United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DISMISSING
STEWART UNITED STATES DISTRICT JUDGE
MATTER IS BEFORE THE COURT on Petitioner Frank Joseph
Brown's habeas-corpus petition. 28 U.S.C. § 2254
(2018). Having thoroughly considered the parties'
arguments and all relevant law, the Court concludes the
petition must be dismissed as inexcusably untimely. See
id. § 2244(d)(1).
court, Petitioner pleaded guilty to one count of attempted
child kidnapping, a first-degree felony. He was sentenced to
an indeterminate prison term of three-years-to-life on
February 12, 2016. Petitioner did not appeal, nor did he
petition for state post-conviction relief. He filed his
federal petition for a writ of habeas corpus on July 20,
2017, more than seventeen months after sentencing.
alleges a wide range of claims: pre-plea constitutional
violations, ineffective assistance of counsel, and actual
innocence. The State moves to dismiss the petition as
untimely. Petitioner responds that newly discovered evidence
supports his actual-innocence claim and overcomes any
untimeliness bars. The Court rejects Petitioner's
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.” Id. §
2244(d)(1). As to Petitioner's claims, the limitation
period ran from “the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review.” Id. That
occurred here on March 14, 2016. See Utah R. App. P.
4(a) (“The notice of appeal . . . shall be filed . . .
within 30 days after the date of entry of the judgment or
order appealed from.”). So, Petitioner had until March
14, 2017 to file his federal petition, excepting applicable
tolling. This federal petition was not filed until July 20,
2017, more than four months after the limitation period
asserts that newly discovered evidence renders his petition
timely under § 2244(d)(1)(D), which permits claims based
on newly discovered evidence to be brought within one year
from “the date on which the factual predicate of the
claim or claims presented could have been discovered through
exercise of due diligence.” 28 U.S.C. §
2244(d)(1)(D) (2018). He also argues that newly discovered
evidence shows actual innocence, tolling the limitation
The “new” evidence is not relevant to
Petitioner's guilty plea.
Petitioner's voluminous and repetitive arguments
contained in his many filings in this Court: Before the
attempted kidnapping incident, Victim's parents appear to
have alleged to California authorities that Petitioner had an
inappropriate sexual relationship with Victim.
Petitioner's “newly discovered evidence”
consists of “four investigations” by California
and Utah that he argues exonerate him from the allegation
that he had an inappropriate relationship with his
thirteen-year-old victim. He also contends these
“investigations” show that he was not court
ordered to stay away from Victim. He emphasizes that his
victim and her siblings called him “grandpa.”
Moreover, some investigation documents seem to be from Utah
child protection authorities, reporting on their
investigation of allegations against Victim's parents
that Petitioner offers to show that they were bad parents and
his motive in abducting the child was to protect the child
from a bad home situation.
Petitioner pleaded guilty to attempted child kidnapping, not
to any form of child sex abuse. Utah Code. Ann. §
76-5-301.1 (2018), defines child kidnapping as:
1. “intentionally or knowingly” and
“without authority of law”
2. Seizing, confining, detaining, or ...