Colson #280679 v. Ryan et al

Filing 43

ORDER: Magistrate Judge Bridget S. Bade's R&R (Doc. 40 ) is accepted. The second amended petition for writ of habeas corpus (Doc. 11 ) is denied with prejudice. A certificate of appealability is denied. The motion to dismiss for fraud (Doc. 35 ) is denied as moot. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 4/13/2018. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Louis Colson,
Petitioner,

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Charles L. Ryan, Director of Arizona
Department of Corrections; and the
Attorney General of the State of Arizona,

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ORDER

v.

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No. CV-17-01207-PHX-DGC (BSB)

Respondents.

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In February 2013, Petitioner pled guilty in state court to one count of sexual

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conduct with a minor and two counts of attempted child molestation. Doc. 22-1 at 12-15.

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He presently is confined in state prison serving a 27-year sentence. Id. at 18-24. He filed

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a petition for writ of habeas corpus on April 24, 2017. Doc. 1. His second amended

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petition asserts multiple grounds for relief based on allegations that the state court lacked

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jurisdiction and he was denied the right to counsel. Docs. 11, 28.

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Magistrate Judge Bridget S. Bade has issued a Report and Recommendation

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(R&R) that the petition be denied as untimely. Doc. 40. Petitioner has filed objections to

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the R&R, to which the State has responded. Docs. 41, 42. The Court will overrule the

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objections and accept Judge Bade’s recommendation.

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I.

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Statute of Limitations.
Petitions for habeas corpus are governed by the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq. The AEDPA establishes a one-

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year statute of limitations for habeas petitions filed by state prisoners. § 2244(d)(1). The

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limitation period generally begins to run when the state conviction becomes final by the

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expiration or conclusion of direct review. § 2244(d)(1)(A). Statutory tolling is available

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for the time during which a properly filed application for post-conviction relief is

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pending. § 2244(d)(2). For equitable tolling to apply, the petitioner “must show that

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(1) some ‘extraordinary circumstance’ prevented him from filing on time, and (2) he has

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diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015)

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(citing Holland v. Florida, 560 U.S. 631, 649 (2010)).

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II.

The R&R and Petitioner’s Objections.

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Judge Bade found that the AEDPA’s one-year limitation period began to run

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on April 7, 2016, after conclusion of Petitioner’s post-conviction relief proceedings.

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Doc. 40 at 4. Judge Bade further found that Petitioner’s habeas petitions are time barred

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because they were filed after expiration of the limitation period on April 7, 2017. Id. at 5.

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Judge Bade concluded that Petitioner is not entitled to statutory tolling because his

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applications for post-conviction relief were untimely and therefore not “properly filed”

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for purposes of § 2244(d)(2), and Petitioner is not entitled to equitable tolling because he

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has shown no extraordinary circumstances. Id. at 6-7.

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Petitioner does not specifically object to Judge Bade’s findings that the limitation

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period began to run on April 7, 2016, and expired one year later before Petitioner sought

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federal habeas relief. Rather, Petitioner challenges the AEDPA’s applicability to this

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case and contends that his habeas petition “may be brought at any time.” Doc. 41 at 2

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(emphasis in original). The Court will review this argument de novo, and adopt without

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further discussion the portions of the R&R to which Petitioner does not specifically

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object. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003).

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III.

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Discussion.
Petitioner contends that he may file his habeas petition at any time because no

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criminal case was properly brought against him under Arizona’s Constitution. Doc. 41

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at 2. This contention rests on Petitioner’s belief that the State of Arizona was not

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properly listed as a party in the indictment. Plaintiff claims that “to properly bring

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criminal cases under Arizona’s Constitution the party plaintiff of record must be

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‘The State of Arizona’ [and the] superior court has no jurisdiction over cases not brought

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under Arizona’s Constitution in which “STATE OF ARIZONA” is a party[.]”

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(citations and emphases omitted). Petitioner asserts that because “The State of Arizona”

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does not appear as the plaintiff of record, “the superior court had no jurisdiction of the

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cause [and the] AEDPA . . . [is] not applicable.” Id.

Id.

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As previously noted, these assertions are frivolous. Doc. 13 at 6. “[T]he use of

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capital letters in the caption of an indictment is irrelevant to the issue of subject matter

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jurisdiction.” United States v. Mitchell, 405 F. Supp. 2d 602, 604 (D. Md. 2005).

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“‘It makes no sense to rest a jurisdictional distinction upon the use of all upper case

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letters or a mixture of upper and lower case letters. The federal courts abandoned this

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level of formalism long ago.’” Id. (citation omitted).

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Citing Article III of the United States Constitution, Petitioner asserts that his

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criminal case was within the original jurisdiction of the United States Supreme Court

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because the State of Arizona is a party to the case. Doc. 41 at 5-6. But nothing in

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Article III strips Arizona courts of their jurisdiction over state law criminal cases.

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Moreover, insofar as Petitioner “challenges whether the Arizona Constitution and statutes

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properly assign jurisdiction to hear criminal cases to the superior court, he has not shown

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a violation of federal law.” Lopez v. Ryan, No. CV-11-1755-PHX-GMS (LOA), 2013

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WL 3967617, at *3 (D. Ariz. Aug. 2, 2013) (emphasis in original).

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Petitioner cites Ex Parte Siebold, 100 U.S. 371 (1879), for the proposition that

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federal courts may exercise appellate jurisdiction by habeas corpus directly. Id. at 7.

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Seibold, however, “was decided long before any statute of limitations was enacted as

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to habeas corpus actions and [does not deal] with delay in seeking a writ.” Forney v.

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Warden, Lebanon Corr. Inst., No. 3:08-cv188, 2009 WL 47014, at *4 (S.D. Ohio Jan. 6,

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2009).

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Finally, Petitioner challenges certain purported “findings” by Judge Bade:

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“(1) that a criminal case was lawfully brought under the provisions of Arizona’s

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Constitution ‘in the Maricopa County Superior Court’; (2) that ‘the Arizona Rules of

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Criminal Procedure’ are applicable; [and] (3) that Petitioner had constitutionally

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‘appointed counsel’ post-conviction[.]” Doc. 41 at 2. Judge Bade made no such findings

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in the R&R. Rather, in setting forth the factual and procedural background, Judge Bade

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simply noted that Petitioner pled guilty in superior court, that he sought post-conviction

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relief under Rule 32, and that his appointed counsel found no colorable claim for relief.

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Doc. 40 at 2. To the extent Petitioner objects to the background section of the R&R on

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the ground that the superior court lacked jurisdiction over his criminal case, the objection

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is overruled for reasons set forth above.

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In summary, the habeas petitions are untimely because Petitioner filed them after

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the limitation period expired and has not shown an entitlement to statutory or equitable

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tolling. The Court will accept the R&R and deny habeas relief.

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IT IS ORDERED:

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1.

Magistrate Judge Bridget S. Bade’s R&R (Doc. 40) is accepted.

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2.

The second amended petition for writ of habeas corpus (Doc. 11) is denied

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with prejudice.

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3.

A certificate of appealability is denied.

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4.

The motion to dismiss for fraud (Doc. 35) is denied as moot.

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The Clerk is directed to terminate this action.

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Dated this 13th day of April, 2018.

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