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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Louis Colson, Petitioner, 10 11 13 Charles L. Ryan, Director of Arizona Department of Corrections; and the Attorney General of the State of Arizona, 14 ORDER v. 12 No. CV-17-01207-PHX-DGC (BSB) Respondents. 15 16 17 In February 2013, Petitioner pled guilty in state court to one count of sexual 18 conduct with a minor and two counts of attempted child molestation. Doc. 22-1 at 12-15. 19 He presently is confined in state prison serving a 27-year sentence. Id. at 18-24. He filed 20 a petition for writ of habeas corpus on April 24, 2017. Doc. 1. His second amended 21 petition asserts multiple grounds for relief based on allegations that the state court lacked 22 jurisdiction and he was denied the right to counsel. Docs. 11, 28. 23 Magistrate Judge Bridget S. Bade has issued a Report and Recommendation 24 (R&R) that the petition be denied as untimely. Doc. 40. Petitioner has filed objections to 25 the R&R, to which the State has responded. Docs. 41, 42. The Court will overrule the 26 objections and accept Judge Bade’s recommendation. 27 I. 28 Statute of Limitations. Petitions for habeas corpus are governed by the Antiterrorism and Effective Death 1 Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq. The AEDPA establishes a one- 2 year statute of limitations for habeas petitions filed by state prisoners. § 2244(d)(1). The 3 limitation period generally begins to run when the state conviction becomes final by the 4 expiration or conclusion of direct review. § 2244(d)(1)(A). Statutory tolling is available 5 for the time during which a properly filed application for post-conviction relief is 6 pending. § 2244(d)(2). For equitable tolling to apply, the petitioner “must show that 7 (1) some ‘extraordinary circumstance’ prevented him from filing on time, and (2) he has 8 diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) 9 (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). 10 II. The R&R and Petitioner’s Objections. 11 Judge Bade found that the AEDPA’s one-year limitation period began to run 12 on April 7, 2016, after conclusion of Petitioner’s post-conviction relief proceedings. 13 Doc. 40 at 4. Judge Bade further found that Petitioner’s habeas petitions are time barred 14 because they were filed after expiration of the limitation period on April 7, 2017. Id. at 5. 15 Judge Bade concluded that Petitioner is not entitled to statutory tolling because his 16 applications for post-conviction relief were untimely and therefore not “properly filed” 17 for purposes of § 2244(d)(2), and Petitioner is not entitled to equitable tolling because he 18 has shown no extraordinary circumstances. Id. at 6-7. 19 Petitioner does not specifically object to Judge Bade’s findings that the limitation 20 period began to run on April 7, 2016, and expired one year later before Petitioner sought 21 federal habeas relief. Rather, Petitioner challenges the AEDPA’s applicability to this 22 case and contends that his habeas petition “may be brought at any time.” Doc. 41 at 2 23 (emphasis in original). The Court will review this argument de novo, and adopt without 24 further discussion the portions of the R&R to which Petitioner does not specifically 25 object. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 26 328 F.3d 1114, 1121 (9th Cir. 2003). 27 III. 28 Discussion. Petitioner contends that he may file his habeas petition at any time because no -2- 1 criminal case was properly brought against him under Arizona’s Constitution. Doc. 41 2 at 2. This contention rests on Petitioner’s belief that the State of Arizona was not 3 properly listed as a party in the indictment. Plaintiff claims that “to properly bring 4 criminal cases under Arizona’s Constitution the party plaintiff of record must be 5 ‘The State of Arizona’ [and the] superior court has no jurisdiction over cases not brought 6 under Arizona’s Constitution in which “STATE OF ARIZONA” is a party[.]” 7 (citations and emphases omitted). Petitioner asserts that because “The State of Arizona” 8 does not appear as the plaintiff of record, “the superior court had no jurisdiction of the 9 cause [and the] AEDPA . . . [is] not applicable.” Id. Id. 10 As previously noted, these assertions are frivolous. Doc. 13 at 6. “[T]he use of 11 capital letters in the caption of an indictment is irrelevant to the issue of subject matter 12 jurisdiction.” United States v. Mitchell, 405 F. Supp. 2d 602, 604 (D. Md. 2005). 13 “‘It makes no sense to rest a jurisdictional distinction upon the use of all upper case 14 letters or a mixture of upper and lower case letters. The federal courts abandoned this 15 level of formalism long ago.’” Id. (citation omitted). 16 Citing Article III of the United States Constitution, Petitioner asserts that his 17 criminal case was within the original jurisdiction of the United States Supreme Court 18 because the State of Arizona is a party to the case. Doc. 41 at 5-6. But nothing in 19 Article III strips Arizona courts of their jurisdiction over state law criminal cases. 20 Moreover, insofar as Petitioner “challenges whether the Arizona Constitution and statutes 21 properly assign jurisdiction to hear criminal cases to the superior court, he has not shown 22 a violation of federal law.” Lopez v. Ryan, No. CV-11-1755-PHX-GMS (LOA), 2013 23 WL 3967617, at *3 (D. Ariz. Aug. 2, 2013) (emphasis in original). 24 Petitioner cites Ex Parte Siebold, 100 U.S. 371 (1879), for the proposition that 25 federal courts may exercise appellate jurisdiction by habeas corpus directly. Id. at 7. 26 Seibold, however, “was decided long before any statute of limitations was enacted as 27 to habeas corpus actions and [does not deal] with delay in seeking a writ.” Forney v. 28 Warden, Lebanon Corr. Inst., No. 3:08-cv188, 2009 WL 47014, at *4 (S.D. Ohio Jan. 6, -3- 1 2009). 2 Finally, Petitioner challenges certain purported “findings” by Judge Bade: 3 “(1) that a criminal case was lawfully brought under the provisions of Arizona’s 4 Constitution ‘in the Maricopa County Superior Court’; (2) that ‘the Arizona Rules of 5 Criminal Procedure’ are applicable; [and] (3) that Petitioner had constitutionally 6 ‘appointed counsel’ post-conviction[.]” Doc. 41 at 2. Judge Bade made no such findings 7 in the R&R. Rather, in setting forth the factual and procedural background, Judge Bade 8 simply noted that Petitioner pled guilty in superior court, that he sought post-conviction 9 relief under Rule 32, and that his appointed counsel found no colorable claim for relief. 10 Doc. 40 at 2. To the extent Petitioner objects to the background section of the R&R on 11 the ground that the superior court lacked jurisdiction over his criminal case, the objection 12 is overruled for reasons set forth above. 13 In summary, the habeas petitions are untimely because Petitioner filed them after 14 the limitation period expired and has not shown an entitlement to statutory or equitable 15 tolling. The Court will accept the R&R and deny habeas relief. 16 IT IS ORDERED: 17 1. Magistrate Judge Bridget S. Bade’s R&R (Doc. 40) is accepted. 18 2. The second amended petition for writ of habeas corpus (Doc. 11) is denied 19 with prejudice. 20 3. A certificate of appealability is denied. 21 4. The motion to dismiss for fraud (Doc. 35) is denied as moot. 22 5. The Clerk is directed to terminate this action. 23 Dated this 13th day of April, 2018. 24 25 26 27 28 -4-

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