United States District Court, D. Arizona
JAMES A. TEILBORG, District Judge.
Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition") (Doc. 1). 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. 20 at 19). The R&R further recommended that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied. ( Id. )
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). 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); 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 an objection is made."). In this case, Petitioner filed objections to the R&R (Doc. 23), and the Court will review these objections de novo.
II. FACTUAL AND PROCEDURAL BACKGROUND
The R&R summarized the factual and procedural history of the case and neither party objected to this history. (Doc. 23 at 1-15). Therefore, the Court adopts that portion of the R&R in this case. The relevant portion of the factual and procedural background is included below.
On November 16, 2001, Petitioner was indicted by grand jury with 33 counts in cause number CR-2001-1461, including: 11 counts of second-degree burglary, class 3 felonies (counts 1, 3, 5, 7, 16, 18, 20, 23, 26, 30, 33); six counts of theft, class 3 felonies (counts 2, 4, 6, 8, 9, 12); three counts of first-degree trafficking in stolen property, class 2 felonies (counts 10, 11, 13); 12 counts of unlawful surreptitious videotaping, class 5 felonies (counts 14, 17, 19, 21, 22, 24, 25, 27, 28, 29, 31, 32); and one count of molestation of a child, a class 2 felony (count 15). (Exh. A.) On January 10, 2002, Petitioner was indicted by a grand jury and charged with 19 counts of sexual exploitation of a minor, class 2 felonies, in matter number CR-2002-0051, in connection with child pornography that was found on his computer. (Exh. B.)....
On August 20, 2002, Petitioner entered into a plea agreement, whereby he agreed to plead guilty to five counts of burglary in the second degree, all class 3 felonies, as charged in counts 1, 3, 5, 7 and 12; two counts of trafficking in stolen property in the first degree, class 2 felonies, as charged in counts 10 and 11; and 12 counts of unlawful surreptitious taping, each class 5 felonies, as charged in counts 14, 17, 19, 21, 22, 24, 25, 27, 28, 29, 31 and 32. (Exh. T.) As part of the plea agreement, the remaining counts were dismissed. ( Id. )
The agreement provided that Petitioner would receive a sentence of 7 years in prison for one count of burglary, and 8 years for each of the four remaining burglary counts. ( Id. ) Petitioner would also receive 10 years for each count of trafficking in stolen property, 3.5 years for each of 11 counts of surreptitious taping, and 2.5 years for one count of surreptitious taping. ( Id. ) Petitioner's sentence totaled 100 years and the State agreed not to prosecute him for any other crime he had committed, other than homicide. ( Id. )
The agreement stated that Petitioner "shall not have any right to appeal from the judgment or sentence imposed as a result of this stipulated guilty plea." ( Id. ) The agreement also stated that Petitioner "gives up any and all motions, defenses, objections or requests which he has made or raised, or could assert hereafter, and agrees to the court's entry of judgment against him and imposition of a sentence upon him consistent with the stipulation." ( Id. )
On August 8, 2002, the court held a change-of-plea hearing. (Exhs. U, AAA.) During the hearing, the court went over the terms of the agreement with Petitioner, including the various counts to which he was pleading guilty, Petitioner's admission to the prior convictions, and the fact that he would be sentenced with one historical prior on each count.... (Exh. AAA at 3-5.)
After the court told him that his only avenue for appeal would be a Rule 32 petition for post-conviction relief, Petitioner stated "I understand that. I'm not going to file a Rule 32." ( Id. at 15.)
Petitioner pleaded guilty to all charges specified in the agreement. ( Id. at 17-19; 10-11; 24-28.) The court asked Petitioner whether he had committed each of the burglaries with which he was charged, and Petitioner admitted that he did. ( Id. at 20-11.) The court also asked Petitioner whether he had engaged in trafficking stolen property as provided in the indictment, and Petitioner admitted that he did.... ( Id. 23-28.)
The court found that Petitioner had "knowingly, intelligently, and voluntarily entered into each plea and admission of prior felony convictions, " that "[t]here are factual bases for each crime, " and accepted the plea. ( Id. at 48-49.)
The court sentenced Petitioner on September 12, 2002. (Exhs. Y, ZZ.)...
The court found no mitigating factors.... All sentences were consecutive and added up to 100 years. ( Id. at 22.)
On May 5, 2005, Petitioner filed a notice of Rule 32 post-conviction relief. (Exh. Z.) Petitioner alleged that:
A computer and videotapes were not discribed [sic] in the search warrant. Constitution of the [U]nited States of America Amendment (4) the right of the people to be secure in their persons, house papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. A.R.S. 13-4037[.]
Petitioner also stated: "power of Supreme Court to correct and reduce sentence upon appeal by defendant. Unreasonable sentence." ( Id. ) Petitioner also made the following allegation:
Ineffective counsel, who should of [sic] filed a special action my appointed counsel Michael R. Grondin #020828 was on drugs (meth) at the time of my case and was shortly thereafter convicted of drug use and theft. Also should of [sic] filed any direct ...