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Smith v. Ryan

United States District Court, Ninth Circuit

December 12, 2013

Stephen Lewis Smith, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

JAMES A. TEILBORG, District Judge.

Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"). Magistrate Judge Bade issued a Report and Recommendation ("R&R") recommending that the Petition be denied and dismissed because it is barred by the Anti-Terrorism and Effective Death Penalty Act's ("AEDPA") statute of limitations.

I. Factual Background

The R&R summarized the factual and procedural history and the Petitioner did not object to this history. (Doc. 36 at 2-5; Doc. 43). The Court adopts the R&R's history in this case. For ease of reference, that history is as follows:[1]

On September 21, 2007, Petitioner pled guilty in the Arizona Superior Court to two counts of attempted sexual exploitation of a minor. (Doc. 20, Ex. A at 13-21, Ex. B). On January 22, 2008, the superior court sentenced Petitioner to a mitigated sentence of nine year's imprisonment and a consecutive term of lifetime probation. (Doc. 20, Ex. C at 31-34, Ex. D at 2).

On October 8, 2008, Petitioner filed a notice of post-conviction relief under Arizona Rule of Criminal Procedure 32 (the "Rule 32 Petition"). (Doc. 20, Exs. F, G). The trial court denied the Rule 32 Petition on February 9, 2009. (Doc. 20, Exs. K, L). The Arizona Court of Appeals denied review of the Rule 32 petition on April 13, 2010. ( See Doc. 36 at 3).

On October 14, 2009, Petitioner filed a second Rule 32 Petition. (Doc. 20, Exs. N, O). The state trial court dismissed the petition on December 8, 2009. (Doc. 20, Ex. P). Petitioner failed to appeal. ( See Doc. 36 at 4).

On January 27, 2010, Petitioner filed a "Motion to Dismiss Case with Prejudice for Trial Court's Lack of Subject-Matter Jurisdiction from Prosecutorial Misconduct" in the state trial court. (Doc. 20, Ex. R). On November 3, 2010, the trial court construed this as a third Rule 32 Petition and dismissed it as untimely. (Doc. 20, Ex. T). Again, Petitioner did not appeal. ( See Doc. 36 at 4).

On June 9, 2010, Petitioner filed a petition for special action in the Arizona Supreme Court, which was dismissed on September 15, 2010. (Doc. 20, Exs. S, U). Petitioner also filed a petition for writ of habeas corpus in the Arizona Supreme Court, HC-12-008, which was dismissed on September 17, 2012. (Doc.1 at 6-8; Doc. 24 at 3).

Finally, on September 25, 2012, the Petitioner filed a Petition for Writ of Habeas Corpus in this Court. (Doc. 1).

II. R&R

On August 16, 2013, the Magistrate Judge issued an R&R recommending that the Petition be denied as barred by the AEDPA's statute of limitations. (Doc. 36). As explained by the Magistrate Judge, the AEDPA provides a one year statute of limitations for state prisoners to file a petition for writ of habeas corpus in federal court. ( Id. at 5 (citing 28 U.S.C. § 2244(d)(1))). That period generally commences on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." (Doc. 36 at 5 (quoting 28 U.S.C. § 2244(d)(1)(A))). Examining Petitioner's procedural history in state court, the Magistrate Judge concluded that Petitioner's conviction became final on May 13, 2010, after the Petitioner failed to appeal the Arizona Court of Appeals decision denying his first Rule 32 Petition. (Doc. 36 at 6). Thus, the Magistrate Judge determined that the Petition filed over a year later, on September 25, 2012, is untimely absent statutory or equitable tolling. ( Id. ).

Starting with statutory tolling, the Magistrate Judge explained that the one-year limitations period is tolled during the time that a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." (Doc. 36 at 7 (quoting 28 U.S.C. § 2244(d)(2))). Examining each post-conviction proceeding in turn, the Magistrate Judge determined that the AEDPA statute of limitations was not tolled because the various post-convictions proceedings were: (1) concluded before the statute of limitations began to run; (2) filed after the end of the statute of limitations period; or (3) improperly filed. (Doc. 36 at 7-8).

Turning to equitable tolling, the Magistrate Judge explained that the Petitioner is entitled to equitable tolling if he shows: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." ( Id. at 9 (quoting Pace v. Diguglielmo, 544 U.S. 408, 418 (2005))). The Magistrate Judge determined that the Petitioner failed both prongs of this test because he "did not address whether he ...


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