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Stewart v. Ryan

United States District Court, D. Arizona

April 24, 2014

Thomas Stewart, Petitioner,
v.
Charles L Ryan, et al., Respondents.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"). Magistrate Judge Anderson 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. REVIEW OF AN R&R

The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). District courts are not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [R&R] to which objection is made."). In this case, Petitioner filed objections to the R&R (Doc. 38), and the Court will review any objections de novo.

II. FACTUAL BACKGROUND

The R&R summarized the factual and procedural history in this case (Doc. 28 at 2-7). Petitioner made several objections to the factual history in connection with his actual innocence claims. (Doc. 38 at 5-12). To the extent that these objections bear on Petitioner's statutory tolling and actual innocence gateway claims the Court will consider them below. However, those objections that are not relevant to the statute of limitations analysis are not addressed because the Court does not reach the merits of these objections. Accordingly, the Court adopts the R&R's history in this case and will address the Petitioner's objections in the context of his arguments.[1]

III. R&R

On October 7, 2013, the Magistrate Judge issued an R&R recommending that the Petition be denied as barred by the AEDPA's statute of limitations. (Doc. 28). 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 8 (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." ( Id. (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 October 7, 2005, after the Petitioner's extension of time to file a petition for review in the Arizona Supreme Court expired. (Doc. 28 at 9-10). Thus, absent any tolling, the Magistrate Judge determined the statute of limitations would have started to run on October 8, 2005.[2]

Starting with statutory tolling, the Magistrate Judge explained that:

[a]n application for post-conviction relief remains "pending" for purposes of the tolling provision in § 2244(d)(2) until it achieves final resolution through the State's post-conviction procedure. Carey v. Saffold, 536 U.S. 214, 219-220 (2002). A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition itself may not be filed until later. Isley v. Ariz. Dep't of Corrs, 383 F.3d 1054, 1056 (9th Cir. 2004).

(Doc. 28 at 8-9). Examining each post-conviction proceeding in turn, the Magistrate Judge explained that the statute of limitations remain tolled until January 19, 2007, the date the trial court denied the Petitioner's Motion for Reconsideration from the Denial of Petition for Post-Conviction Relief. (Doc. 28 at 10). Thus on January 20, 2007, the Petitioner had no "pending" petitions for purposes of tolling under § 2244(d)(2) and the statute of limitations began to run. ( Id. ) Although Petitioner filed additional petitions, the Magistrate Judge noted that special action petitions do not toll the AEDPA limitations period. (Doc. 28 at 12). As a result, the Magistrate Judge explained that the limitations period ran uninterrupted and expired one-year later on January 22, 2008. (Doc. 28 at 10-11).

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) (citing Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. Diguglielmo, 544 U.S. 408, 418 (2005)))). Additionally, "[a] habeas petitioner may also be entitled to equitable tolling of the limitations period if he makes a convincing showing of actual innocence." ( Id. at 13) (quoting McQuiggen v. Perkins, 133 S.Ct. 1924, 1928 (2013). The Magistrate Judge determined that the Petitioner failed to show any extraordinary circumstances that stood in his way. ( Id. at 13). Additionally, the Magistrate Judge concluded that Petitioner failed to make a convincing showing of actual innocence: "[n]owhere in Petitioner's unorganized filings has he made a colorable claim showing that in light of new evidence presented, any juror, acting reasonably, would have voted to find him not guilty." ( Id. at 14).

IV. PETITIONER'S OBJECTIONS

Petitioner raises numerous objections that can be broadly classified into four arguments. First, that the Petition for Special Action constituted a "pending" action that tolled the statute of limitations. (Doc. 38 at 18-20). Second, that equitable tolling is appropriate because Petitioner diligently pursued his rights and an extraordinary circumstance stood in his way. ( Id. at 20-22). Third, that equitable tolling is appropriate because Petitioner can show actual innocence. ( Id. at ...


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