United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. BOWMAN UNITED STATES MAGISTRATE JUDGE
before the court is a petition for writ of habeas corpus
filed on August 27, 2018, by Charles Thompson, an inmate
currently held in the Arizona State Prison Complex in
Florence, Arizona. (Doc. 1)
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).
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order
dismissing the petition. It is time-barred.
of the Case
was convicted after a plea of guilty to one count of
molestation of a child and two counts of attempted
molestation of a child. (Doc. 11-2, p. 116) On February 18,
2014, the trial court sentenced Thompson pursuant to a plea
agreement to a 15-year term of imprisonment and lifetime
probation. (Doc. 11-1, p. 46); (Doc. 11-2, p. 116)
filed notice of post-conviction relief (PCR) on March 26,
2014. (Doc. 11-1, p. 61) Appointed counsel was unable to find
any colorable claims, so the PCR court allowed Thompson to
file a petition pro per. (Doc. 11-1, pp. 65-66) Thompson
filed his petition on January 20, 2015. (Doc. 11-1, p. 68)
The PCR court dismissed the petition summarily on June 19,
2015. (Doc. 11-2, p. 77)
filed a petition for review on July 20, 2015. (Doc. 11-2, p.
79) He argued his sentence was illegal pursuant to A.R.S.
§ 13-603 and correction of the sentence would violate
Double Jeopardy. (Doc. 11-2, pp. 85-90) On June 8, 2017, the
Arizona Court of Appeals granted review but denied relief.
(Doc. 11-2, pp. 120-122) Thompson was granted an extension of
the deadline for filing a petition for review with the
Arizona Supreme Court. (Doc. 11-2, p. 124) But he failed to
file a petition by the new deadline, August 9, 2017. (Doc.
11-2, p. 124) The Arizona Supreme Court dismissed the
proceeding on August 29, 2017. Id.
August 23, 2018, Thompson constructively filed in this
court a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Doc. 1, p. 8) He claims his sentence of
“flat time” is illegal and A.R.S. §
13-603(k) is unconstitutionally vague and applying it to his
sentence on count 2 violates the Double Jeopardy Clause (Doc.
1, p. 6)
January 11, 2019, the respondents filed an answer arguing,
among other things, that the petition is time-barred. (Doc.
11) They are correct. The court does not reach the
respondents' alternate arguments.
did not file a timely reply.
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