United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER GRANTING MOTION TO
J. Shelby District Judge.
MATTER IS BEFORE THE COURT on Respondent's motion to
dismiss Petitioner Ryan Burke's habeas petition as
untimely. Having carefully considered the motion, the
opposition, the reply, and all relevant rules and statutes,
the Court concludes that Petitioner's habeas petition is
time-barred under the federal period of limitation.
stayed overnight at the home of an acquaintance (A), while A
was absent. However, A's sister was there babysitting
A's four-year-old daughter (B). Petitioner stayed in the
basement, ordering pornographic movies on cable television at
1:30, 3:00, 3:30, and 8:20 a.m., respectively. They were
“on demand” movies and could therefore be
awakened during the night and went downstairs. She recounted
to police that Petitioner had been watching a “grownup
movie”; the movie included oral sex scenes; Petitioner
forced her to touch his penis; and it was night outside when
he did so. While she also described what may have been a
scene in one of the movies--that she saw a ball drop on a
person's head--she never explicitly tied the time of her
abuse to any particular scene or movie. At trial, the police
investigator testified that the fourth movie (ordered at 8:20
a.m.) had a scene with a man being struck on the head with a
that morning, Petitioner was told to leave. He took A's
checkbook, drove to a store and cashed three of the checks.
The first check was time-stamped at 9:18 a.m.
convicted Petitioner of aggravated sexual abuse of a child,
forcible sexual abuse, and dealing in material harmful to a
minor. See State v. Burke (Burke I), 2011 UT App
168, 256 P.3d 1102, 1111; Burke (Burke II), 342 P.3d
at 301. The Utah Court of Appeals affirmed his convictions.
Burke I, 256 P.3d at 1130. The Utah Supreme Court
denied certiorari review on September 28, 2011. See
State v. Burke, 263 P.3d 390 (Utah 2011). Petitioner
did not petition the United States Supreme Court.
September 4, 2012, Petitioner timely filed a state
post-conviction petition. The district court concluded
Petitioner was denied effective assistance of counsel and
vacated his convictions. The Utah Court of Appeals reversed,
holding the “district court erred in determining that
counsel's performance was objectively deficient and that
Petitioner received ineffective assistance of counsel.”
Burke II, 342 P.3d at 307, cert. denied,
352 P.3d 106 (Utah 2015).
April 8, 2016, Petitioner filed his current habeas petition.
Period of Limitation
law puts a one-year limitation period on filing of a
habeas-corpus petition. 28 U.S.C.S. § 2244(d)(1) (2017).
The period begins to run on “the date on which the
[state] judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” Id. A state judgment becomes final
when the United States Supreme Court “affirms a
conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for
filing a ...