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Lundeen v. Ryan

United States District Court, D. Arizona

March 13, 2019

Shayne Patrick Lundeen, Petitioner,
v.
Charles 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 June 18, 2018, by Shayne Patrick Lundeen, who challenges a judgment of conviction entered by the Pima County Superior Court. (Doc. 1); (Doc. 22, pp. 13-15)

         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

         Lundeen was convicted after a jury trial of two counts of aggravated assault with a deadly weapon/dangerous instrument. (Doc. 22, pp. 13-15) On September 3, 2013, the trial court sentenced Lundeen to concurrent five-year sentences of incarceration to be followed by a term of community supervision. (Doc. 22, pp. 13-15)

         On direct appeal, Lundeen argued his convictions were multiplicitous and violated double jeopardy. (Doc. 22, p. 54) The Arizona Court of Appeals affirmed the convictions and sentences on October 28, 2014. (Doc. 22, pp. 53-57) Lundeen sought review from the Arizona Supreme Court, but he failed to file his petition by the extended deadline, January 19, 2015. (Doc. 22, p. 59) And the court dismissed the proceedings on February 3, 2015. (Doc. 22, p. 59)

         More than three years later on June 18, 2018, Lundeen filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) trial counsel was ineffective, (2) counsel failed to introduce certain evidence at trial and appellate counsel was ineffective, (3) the victim witness committed perjury, and (4) the police failed to collect blood evidence and the evidence admitted at trial was insufficient. (Doc. 1) He admits that he failed to present any of his issues to the Arizona Court of Appeals. (Doc. 1)

         On January 25, 2019, the respondents filed an answer arguing, among other things, that the petition is time-barred. (Doc. 21) They are correct. The court does not reach the respondents' alternate arguments. Lundeen did not file a timely reply.

         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 limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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