United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before this Court is Nicholas Blackwater's ("Petitioner") Petition for Writ of Habeas Corpus ("Petition"). (Doc. 1.) The Magistrate Judge issued a Report and Recommendation ("R&R") recommending that the Petition be denied and dismissed with prejudice because the one year statute of limitations established by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") has expired. (Doc. 12 at 13.) The R&R further recommended that a Certificate of Appealability be denied. (Id. )
I. REVIEW OF AN R&R
After receiving an R&R, the Court "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)(1). A district judge "must review the magistrate judge's findings and recommendations de novo if objection is made. " United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made"). In this case, Petitioner filed Objections to the R&R and the Court will review Petitioner's Objections de novo. (Doc. 13.)
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 2005, a Maricopa County Grand Jury indicted Petitioner on 14 felony Counts. (Doc. 7-1 at 1-8.) The facts underlying Petitioner's indictment are as follows: on multiple occasions, Petitioner picked up women in his car, took them to a remote location and raped them, in some instances threatening them with a knife. (Id. at 21-24.) These events occurred on June 16, 1997, August 28 or 29, 1997, June 22, 1999, and October 26, 2001. (Id. ) On July 30, 2000, another woman claimed that Petitioner raped her; however, officers had no means of contacting the victim after the initial police report. (Doc. 12 at 4.)
On February 22, 2006, Petitioner entered a plea agreement. (Doc. 7-1 at 11-16.) He pleaded guilty to: Counts 4, 9, and 14 as charged, sexual assault, class 2 felonies; Count 5 as charged, kidnapping, a class 2 felony; Count 3 as charged, sexual abuse, a class 5 felony; and Count 6 as amended, attempted sexual assault, a class 3 felony. (Id. ) In exchange, the State agreed to dismiss Counts 1, 2, 7, 8, 10, 11, 12, and 13; the allegations of dangerousness, and not to file charges from the offense on July 30, 2000. (Id. ) On March 23, 2006, Petitioner was sentenced to an aggravated term of 14 years of imprisonment on Count 4; to an aggravated term of 12.5 years of imprisonment on Count 5, to be served consecutively to Count 4; to an aggravated term of 14 years of imprisonment on Count 9, to be served consecutively to Count 5; to an aggravated term of 14 years of imprisonment on Count 14, to be served consecutively to Count 9. (Doc. 7-1 at 40-46.) Petitioner was also placed on lifetime probation for Counts 3 and 6, to commence upon discharge from prison for each separate offense in Counts 4, 5, 9, and 14 (Id. )
On March 23, 2006, Petitioner was sentenced and signed a notice of rights. (Doc. 7-1 at 47-49.) The notice of rights explained that by entering into a plea agreement, Petitioner waived his right to appeal, and a notice of post-conviction relief must be filed "within 90 days of the entry of judgment, " otherwise he "may never have another opportunity to have any errors made in [his] case corrected by another court." (Id. ) Petitioner claims he is unhappy with his sentence, it was not part of his plea agreement, and he is entitled to post-conviction relief. (Doc. 1 at 6-9.) Petitioner also claims that he asked his attorney to file a notice of post-conviction relief, which his attorney failed to do. (Doc. 13 at 1-3.)
On April 6, 2007, 379 days after Petitioner was sentenced, Petitioner filed a notice of post-conviction relief, which was dismissed by the state court as untimely. (Doc. 7-1 at 50-54.) On both August 20, 2008, and February 20, 2009, Petitioner filed a request for status of defendant's post-conviction relief. (Doc. 7-1 at 57-61.) Petitioner was provided with a copy of a minute entry denying his petition for post-conviction relief as untimely. (Doc. 7-1 at 62-63.) On November 16, 2010, Petitioner filed a second petition for post-conviction relief, which was also dismissed by the state court as untimely. (Doc. 7-1 at 64-75.) On March 6, 2012, Petitioner filed a third petition for post-conviction relief, which the state court dismissed as untimely as well. (Doc. 7-1 at 86-114.)
After all of his petitions for post-conviction relief were denied by the state court, Petitioner filed his Petition for Writ of Habeas Corpus in this Court on July 8, 2014. (Doc. 1.)
III. GOVERNING LAW AND RECOMMENDATION
As stated above, the Magistrate Judge issued an R&R recommending that the Petition be denied and dismissed with prejudice. (Doc. 12.) As explained by the Magistrate Judge, a state prisoner has one year from the time a sentence becomes final to file a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). Under Arizona Rule of Criminal Procedure 32 ("Rule 32"), a petition for post-conviction relief is a form of direct review for defendants who entered guilty pleas. Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). A conviction becomes final under Rule 32 once an "of-right" proceeding is completed; or the time to file a petition for post-conviction relief expires. Id. The Magistrate Judge found that Petitioner did not file a petition for post-conviction relief within the ninety day deadline set by Rule 32. (Doc. 12 at 13.) Therefore, Petitioner's AEDPA statute of limitations began to run when that ninety day period expired. (Id. )
The Magistrate Judge explained that the statute of limitations is generally tolled after an individual properly files a notice of post-conviction relief. (Doc. 12 at 10.) The time during which a case is pending is not counted against the petitioner's federal habeas statute of limitations, and the petitioner is entitled to statutory tolling. See Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). When a petition for post-conviction relief is not filed within the state court's time limit, that petition is not considered to be properly filed. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). If a petition is not properly filed, that petitioner is not entitled to statutory tolling. Id.
Under Rule 32, once post-conviction relief is concluded, the statute of limitations under the AEDPA begins to run. Summers, 481 F.3d at 710. For example, if two petitions for post-conviction relief are denied, the time between those two petitions for post-conviction relief does not toll the statute of limitations since no petition is "pending." Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2004). Additionally, the Magistrate Judge noted that filing a new petition for post-conviction relief does not hit a reset button on a ...