Conrad E. Salcido, Petitioner,
Charles Ryan, et al., Respondents.
ORDER RE PETITION FOR HABEAS CORPUS
SHARON L. GLEASON, District Judge.
Before the Court is the Petition for Writ of Habeas Corpus ("the Petition") filed by Petitioner Conrad E. Salcido, pursuant to 28 U.S.C. § 2254. Respondents filed a response (the "Limited Answer"), and Salcido replied. On October 10, 2013, Magistrate Judge David K. Duncan issued a Report and Recommendation ("R&R"), recommending that the Petition be denied and dismissed with prejudice and that a certificate of appealability be denied. Salcido timely filed objections to the R&R. For the following reasons, the Court will adopt the Magistrate Judge's R&R, dismiss the Petition with prejudice, and deny a certificate of appealability.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, Salcido pled guilty to multiple counts of attempted child molestation and attempted sexual conduct with a minor. After Salcido's incarceration and subsequent release, in February 2006, the State filed a petition to revoke Salcido's probation. The court held an evidentiary hearing, revoked Salcido's probation, and sentenced him to nine years of imprisonment. The final order provided that Salcido would "not be eligible for release on any basis until serving one-half (1/2) of the sentence imposed by the Court." On August 22, 2006, Salcido appealed the finding that he had violated his probation to the Arizona Court of Appeals; it affirmed on May 9, 2007. Salcido did not appeal to the Arizona Supreme Court.
Salcido filed three petitions for post-conviction relief ("PCR") in the Arizona Superior Court in Gila County. In March 2009, he filed his first petition, which was denied in June 2009. In July 2009, he filed his second petition, which was denied in November 2009. Nearly two years later, in September 2011, he filed his third petition, asserting that he should be released because he had served one-half of his sentence. The petition was denied in June 2012; the order noted that although Salcido was eligible for release because he had served one-half of the sentence imposed, whether he should be released was a decision for the Arizona Department of Corrections.
Salcido filed this Petition on June 28, 2012, requesting that he be released from incarceration because he has served one-half of the sentence imposed. Respondents filed a Limited Answer to the Petition, asserting that the Petition is barred by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") one-year statute of limitations for habeas claims, and that neither statutory nor equitable tolling serve to make the Petition timely. On November 20, 2012, Salcido filed a reply to the limited answer, asserting that AEDPA's one year statute of limitations cannot apply retroactively to Salcido, as Salcido was convicted prior to the 1996 passage of AEDPA. On April 9, 2013, Salcido filed a motion for default judgment, which appears to assert that Respondents failed to timely or adequately respond to the Petition. That motion was denied.
On October 10, 2013, the Magistrate Judge issued an R&R, recommending that the Petition be dismissed with prejudice and that a certificate of appealability be denied. Specifically, the Magistrate Judge concluded that the Petition was untimely under AEDPA's one-year statute of limitations. Salcido filed objections to the R&R, but the objections fail to address the timeliness ground upon which the Magistrate Judge made his recommendation. Instead, the objections repeat Salcido's assertions that he was entitled to a default judgment and that he is entitled to be released because he has served one-half of his sentence.
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1), a court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." A court must only "make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made."
In his objections, Salcido asserts that Respondents defaulted in these proceedings by failing to timely respond to his Petition, and that he should be released from prison because he has served one-half of his sentence. Salcido does not question the factual findings of the R&R, nor does he question the legal analysis upon which the Magistrate Judge ultimately recommended dismissal of the Petition-that is, the Petition was untimely. Accordingly, Salcido's objections do not require de novo review. Nevertheless, this Court has independently reviewed the record. This Court agrees with the R&R's statute of limitations analysis-Salcido's Petition is untimely and must be dismissed.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. The Report and Recommendation filed October 10, 2013 is ADOPTED, and the Petition for Habeas Corpus ...