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Andrada-Pastrano v. Waters

United States District Court, D. Arizona

July 30, 2015

Gerardo Edmundo Andrada-Pastrano, Petitioner,
v.
Kathy Waters, et al., Respondents.

ORDER

STEVEN P. LOGAN, District Judge.

Before the Court is Petitioner Gerardo Edmundo Andrada-Pastrano's Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 13). The Honorable Lawrence O. Anderson, United States Magistrate Judge, issued a Report and Recommendation ("R&R") (Doc. 23), recommending that the petition be denied with prejudice; Petitioner has objected to the R&R (Docs. 25, 29, 31). For the following reasons, the Court accepts and adopts the R&R, and denies the petition.

I. Background

In 1991, Petitioner was indicted in the Maricopa County Superior Court, Case No. CR XXXX-XXXXXX, of two counts of sexual conduct; one count for sexual conduct with a minor under the age of fourteen, and one count for sexual conduct with a minor over the age of fourteen. (Doc. 19-1, Exh. A.) On November 4, 1992, Petitioner entered in to a plea of no contest to an amended count of attempted sexual abuse, a dangerous crime against children in the second degree and class 4 felony. (Doc. 19-1, Exhs. I, J.) Pursuant to a stipulation in the plea agreement, on December 7, 1992, Petitioner was sentenced to a period of 4-months' incarceration, followed by seven years' probation. (Doc. 19-1, Exh. L.)

On November 1, 2012, Petitioner filed a Petition for Writ of Habeas Corpus in District Court (Doc. 1), and filed a Second Amended Petition on August 19, 2013 (Docs. 12, 13), in which he raises five grounds for relief. Respondents filed an Answer (Doc. 19), arguing that the petition should be dismissed as untimely, and alternatively, that Petitioner's claims are procedurally defaulted and barred from federal habeas corpus review.

II. Standard of Review

The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. See id.; Fed.R.Civ.P. 72(b)(3); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled as of right to de novo review of evidence and arguments raised for the first time in an objection to the R&R, and whether the Court considers the new facts and arguments presented is discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).

III. Discussion

Having reviewed the objected to recommendations de novo, the Court finds that the Magistrate Judge correctly concluded that Petitioner's claims are time-barred.

The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a State court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").[1] 28 U.S.C. § 2244. The AEDPA imposes a 1-year statute of limitations in which "a person in custody pursuant to the judgment of a State court" can file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1).

A. Commencement of Limitations Period

Petitioner was sentenced in 1992, and his conviction became final upon the expiration of the time for seeking an "of-right" petition for post-conviction review under Rule 32 of the Arizona Rules of Criminal Procedure in 1993. See Ariz. R. Crim. P. 32.4(a), 32.9(c); Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007); Gonzalez v. Thaler, 565 U.S. ___, 132 S.Ct. 641, 656 (2012). Because Petitioner's conviction became final well before the enactment of the AEDPA however, the limitations period did not commence until the day after it became effective, April 25, 1996. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).

Petitioner objects to the R&R on the basis that the limitations period should be calculated from the date of discovery of the factual predicate of his claim. See 28 U.S.C. § 2244(d)(1)(D) (the 1-year limitations period may also run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."). (Doc. 31 at 2.) Namely, Petitioner points to his discovery of 1992 police reports that show the victims in his case made similar allegations against two other men. He maintains that his federal habeas claims could not have been advanced until he obtained those police reports in 2008. As addressed by the Magistrate Judge however, Petitioner had listed these men as trial witnesses on his behalf ( see Doc. 19-1, Exh. W), and was aware that charges had been brought against them ( see Doc. 19-1, Exh. D) prior to accepting a plea. Thus, although Petitioner may not have obtained a copy of the police reports until 2008, ...


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