United States District Court, D. Arizona
D. THOMAS FERRARO, District Judge.
Vincent Mena, who is currently confined at the Federal Correctional Institution in Safford, AZ, has filed a Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254. Pending before the Court is the Petition (Doc. 1) and Respondents' Answer to Petition (Doc. 18). The parties consented to exercise of jurisdiction by a Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1). (Doc. 14.) The Court finds that the Petition should be dismissed on the ground that it is time-barred.
FACTUAL AND PROCEDURAL BACKGROUND
On December 31, 1992, Mena was convicted of burglary in the second degree, kidnapping, armed robbery, and two counts of sexual assault. He was sentenced to 46 years of incarceration on January 21, 1993. (Doc. 18, Exs. B, C.) Petitioner filed a Petition for Post-conviction Relief (PCR) on August 2, 1993, but subsequently filed a motion to withdraw it because he was in the process of filing a direct appeal. ( Id., Exs. I, J at 1.) On direct appeal, the Arizona Court of Appeals affirmed both his convictions and sentences on November 29, 1994. ( Id., Ex. L at 2.) Petitioner did not file a motion for reconsideration or a petition for review of his direct appeal, and the court of appeals issued a mandate on January 12, 1995. ( Id., Ex. M at 1.)
On May 12, 2011, Petitioner filed a Notice of PCR, which was denied on the merits on January 24, 2012. ( Id., Exs. N at 1, Q at 2.) He filed a petition for review with the Arizona Court of Appeals, which granted review but adopted the PCR court's order and denied relief. ( Id., Exs. R, S at 3.) His subsequent petition for review with the Arizona Supreme Court was denied on December 12, 2012. ( Id., Exs. T, U.)
On October 10, 2013, Mena filed his Petition for Writ of Habeas Corpus in this Court alleging a Due Process sentencing violation based on Blakely v. Washington, 542 U.S. 296 (2004). (Doc. 1 at 6.)
Respondents argue that Petitioner's claim is time-barred because the Petition violates the statute of limitations.
Statute of Limitations and Statutory Tolling
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), federal petitions for writ of habeas corpus filed by state prisoners are governed by a one-year statute of limitations period. 28 U.S.C. § 2244(d)(1). The limitations period begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation n of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...