convictions and to time served for the endangerment counts.” Id.

         On direct appeal, Beltran argued the trial court erred when it denied his motion to suppress the results of the blood alcohol test because the arresting officer interfered with his right to counsel. (Doc. 30, pp. 35) The Arizona Court of Appeals affirmed his convictions and sentences on February 29, 2012. (Doc. 30, p. 46) The Arizona Supreme Court denied his petition for review summarily on May 23, 2012. (Doc. 30, p. 52)

         Previously, on May 20, 2011, Beltran filed notice of post-conviction relief (PCR). (Doc. 30, p. 54) On Beltran's motion, the trial court stayed the proceedings until the court of appeals issued its mandate in the direct appeal. (Doc. 30, p. 64) The mandate issued on July 18, 2012 and October 16, 2012. (Doc. 30-1, p. 5) On December 13, 2012, appointed counsel notified the court that he had reviewed the record but could find no colorable claims to raise in the PCR petition. (Doc. 30-10, p. 2) The trial court subsequently gave Beltran a deadline of February 11, 2013 to file a PCR petition pro se. (Doc. 31, p. 3) Beltran did not file a timely petition, and the trial court dismissed the notice of post-conviction relief on March 4, 2013. (Doc. 31, p. 6)

         Previously, on August 1, 2011, Beltran attempted to file in the Arizona Court of Appeals a document entitled Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. (Doc. 31, p. 8) The court of appeals transferred the petition to the Pima County Superior Court. (Doc. 31, p. 46) That court did not issue a ruling immediately. A copy of the petition was also filed with the Arizona Supreme Court, which dismissed the petition on October 21, 2011. (Doc. 31, p. 20)

         On November 18, 2011, Beltran filed with the Arizona Court of Appeals a Petition for Special Action. (Doc. 31, p. 22) On November 21, 2011, the court ordered him to file a copy of the ruling being challenged by the special action. (Doc. 31, p. 57) On January 11, 2012, the Arizona Court of Appeals declined to accept jurisdiction. (Doc. 31, p. 59) On March 22, 2012, the Arizona Supreme Court denied Beltran's petition for review. (Doc. 31, p. 62)

         On July 2, 2012, Beltran filed in this court his first federal petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (CV 13-014 TUC LAB; Doc. 1) Beltran raised four grounds for relief:

(1) He was denied the right to counsel in violation of the Sixth and Fourteenth Amendments when he was asked to submit to a blood alcohol test. The trial judge deciding the issue was not fair, and counsel's handling of the issue was ineffective.
(2) His Fourteenth Amendment due process rights were violated and he was denied his Sixth Amendment right to compulsory process and to confront witnesses when the trial court denied him the opportunity to introduce evidence that he was injured in his holding cell when a piece of the ceiling fell on his head and the ...

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