United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before this Court is Petitioner's amended petition for writ of habeas corpus ("Petition"). Magistrate Judge Duncan issued a Report and Recommendation ("R&R") recommending that the Petition be denied and dismissed with prejudice (Doc. 28) 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 background and procedural history and Petitioner did not object to this history. (Doc. 28 at 1-3; Doc. 29). The Court adopts the R&R's history in this case.
Specifically, on October 29, 2002, Petitioner was convicted of two counts of sexual conduct with a minor and one count of attempted sexual conduct with a minor. (Doc. 28, Ex. A at 1-2). The trial court imposed consecutive terms of imprisonment totaling 89 years. (Doc. 28, Ex. B at 1-3). As the R&R further recounted:
Following the September 18, 2003 Arizona State Court of Appeals memorandum decision affirming his convictions and sentences, and the issuance of a mandate on November 3, 2003, Gutierrez-Valencia petitioned for review on December 19, 2003 (Doc. 20, Exh F, G). On January 22, 2004, the court of appeals vacated the mandate ( Id., Exh H). On April 16, 2004, the court of appeals revisited jurisdiction in the superior court for an evidentiary hearing to explain "a typographical error and/or omission in the record" regarding the polling of the jury ( Id., Exh I). Although the minute entry stated that all twelve jurors were polled, the transcript indicated that only eleven jurors had been polled ( Id. ).
On April 21, 2004, the court of appeals directed the superior court to take such action "as may be necessary to enable it to determine whether all twelve jurors were polled as to their concurrence in the verdict at trial" ( Id., Exh J). On June 11, 2004, the trial court held an evidentiary hearing, and on August 2, 2004, issued a detailed minute entry, with findings of fact and conclusions of law. Specifically, the trial court found that "the jury stated (en masse) that these were their true verdicts, one and all" ( Id., Exh K, L, M). Following supplemental briefing, the court of appeals issued a supplemental memorandum decision on December 16, 2004 affirming the convictions and sentences ( Id., Exh N-R).
On January 28, 2005, Gutierrez-Valencia petitioned for review; on September 27, 2005 the supreme court denied review ( Id., Exh S, T). On November 1, 2005, the court of appeals issued its mandate ( Id., Exh V, W). On October 31, 2005, Gutierrez-Valencia filed a Notice of Post-Conviction Relief; on November 4, 2005, the trial court dismissed the notice as untimely ( Id., Exh V, W). On September 13, 2006, Gutierrez-Valencia filed a subsequent Notice of Post-Conviction Relief ( Id., Exh X). On April 4, 2007, appointed counsel filed a Notice of Completion of Post-Conviction Review, informing the trial court that he had reviewed the record and was unable to find any claims for relief to raise in a post-conviction proceedings ( Id., Exh Y). On May 25, 2007, Gutierrez-Valencia filed a supplemental Rule 32 memorandum ( Id., Exh Z). On October 4, 2007, the trial court summarily dismissed Gutierrez-Valencia's petition, finding that he had failed to state a colorable claim ( Id., Exh BB). On October 31, 2007, he petitioned for review; on September 26, 2008, the court of appeals denied review ( Id., Exh CC, DD). On March 7, 2009, Gutierrez-Valencia filed a motion for reconsideration in the court of appeals ( Id., Exh EE). In response, the Clerk of the Court at Arizona Court of Appeals sent him a letter informing him that his case had been terminated on November 17, 2008, and that the Arizona Rules of Criminal Procedure did not permit a motion seeking reconsideration of the denial of a petition for review ( Id., Exh FF). Gutierrez-Valencia filed his Petition for Habeas Corpus on June 19, 2012, and his Amended Petition on November 20, 2012 (Doc. 19).
(Doc. 28 at 2-3).
On October 16, 2013, the Magistrate Judge issued an R&R recommending that this Court deny the Petition as barred by the AEDPA's statute of limitations. ( Id. at 1-6). 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 3 (citing 28 U.S.C. § 2244(d)(2))). "For a state prisoner in Arizona who does not seek review through a petition for writ of certiorari from the United States Supreme Court, the judgment becomes final 90 days from the date on which the Arizona Supreme Court denies review, the date that the time for seeking such review expires, whether or not a petitioner actually files a petition.'" ( Id. (citing Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999))).
Starting with statutory tolling, the Magistrate Judge explained that on December 26, 2005, 90 days after the Arizona Supreme Court denied review, Petitioner's conviction became final. ( Id. at 4 (citing Bowen, 188 F.3d at 1158-59)). Therefore, the one-year limitations period began to run on that date and concluded on December 26, 2006. ( Id. ). The Magistrate Judge then noted, absent any statutory or equitable tolling, the Petition, filed nearly six years later, is untimely. ( Id. ).
In the R&R, the Magistrate Judge found that Petitioner is entitled to statutory tolling while his October 31, 2005 Notice of Post-Conviction Relief was pending (October 31, 2005 - November 4, 2005). However, because that filing was denied by the state court as untimely, it was not properly filed and did not cause the AEDPA's statute of limitations to be tolled. See Allen v. Siebert, 552 U.S. 3, 6 (2007).
Next, in the R&R, the Magistrate Judge found that Petitioner is entitled to statutory tolling for the time his second Notice of Post-Conviction Relief was pending (September 13, 2006 - September 26, 2008). It appears the state courts resolved this petition on the merits; therefore, the Court accepts the recommendation of the R&R that Petitioner is entitled to statutory tolling for this time period. Even giving Petitioner an extra 6 days of tolling, the Magistrate Judge then concluded that ...