United States District Court, D. Arizona
ROSLYN O. SILVER, Senior District Judge.
Before the Court is Petitioner Jason Adel Kadri's objection to the report and recommendation of the Magistrate Judge. (Docs. 24, 21). For the following reasons, the magistrate judge's recommendation will be adopted in full and the petition denied.
Petitioner was indicted on May 15, 2009 in Maricopa County Superior Court on five counts of possession of dangerous drugs for sale, marijuana for sale, and drug paraphernalia. Prior to trial, Petitioner's counsel moved to suppress evidence based on an alleged lack of reasonable suspicion for the traffic stop during which the evidence was obtained. The motion was denied. Petitioner was eventually convicted on all counts. On May 12, 2010, he was sentenced to 15.75 years in prison based at least in part on his stipulation to five prior convictions.
I. Appeal of Sentence
Petitioner appealed claiming counsel had not fully advised him of his rights before entering the stipulation. On October 25, 2011, the Arizona Court of Appeals held in his favor, finding the record did not show Petitioner had been fully apprised of his constitutional rights and that documents supporting his five convictions were not admitted before the trial court. Based on this, the court remanded for the trial court to determine whether Petitioner would have stipulated to the convictions if he had been afforded a full colloquy, in other words, if he could prove prejudice with respect to the error that had been found. On January 27, 2012, following a hearing, the trial court held no prejudice had occurred and affirmed Petitioner's sentence.
II. Appeal of Conviction
At the same time he was appealing his sentence, Petitioner also filed a petition for post-conviction relief, arguing, on various grounds, that he had suffered ineffective assistance of counsel. On November 3, 2011, following oral argument and an evidentiary hearing, the court denied the petition on the merits. The court also denied the motion for reconsideration that followed. Petitioner did not appeal that denial.
Approximately eight months later, on August 3, 2012, Petitioner filed a Petition for Special Action, arguing the PCR court had abused its discretion and that PCR counsel was ineffective in failing to timely seek review of the court's decision. On August 7, 2012, the Arizona Court of Appeals dismissed the petition. Petitioner's Petition for Review by the Arizona Supreme Court was likewise denied on January 31, 2013.
On March 14, 2014, Petitioner filed the present Petition for Writ of Habeas Corpus. The Magistrate Judge determined the petition was untimely and recommended denial. Petitioner argues equitable tolling is appropriate and renders his petition timely.
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 a magistrate judge's report and recommendations, a 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 ...