United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"). The Magistrate Judge 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. (Doc. 11 at 9). The R&R further recommended that a Certificate of Appealability be denied. ( Id. at 10).
I. REVIEW OF AN R&R
This 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) (emphasis in original). 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 [report and recommendation] to which objection is made"). In this case, Petitioner filed Objections to the Report and Recommendation (Doc. 12), and the Court will review those objections de novo.
II. FACTUAL AND PROCEDURAL BACKGROUND
The R&R summarized the factual and procedural history and neither party objected to this history. (Doc. 11 at 1-4). Therefore, the Court adopts that portion of the R&R in this case. That history is as follows:
[A] grand jury indictment returned against Petitioner and several co-defendants on November 19, 2007, in Maricopa County Superior Court, charged Petitioner with three counts of kidnapping, each classified as a class 2 dangerous felony (Counts 1-3); one count of aggravated assault, alleged as a class 3 dangerous felony (Count 4); three counts of theft by extortion, each classified as a class 2 dangerous felony (Counts5-7); one count of smuggling, a class 4 felony (Count 8); and misconduct involving weapons, a class 4 felony (Count 9). See Answer, Exh. A. The charges were related to Petitioner's involvement in operating what is known as a "drop house" for illegal migrants in the Phoenix, Arizona, metropolitan area.
At the conclusion of a jury trial, Petitioner was found guilty as charged on Counts 1 through 8. Id., Exh. C at 2-4 & Exh. B at 6-7. The jury could not reach a unanimous decision on Count 9, and, as a result, the state dismissed that count against Petitioner. Id., Exh. B at 7-8. The trial court subsequently sentenced Petitioner to various consecutive and concurrent sentences of seven and five years imprisonment, comprising an aggregate sentence of twenty-six years imprisonment. Id., Exh. D.
Petitioner took a timely direct appeal of his convictions and sentences. Id., Exh. E. Petitioner's appointed counsel submitted an Anders brief to the court, averring he could not find any arguable claim to raise on Petitioner's behalf. Id., Exh. F at 2. Petitioner "was afforded the opportunity to file a supplemental brief in propria persona, " but did not file such a brief. Id., Exh. F. On March 2, 2010, the Arizona Court of Appeals issued a memorandum decision affirming Petitioner's convictions and sentences, while correcting a discrepancy in the record. Id., Exh. F. Petitioner did not seek review of this decision by the Arizona Supreme Court. Id., Exh. G.
On September 15, 2011, Petitioner docketed a notice of intent to seek state post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Id., Exh. H. The state trial court noted that Petitioner's notice was not timely but, nonetheless, the court appointed counsel to "investigate the potential claims that may entitle [Petitioner] to post-conviction relief." Id., Exh. I at 2. Petitioner's appointed post-conviction counsel reviewed the record and averred to the court he could not find any colorable claims to raise on Petitioner's behalf. Id., Exh. J at 1-2. Petitioner filed a pro se petition in his Rule 32 action, asserting he was denied the effective assistance of counsel in his trial proceedings. Id., Exh. K. Petitioner subsequent[ly] sought to amend his Rule 32 pleading, asserting he had failed to include "2 additional grounds that were omitted along with 2 exhibits." Id., Exh. M at 1. Petitioner also asserted that he wanted to raise a newly-discovered-evidence claim under Rule 32.1(e) and that his failure to timely file his Rule 32 action was not due to his own error, citing Rule 32.1(f). Id., Exh. M at 2.
In a decision entered August 23, 2012, the state trial court dismissed Petitioner's Rule 32 action as both untimely and for failing to state a colorable claim for relief. Id., Exh. N. Petitioner sought review of this decision by the Arizona Court of Appeals, which granted review and denied relief in a decision entered December 23, 2013. Id., Exh. P. The appellate court concluded that the petition was not timely and, as a result, that Petitioner's claims of ineffective assistance of counsel were precluded. Id., Exh. P at 3-5. The appellate court also concluded that Petitioner had abandoned his claim of newly discovered evidence, and further found that a claim under Rule 32.1(f) was not cognizable because Petitioner was not a "pleading defendant." Id., Exh. P at 4 & n.2.
(Doc. 11 at 1-4).
As indicated above, on July 10, 2014, the Magistrate Judge issued an R&R recommending that the Petition be denied as barred by the AEDPA's statute of limitations. ( Id. at 1-9). As explained by the Magistrate Judge, the AEDPA, 28 U.S.C. § 2241(d)(1), provides a one year statute of limitations for state prisoners to file a petition for writ of habeas corpus in federal court. ( Id. at 4 (citing Espinoza Matthews v. California, 432 F.3d 1021, 1025 (9th Cir. 2005); Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002))). 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. at 4 (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 April 2, 2010. ( Id. at 5). That is when Petitioner's time to seek review of the Arizona Court of Appeals' March 2, 2010 decision ...