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Brown v. State

United States District Court, D. Utah

February 27, 2019

FRANK JOSEPH BROWN, Petitioner,
v.
STATE OF UTAH, Respondent

          MEMORANDUM DECISION AND ORDER DISMISSING HABEAS-CORPUS PETITION

          TED STEWART UNITED STATES DISTRICT JUDGE

         THIS 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).

         BACKGROUND

         In Utah 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.

         Petitioner 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 arguments.

         ANALYSIS

         “A 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 expired.

         Petitioner 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 period.

         A. The “new” evidence is not relevant to Petitioner's guilty plea.

         Summarizing 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.

         But 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 ...

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