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Colson v. Ryan

United States District Court, D. Arizona

February 27, 2018

David Louis Colson, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          BRIDGET S. BADE UNITED STATES MAGISTRATE JUDGE.

         On April 24, 2017, Petitioner David Louis Colson filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 5.) On June 1, 2017, the Court dismissed the Petition with leave to amend. (Doc. 8.) On June 15, 2017, Petitioner filed a First Amended Petition, which the Court dismissed with leave to amend. (Docs. 9, 10.) On July 6, 2017, Petitioner filed a Second Amended Petition and a separate “statement of the case.” (Docs. 11, 12.) On July 17, 2017, the Court directed Respondents to answer portions of Grounds One, Three, and Five, and to answer Grounds Six, Seven, and Ten. (Doc. 13 at 6, 8.) The Court dismissed Petitioner's remaining claims. (Id. at 6, 8.) Respondents filed an answer asserting that the Second Amended Petition is untimely and, alternatively, that Petitioner's claims are procedurally barred from federal habeas corpus review. (Doc. 22.) Respondents also filed a motion to dismiss based on Petitioner's alleged false statements in a filing entitled “stipulations and admissions.”[1] (Doc. 35.) Petitioner filed a reply in support of his Second Amended Petition and a response to the motion to dismiss.[2] (Docs. 28, 38.) As set forth below, the Court recommends that the Second Amended Petition be denied, and that the motion to dismiss be denied as moot.

         I. Factual and Procedural Background

         A. Guilty Plea and Sentencing

         On February 7, 2013, Petitioner pleaded guilty in the Maricopa County Superior Court to one count of sexual conduct with a minor (Count One), and two counts of attempted child molestation (Counts Two and Three). (Doc. 22, Ex. A.) On May 8, 2013, the trial court sentenced Petitioner to twenty-seven years' imprisonment on Count One. (Doc. 22, Ex. C.) The court suspended the imposition of sentence on Counts Two and Three, and placed Petitioner on lifetime probation upon his physical release from custody. (Id.)

         B. Rule 32 Of-Right Proceeding

         On July 8, 2013, Petitioner filed a notice of post-conviction relief in the trial court to commence an “of-right” proceeding under Rule 32 of the Arizona Rules of Criminal Procedure 32.[3] (Doc. 22, Ex. D.) On March 11, 2014, appointed counsel filed a notice advising the court that, after reviewing the record, counsel could find no colorable claim for relief. (Doc. 22, Ex. E.) Petitioner then filed a pro se petition. (Doc. 22, Ex. A.) On March 7, 2016, the court found that Petitioner had failed to raise a colorable claim for relief, and denied the petition. (Id.) The record before the Court indicates that Petitioner did not seek review in the Arizona Court of Appeals. (Doc. 22 at 6; Doc. 28 at 10.)

         C. Other Post-Conviction Proceedings

         On May 10, 2016, Petition filed a petition for post-conviction relief, which the trial court treated as a notice of post-conviction relief under Rule 32. (Doc. 22, Ex. F.) On September 13, 2016, the court dismissed the notice as untimely and successive. (Id.)

         On April 24 and May 9, 2017, respectively, Petitioner filed a “petition for writ of habeas corpus” and a “notice of stipulated facts” in the trial court. (Doc. 22, Ex. G.) The court treated the filings as a single notice of post-conviction relief under Rule 32. (Id.) On May 30, 2017, the court dismissed the notice as untimely and successive. (Id.)

         In June 2017, Petitioner filed a “supplemental petition for writ of habeas corpus, ” and a request for preparation of the post-conviction record in the trial court. (Doc. 22, Ex. H.) The court treated the filings as a single notice of post-conviction relief. (Id.) On July 28, 2017, the court dismissed the notice as untimely and successive.

         D. Federal Petition for Writ of Habeas Corpus

         On July 6, 2017, Petitioner filed a Second Amended Petition for Writ of Habeas Corpus, and a separate “statement of the case, ” in this Court. (Docs. 11, 12.) Petitioner raises several claims for relief. (See Docs. 11, 12, 13.) As set forth below, the Court recommends that the Second Amended Petition be dismissed as untimely.

         II. Statute ...


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