United States District Court, D. Arizona
STEVEN P. LOGAN, District Judge.
Before the Court is Petitioner Christopher Adam Pena's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), and Motion for DNA Testing (Doc. 22). The Honorable Bridget S. Bade, United States Magistrate Judge, issued a Report and Recommendation ("R&R") (Doc. 34), recommending that the petition and motion be denied; Petitioner has objected to the R&R (Doc. 35). For the following reasons, the Court accepts and adopts the R&R, and denies the petition.
In 2006, Petitioner was indicted in the Maricopa County Superior Court, Case No. CR XXXX-XXXXXX, of five counts of aggravated assault. (Doc. 21-1, Exh. A.) Each count corresponded with one of five different victims, referred here to as: B.W. (Petitioner's downstairs neighbor), T.B. (B.W.'s sister), M.J. (T.B.'s boyfriend), M.H. and M.B. (T.B.'s two minor children). Petitioner was found guilty by jury trial on all counts, and on May 14, 2007, he was sentenced to a combination of terms totaling fifteen years of imprisonment. (Doc. 21-1, Exh. B.)
On October 30, 2013, Petitioner filed a Petition for Writ of Habeas Corpus in District Court (Doc. 1), raising ten claims for relief. Respondents filed an Answer (Doc. 21), in which they argue that the petition should be dismissed as untimely, and alternatively, that Petitioner's claims are either not cognizable or are procedurally 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).
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"). 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 2007. Following a timely direct appeal, on May 27, 2008, the Arizona Court of Appeals affirmed his convictions and sentences. (Doc. 21-3, Exh. L.) Petitioner did not seek review by the Arizona Supreme Court and therefore, his judgment became final on June 28, 2008. See 28 U.S.C. § 2244(d)(1)(A) (the 1-year limitations period runs from the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking such review); Gonzalez v. Thaler, 565 U.S. ___, 132 S.Ct. 641, 656 (2012) (where a state prisoner does not seek review in the State's highest court, the judgment becomes final on the date the time for seeking such review expires). Absent any tolling, the one-year limitations period would have commenced the following day, and expired on June 29, 2009.
B. Statutory and Equitable Tolling of Limitations Period
Petitioner's first notice of post-conviction relief was not filed until August 10, 2009, after the one-year statute of limitations period had expired on June 29, 2009. (Doc. 21-3, Exh. M.) As a result, neither the first notice of post-conviction relief, nor subsequent notice or petition, statutorily tolled the limitations period under 28 U.S.C. § 2244(d)(2). See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (once the AEDPA limitations period expires, a subsequently filed petition for post-conviction relief cannot restart the statute of limitations); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (state petition filed after the expiration of AEDPA's one-year period does not revive a limitations period that ended before state petition was filed). Further, because Petitioner's notice of post-conviction relief was denied as untimely (Doc. 21-3, Exh. N), it would not have tolled the ...