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Burke v. Bigelow

United States District Court, D. Utah, Central Division

September 18, 2017

RYAN DAVID BURKE, Petitioner,
v.
ALFRED BIGELOW, Respondent.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS

          Robert J. Shelby District Judge.

         THIS 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.

         BACKGROUND

         A. Factual Summary[1]

         Petitioner 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 fast-forwarded.

         B 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 cane.

         Later 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.

         B. Procedural History

         A jury 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.

         On 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).

         On April 8, 2016, Petitioner filed his current habeas petition.

         ANALYSIS

         A. Period of Limitation

         Federal 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 ...


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