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Ward v. Ryan

United States District Court, D. Arizona

October 15, 2018

Walter Thomas Ward, 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 filed on May 7, 2018, by Walter Thomas Ward, an inmate currently held in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1)

         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. It is time-barred.

         Summary of the Case

         On September 26, 2007, Ward was convicted after a jury trial of “multiple felony offenses including aggravated assault, kidnapping, armed robbery, and sexual assault of a minor under fifteen.” (Doc. 12-3, pp. 2-6); (Doc. 12-6, p. 3) On October 23, 2007, the trial court sentenced Ward to combined sentences of imprisonment totaling approximately 96 years. (Doc. 12, pp. 29-38)

         On direct appeal, Ward argued that the state failed to preserve evidence, the state violated his rights under Brady v. Maryland, his cross-examination of a state's witness was improperly limited, and the prosecution committed misconduct. (Doc. 12-10, p. 33) The Arizona Court of Appeals affirmed his convictions on May 20, 2009. (Doc. 12-10, p. 32) The Arizona Supreme Court denied review on July 21, 2009. (Doc. 12, p. 100)

         Ward filed notice of post-conviction relief (PCR) on September 2, 2009. (Doc. 12, p. 102) In his petition, he argued that the trial court improperly limited his counsel's closing argument to sixty minutes and erroneously excluded evidence of bad acts committed by the co-defendant after his arrest. (Doc. 13, p. 58) He further argued that trial counsel and appellate counsel were ineffective in their handling of those issues. Id. On March 9, 2010, the trial court denied the petition for post-conviction relief. (Doc. 13, p. 3) The Arizona Court of Appeals granted review but denied relief on July 9, 2010. (Doc. 13, p. 57)

         Approximately seven-and-one-half years later, on February 20, 2018, Ward filed a pro se petition for post-conviction relief (PCR). (Doc. 13, p. 64) He claimed (1) the “grand jury failed to invoke it[]s jurisdiction, ” (2) the “superior court failed to invoke it[]s jurisdiction, ” and further raised a (3) “claim of actual/factual innocence.” (Doc. 13, pp. 64-70) The trial court found Ward's claims to be precluded because they could have been raised on appeal or in his first petition for post-conviction relief. (Doc. 13, p. 76) Ward did not file a petition for review with the Arizona Court of Appeals. (Doc. 1, pp. 5-6)

         Ward filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 7, 2018. (Doc. 1) He claims (1) the “grand jury failed to invoke it[]s jurisdiction, ” (2) the “superior court failed to invoke it[]s jurisdiction, ” and further raises a (3) “claim of actual/factual innocence.” (Doc. 1) His claims are entirely conclusory without any explanation or factual support.

         On September 6, 2018, the respondents filed an answer arguing, among other things, that the petition is time-barred. (Doc. 10) Ward did not file a timely reply. The respondents are correct; the petition is time-barred.

         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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