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Salman v. Arpaio

United States District Court, D. Arizona

September 29, 2014

Michael Hashem Salman, Petitioner,
v.
Joseph M. Arpaio, et al., Respondents.

ORDER

ROSLYN O. SILVER, Senior District Judge.

Before the Court are Petitioner Michael Salman's objections to the Magistrate Judge's report and recommendation recommending denial of the Petition for Writ of Habeas Corpus ("Petition"). (Doc. 15, 16). For the following reasons, this Court sustains the Magistrate Judge's report and recommendation but will deny the petition on alternative grounds.

BACKGROUND

On May 7, 2010, Petitioner Michael Salman ("Petitioner") was convicted in the City of Phoenix Municipal Court of 67 counts of violating building codes and zoning ordinances. He was sentenced to three years' probation, sixty days imprisonment, $2, 000 in jail fees, and $10, 000 in fines. (Doc. 13, Exhs. C, G). Petitioner appealed his conviction to the Maricopa County Superior Court, which affirmed the judgments of conviction and sentences imposed. (Doc. 14, Exhs. D, G). Petitioner subsequently filed a motion to reconsider the superior court's entry (Doc. 13, Exh. H), which was denied. (Doc. 13, Exh. K). On July 7, 2011, Petitioner, through counsel, filed a Notice of Appeal, of the superior court's decision to the Arizona Court of Appeals. (Doc. 14, Exh. J). The court of appeals dismissed the appeal as untimely, meaning submitted more than 20 days after the entry of judgment and sentence. (Doc. 13, Exh. O).

On July 16, 2012, Petitioner, through counsel, filed a Petition for Writ of Habeas Corpus in the Arizona Supreme Court, which was denied. (Doc. 13, Exh. Q). On August 15, 2012, Petitioner filed his Petition for Writ of Habeas Corpus in this District Court. (Doc. 1). Petitioner raises two grounds for relief in the Petition. (Doc. 1 at 5-8). In Ground One, Petitioner alleges the Municipal Court's convictions violate his "due process and equal protection rights under the Fourteenth Amendment." In Ground Two, Petitioner alleges the convictions violate his "rights to freely exercise his religion and to assemble under the First Amendment and RLUIPA because they are not the least restrictive means of furthering any compelling government interest."

Respondents argued the federal petition should be dismissed as time-barred and, alternatively, as procedurally defaulted. (Doc. 13). The Magistrate Judge determined the Petition was time-barred and never reached Respondents' exhaustion argument. (Doc. 15). The Magistrate Judge found some of Petitioner's claims were barred from review by the Arizona Court of Appeals under A.R.S. § 22-375, [1] which has been interpreted to provide for appeals for challenges to an ordinance's facial validity, but not to its as-applied constitutionality. Id.

The Magistrate Judge acknowledged some of Petitioner's claims were facial challenges, while others were as-applied challenges. (Doc. 15). Petitioner's facial challenges were appealable to the court of appeals within 20 days after his dismissal by the superior court. Id. Petitioner did not appeal until July 7, 2011. (Doc. 13, Exh. J). The Magistrate Judge determined the one-year period for filing a federal habeas petition began to run on June 23, 2011, the date on which Petitioner's time for filing a timely appeal expired. (Doc. 15). The Petition filed on August 15, 2012 was, according to the Magistrate Judge, untimely by almost two months. Id.

Petitioner argues the Magistrate Judge erred in calculating the limitations period for all of Petitioner's claims. Instead, those claims that were appealable to the court of appeals should have been distinguished from those that were not. (Doc. 16). According to Petitioner, the Magistrate Judge should have found he had 90 days to appeal his as-applied claims. Id. He argues those claims were appealable only to the United States Supreme Court, which, unlike the Arizona Court of Appeals, provides 90 days to apply for a writ of certiorari from the entry of the lower court judgment. Id. Under this calculus, the one-year period for filing a federal habeas petition regarding Petitioner's as-applied claims would have begun on August 31, 2011, not June 23, 2011, and Petitioner's August 15, 2012 Petition would have been timely. Id.

ANALYSIS

I. Standard of Review for Report and Recommendation

A district judge "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). Where any party has filed timely objections to the magistrate judge=s report and recommendations, the district court's review of the part objected to is to be de novo. Id . See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Mortensen v. BAC Home Loans Servicing, LP, 1:10-CV-00298-EJL, 2013 WL 943085 (D. Idaho Mar. 8, 2013). Petitioner's objections to the Report and Recommendation do not object to the facts but only to the legal conclusions to be drawn from those facts. Thus, the Court will review the legal issues de novo.

II. Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), state prisoners have a one-year period in which to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Generally, the limitations period runs from the latest of either the date on which the judgment became final through the conclusion of direct review or the date on which the time for seeking such review expired. 28 U.S.C. § 2244(d)(1)(A). In Gonzalez v. Thaler , the Supreme Court clarified this standard for petitioners who have the option to appeal to the Supreme Court of the United States:

For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the "conclusion of direct review"-when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the "expiration of the time for seeking such ...

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