United States District Court, D. Arizona
Arturo A. Canez, Petitioner,
Charles L. Ryan, et. al., Respondents
Decided June 12, 2014.
[Copyrighted Material Omitted]
Arturo A Canez, also named as: Arturo Canez, Petitioner, Pro se, BUCKEYE, AZ.
For Charles L Ryan, Attorney General of the State of Arizona, Respondents: Ginger Jarvis, LEAD ATTORNEY, Office of the Attorney General, Phoenix, AZ.
Paul G. Rosenblatt, United States District Judge.
Before the Court is the Report and Recommendation of Magistrate Judge Logan (Doc. 32), which addresses Petitioner's First Amended Petition for Writ of Habeas Corpus, filed February 25, 2013, pursuant to 28 U.S.C. § 2254 (Doc. 12). Petitioner filed objections to the Report and Recommendation. (Doc. 34.)
Magistrate Judge Logan recommends that the Court deny the petition as barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1)(A). Magistrate Judge Logan concludes that Petitioner is not eligible for statutory or equitable tolling. Having reviewed the matter de novo, the Court will adopt the Report and Recommendation.
Petitioner's convictions and sentences became final on October 7, 2011. The limitations period was statutorily tolled until April 29, 2011, when Petitioner's timely-filed petition for postconviction relief was denied. (Doc. 20-2, Ex. P.) Petitioner filed his petition for habeas corpus relief on October 18, 2012 (Doc. 1), nearly six months after the limitations period expired.
For the reasons set forth in the Report and Recommendation, Petitioner's argument for additional statutory tolling fails because after April 29, 2011, no timely petition for review was pending. ( See Doc. 32 at 14-15; Doc. 20-2, Ex. R.) Petitioner's arguments for equitable tolling fail to meet the exceptionally high burden required for a showing that he had been " pursuing his rights diligently" and that " some extraordinary circumstances stood in [his] way." Pace v. DiGuglielmo, 544 U.S. 408, 418-19, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); see, e.g., Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003); Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000). Finally, Petitioner's actual innocence ...