United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, Magistrate Judge.
Pending before the court is a petition for writ of habeas corpus filed on April 23, 2014, by Christopher Daniel Trejo, an inmate confined pursuant to a judgment of the Pima County Superior Court, Tucson Arizona. (Doc. 1, p. 1)
Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order dismissing the petition. It is time-barred.
Summary of the Case
Trejo was convicted after a jury trial of "fourteen felonies arising from a home invasion and ensuing police chase." (Doc. 1-2, p. 2) The trial court sentenced Trejo to "a combination of consecutive and concurrent aggravated prison terms, totaling 77.5 years." Id. On direct appeal, Trejo argued (1) the prosecutor committed misconduct during the trial,
(2) the evidence was insufficient for conviction because it was circumstantial, (3) the trial court failed to dismiss "two jurors who had heard news reports of his codefendant's attempted escape from jail, " and (4) the trial court improperly aggravated his sentences based on circumstances not found by the jury in violation of Blakely v. Washington . (Doc. 1-2, p. 9)
The Arizona Court of Appeals affirmed Trejo's convictions and sentences on June 10, 2005. (Doc. 1-2, pp. 1-15) The Arizona Supreme Court denied Trejo's petition for review on January 5, 2006. (Doc. 13-3, p. 40) Trejo did not file a petition for review with the U.S. Supreme Court. (Doc. 1, pp. 4-5)
Trejo alleges he filed notice of post-conviction relief "[o]n or about June 9, 2011." (Doc. 1, p. 5) He maintains his petition was denied in December of 2013. Id. He further alleges he appealed this denial to the Arizona Court of Appeals and to the Arizona Supreme Court. Id. The respondents maintain there is no record of this petition in the court files. (Doc. 13, p. 3)
On April 23, 2014, Trejo filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims the trial court improperly aggravated his sentences based on circumstances not found by the jury in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004) and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007). Id.
On July 23, 2014, the respondents filed an answer arguing among other things that the petition is time-barred. (Doc. 13) Trejo did not file a reply. The respondents are correct; the petition is time-barred.
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, however, must be filed within the applicable limitation period or it will be dismissed.
A one-year limitation period applies to persons in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d). The limitation ...