United States District Court, D. Arizona
ORDER DISMISSING PETITION FOR HABEAS CORPUS
SHARON L. GLEASON, District Judge.
Before the Court is a Petition for Writ of Habeas Corpus ("Petition") filed on July 29, 2013 by Petitioner Gettus Leroy Mintz pursuant to 28 U.S.C. § 2254. On October 2, 2014, Magistrate Judge James F. Metcalf issued a Report and Recommendation ("R&R") recommending that the Petition be dismissed with prejudice and that a Certificate of Appealability be denied. On October 20, 2014, Mintz filed objections to the R&R.
For the reasons set forth herein, the Court will accept the Magistrate Judge's recommendation and, accordingly, the Petition will be denied and this action dismissed with prejudice. However, the Court will grant a limited Certificate of Appealability.
FACTUAL AND PROCEDURAL BACKGROUND
The R&R summarizes the factual and procedural background of this case and, except as discussed below, Mintz has not objected to the Magistrate Judge's recital.
Mintz's Petition asserts four grounds for relief:
1. Ineffective assistance of trial counsel in violation of the Sixth Amendment in connection with trial counsel's failure to investigate and challenge the state's alleged use of certain perjured testimony.
2. Ineffective assistance of post-conviction relief (PCR) counsel in violation of the Sixth Amendment in connection with PCR counsel's failure to raise meritorious arguments.
3. Ineffective assistance of trial, appellate, and PCR counsel for not presenting exculpatory evidence or challenging false evidence presented by the prosecution.
4. Prosecutorial misconduct and violation of Mintz's Sixth Amendment rights related to the presentation of perjured testimony.
The R&R concluded that, without any tolling, Mintz's one year limitations period under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) expired on December 31, 2011. The Magistrate Judge then analyzed statutory tolling of the limitations period and concluded that Mintz's first PCR proceeding and motion for reconsideration extended the limitations period to November 22, 2012. The Magistrate Judge determined that Mintz's Second and Third PCR petitions were untimely and do not entitle Mintz to additional tolling.
The R&R also determined that equitable tolling was not applicable based on either (1) Mintz's pro se status, or (2) the District Court's dismissal of his first habeas petition without prejudice for failure to exhaust state remedies.
Accordingly, the R&R concluded that Mintz's July 29, 2013 Petition was untimely because it was filed after the AEDPA limitations period, which had expired on November 22, 2012, and ...