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Molina v. Ryan

United States District Court, D. Arizona

April 24, 2015

Fernando R. Molina, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

D. THOMAS FERRARO, Magistrate Judge.

Fernando Molina 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. 15). The parties consented to exercise of jurisdiction by a Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1). (Doc. 18.) The Court finds that the Petition should be dismissed on the ground that it is time-barred.

FACTUAL AND PROCEDURAL BACKGROUND

On November 15, 2010, Molina was convicted of two counts of aggravated assault with a deadly weapon and one count of aggravated assault against a minor under fifteen. He was sentenced to concurrent terms, the longest of which was twenty-one years. (Doc. 1 at 2; Doc. 15, Ex. A at 2, 3.) Molina filed a direct appeal, which was denied on August 19, 2011. (Doc. 15, Ex. A.) His petition for review to the Arizona Supreme Court was denied on January 10, 2012. ( Id., Ex. B.)

On February 22, 2012, Molina filed a Notice of Post-conviction Relief (PCR). ( Id., Ex. C.) Appointed counsel filed a notice that he could not find any colorable claims. ( Id., Ex. D.) Molina was granted until September 4, 2012, to file a pro se PCR petition. ( Id., Ex. E.) When he did not file a petition, the PCR court denied relief on October 9, 2012. ( Id., Ex. F.)

On July 25, 2014, Molina filed his Petition for Writ of Habeas Corpus in this Court. (Doc. 1.)

DISCUSSION

Respondents argue that Molina's Petition violates the statute of limitations and is time-barred.

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 ...

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