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Bunn v. Ryan

United States District Court, D. Arizona

February 27, 2014

Otis Eugene Bunn, Petitioner,
Charles L. Ryan, et al., Respondents.


G. MURRAY SNOW, District Judge.

Pending before the Court are Petitioner Otis Eugene Bunn's Petition for Writ of Habeas Corpus (Doc. 1) and Petitioner's Motion to Compel Respondents to Show Evidence (Doc. 27). Magistrate Judge Lawrence O. Anderson issued a Report and Recommendation ("R&R") in which he recommended that the Court deny the petition with prejudice. (Doc. 20.) Bunn filed objections to the R&R. (Doc. 22.) Because objections have been filed, the Court will review the petition de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the Court accepts the R&R and denies the petition as untimely. The Court also denies Bunn's Motion to Compel.


Bunn was convicted by a jury in Maricopa County Superior Court, case #CR2003-0233-1-001-DT, of assault, criminal damage, and possession or use of narcotic drugs. (Doc. 10, Exs. A-C.) Bunn, who had two prior felony convictions, was sentenced to ten years in prison for the drug offense, a consecutive term of 3.75 years for the criminal damage offense, and time served for the assault. (Doc. 10, Ex. C.) Bunn filed a timely notice of appeal. (Doc. 10, Ex. D.)

Bunn's counsel filed an Anders brief, stating that she found no arguable question of law that was not frivolous. (Doc. 10, Ex. F at 47.) Bunn, as permitted by Arizona law, then filed a supplemental brief pro se. (Doc. 10, Ex. E.) The Court of Appeals affirmed Bunn's convictions and sentences on June 18, 2009. (Doc. 10, Ex. F.) After the time expired for Bunn to seek review in the Arizona Supreme Court, the Court of Appeals issued an Order and Mandate on August 12, 2009. (Doc. 10, Ex. G.)

Due to his failure to seek review in the Arizona Supreme Court, Bunn's convictions became final once his time to seek such review expired on July 20, 2009. See 28 U.S.C. § 2244(d)(1)(A). Without any applicable tolling provisions, AEDPA's statute of limitations period would have begun to run the next day, on July 21, 2009. However, as Bunn's Notice of Post-Conviction Relief, filed on July 11, 2008, was still pending on July 21, 2009, the limitations period was tolled for a week, until the trial court denied Bunn's post-conviction petition on July 28, 2009. Thus, the AEDPA one-year statute of limitations actually began to run the day after this denial, on July 29, 2009, as no application for post-conviction relief was pending as of that date. See 28 U.S.C. § 2244(d)(2). This one-year statute of limitations expired on July 29, 2010. Bunn did not file the instant federal habeas petition until August 3, 2012, more than two years later. (Doc. 1 at 11.)

Magistrate Judge Anderson issued an R&R on October 11, 2013, in which he recommended denial of the petition as untimely. (Doc. 20.) Bunn filed his objections to the R&R on October 29, 2013, (Doc. 22), and the Court will now review the petition de novo.



The writ of habeas corpus affords relief to persons in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006). Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Id. U.S.C. § 2244 et seq. AEDPA "establishes a 1-year statute of limitations for filing a federal habeas corpus petition." Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (citing 28 U.S.C. § 2244(d)(1)). The limitation period begins to run when the state conviction becomes final-either "upon the conclusion of direct review or the expiration of the time for seeking such review.'" White v. Klitzkie, 281 F.3d 920, 923 (9th Cir. 2002) (quoting 28 U.S.C. § 2244(d)(1)(A)). This one-year limitation period is statutorily tolled during any time in which a "properly filed" state petition for post-conviction relief is "pending" before the state court, and "must be tolled for the entire period in which a petitioner is appropriately pursuing and exhausting his state remedies." 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir. 1999).

In certain limited circumstances, AEDPA's one-year filing deadline may be equitably tolled. See Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled to equitable tolling if he can demonstrate that "(1) he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" to prevent his timely filing. Pace, 544 U.S. at 418. Nevertheless, equitable tolling is rare: the Court must "take seriously Congress's desire to accelerate the federal habeas process" and may equitably toll the AEDPA's limitation period only when the test's "high hurdle is surmounted." Calderon v. United States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997), overruled in part on other grounds, 163 F.3d 530 (9th Cir. 1998).


The only argument Bunn makes regarding the timing of his filings is that the trial court failed to provide him timely notice of its July 28, 2009 decision to deny his petition for post-conviction relief, and therefore he was unable to file a timely Motion for Rehearing. (Doc. 1 at 23.) Magistrate Judge Anderson construed this as an argument for equitable tolling, but noted that this argument would only excuse Bunn's failure to file a timely Motion for Rehearing, and that the Arizona Court of Appeals rejected Bunn's Petition for Review as untimely not because his Motion for Rehearing was untimely, but because he failed to file his Petition for Review within thirty days of the trial court's denial of the Motion for Rehearing. (Doc. 20 at 9.) Bunn does not allege he failed to receive timely notice of this denial. Even if the Court were to excuse Bunn's untimely Motion for Rehearing, this would only toll the limitations period four months, until the date the trial court denied that Motion for Rehearing. Here, Bunn filed his habeas ...

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