Thompson v. Ryan

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Pending 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)

         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

         Thompson 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)

         Thompson 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)

         Thompson 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.

         On August 23, 2018, Thompson constructively^[1] 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)

         On 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.

         Thompson 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 ...