JAMES A. TEILBORG, District Judge.
Pending before the Court is Petitioner's petition for writ of habeas corpus (Doc. 1) and Supplement. (Doc. 25). This case was referred to a Magistrate Judge who issued a Report and Recommendation (Doc. 26) recommending that the Court find that the Petition in this case is barred by the statute of limitations.
In reviewing a Report and Recommendation (R&R), the Court must conduct a de novo review of any portion of the R&R to which either party objects. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ). The Court grants Petitioner's Motion for a Time Extension (Doc. 27) to the extent Petitioner's objections received on August 5, 2013, are deemed timely. Because Petitioner has objected to the recommendation that the Court find that his Petition is barred by the statute of limitations, the Court will review the Petition de novo. (Doc. 28).
Pursuant to a plea agreement, on November 17, 2008, Petitioner was sentenced in state court to lifetime probation on count 1, attempted sexual conduct with a minor, a class 3 felony and a dangerous crime against children, and on count 9, attempted sexual abuse, a class 4 felony and a dangerous crime against children. (Doc. 20-1 at 16-17). Additionally, Petitioner was sentenced to five years imprisonment on count 1. ( Id. ).
On April 23, 2010, in state court, Petitioner filed a "Motion for Sentence Modification for Exceeding Subject Matter Jurisdiction." (Doc. 20-1 at 27). In the Motion, Petitioner argued that lifetime probation violates Eighth, Fifth, and Fourteenth Amendments. ( Id. ). The state trial court construed the Motion as a Petition for Post-Conviction Relief ("PCR"), and on June 22, 2010, dismissed the PCR as untimely under Arizona Rule of Criminal Procedure 32.4(a). (Doc. 20-1 at 43).
On July 29, 2010, Petitioner filed a Petition for Review of the trial court's denial in the Arizona Court of Appeals (Doc. 20-1 at 46), and on February 10, 2012, the court denied review. (Doc. 20-1 at 75). Petitioner then filed a Petition for Review in the Arizona Supreme Court on February 20, 2012 (Doc. 20-1 at 77), which was denied on June 6, 2012. (Doc. 20-1 at 95). Finally, Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 10, 2012 (Doc. 1). On July, 1, 2013, the Magistrate Judge issued an R&R, which concluded that the Petition was barred by the statute of limitations. (Doc. 26). Petitioner filed objections to the R&R, which dispute the conclusion. (Doc. 28).
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provides a one-year statute of limitations from when a conviction becomes final for a defendant to file a habeas petition. 28 U.S.C § 2244(d).
Petitioner's conviction became final after the opportunity for review in state court expired. Under Arizona law, Petitioner's opportunity for direct review was a Rule 32 post-conviction relief proceeding. "Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A)." Summers v. Schriro, 481 F.3d 710, 716-17 (9th Cir. 2007). "To bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to the Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of his or her intent to file a Petition for Post-Conviction Review." Id. at 715 (citing Ariz. R. Crim. P. 32.4(a)).
Petitioner was sentenced on November 17, 2008. Accordingly, Petitioner's deadline to file a PCR expired on February 18, 2009, and thus his conviction became final on that date. On July 10, 2012, more than two years later, Petitioner filed a petition for writ of habeas corpus. Therefore, the Petition is beyond the statute of limitations unless Petitioner can show that he is entitled to statutory and/or equitable tolling.
A. FACTUAL PREDICATE
In his objections, Petitioner argues that because he discovered new evidence, the statute of limitations did not commence on February 18, 2009. (Doc. 28 at 2). He claims (1) that Weems v. United States qualifies as a factual predicate of his claim and (2) that, despite his exercise of due diligence, he could not discover this fact because the State provided an inadequate law library. In Weems, a United States Coast Guard official was convicted of falsifying public documents and was sentenced to fifteen years' imprisonment at "hard and painful labor." Weems v. United States, 217 U.S. 349, 357-64 (1910). The official was also deprived of parental authority rights, martial rights, and property transfer. Id. at 364. Additionally, the court imposed lifetime surveillance. Id. at 364-65. Based on all of the sentences imposed, the Court found that the sentence was disproportionate to the crime of falsifying documents. Id. at 384. As a result, the Court held the sentence was cruel and unusual under the Eighth Amendment. Id.
Under § 2244(d)(1)(D), the one-year statute of limitations may be tolled until "the date on which the factual predicate of the claim... presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D) (2012). A court decision may qualify as a fact if the decision is in the petitioner's own case. Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th Cir. 2005) (distinguishing between discovery of case law and discovery ...