United States District Court, D. Arizona
Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. (Doc. 1.) The Court referred the Petition to United States Magistrate Judge Boyle. (Doc. 31.) Judge Boyle issued a Report and Recommendation (“R&R”) recommending that the Court deny and dismiss with prejudice Petitioner’s Petition. (Doc. 37 at 18.) The Petitioner filed objections to the R&R on July 15, 2015. (Doc. 40.) Respondents did not file a response. For the following reasons, the Court accepts the R&R and denies and dismisses the Petition with prejudice.
I. Plea Agreement and Sentencing
On June 14, 2005, the State indicted Petitioner on four counts: sexual abuse, a class 5 felony (Count 1); attempted sexual abuse, a class 2 felony (Count 2); kidnapping, a class 2 felony (Count 3); and aggravated assault, a class 6 felony (Count 4). (Doc. 23, Ex. A.) On October 13, 2006, Petitioner entered into a plea agreement. (Doc. 23, Exs. J, K.) Petitioner agreed to plead guilty to Counts 1, 2 and 3. (Doc. 23, Ex. K.)
On December 7, 2006, the court imposed a mitigated sentence of four years for Count 3 (kidnapping), to run concurrently with Petitioner’s sentence in a prior matter (CR 2005-113881-001 DT). (Doc. 23, Exs. Q, R at 25-26.) For Counts 1 (sexual assault) and 2 (attempted sexual assault), the court placed Petitioner on concurrent terms of lifetime probation to run consecutively to his prison sentence on Count 3. (Id.) In August 2008, Petitioner completed his sentence on Count 3, and began his probation on Counts 1 and 2. (Doc. 23, Ex. KK at 3.)
II. Federal Petition for Writ of Habeas Corpus
On January 8, 2014, Petitioner filed the instant Petition for Writ of Habeas Corpus. (Doc. 1.) Judge Boyle recommended that Petitioner’s Petition be denied and dismissed with prejudice because the Petitioner filed his Petition after the pertinent one-year statute of limitations had elapsed, and Petitioner presented no basis for the application of statutory tolling, equitable tolling, nor sufficient evidence to merit an actual innocence exception under Schlup v. Delo, 513 U.S. 298 (1995). (Id.) After the Court granted him an extension, Petitioner filed his objections to the R&R on July 15, 2015. (Doc. 40.) Respondents filed no response.
I. Petitioner’s Objections
The R&R recommends denying and dismissing the Petition for untimeliness, since the Petitioner filed his Petition on January 8, 2014, yet AEDPA’s one-year limitations period ended on March 8, 2008. (Doc. 37.) Moreover, Judge Boyle found that Petitioner presented insufficient proof of statutory tolling, equitable tolling, or actual innocence. (Id.)
In his objections, Petitioner does not contest the R&R’s determination of untimeliness. Rather, Petitioner restates the arguments raised in his original Petition and Reply to Respondent’s Answer to his original Petition in support of the legal exceptions to the timeliness issue.
Magistrate Judge Boyle, however, already fully and accurately addressed these issues in his R&R. (See Doc. 37.) Rule 72(b) directs that a district judge “shall make a de novo determination . . . of any portion of the magistrate judge’s disposition to which specific written objection has been made[.]” Id. (emphasis added). Petitioner failed to object at all to the R&R’s finding of no statutory tolling, and Petitioner only reargued his previous points in support of equitable tolling. Pursuant to Rule 72(b), the Court is relieved of any obligation to review the R&R on these issues. See Thomas, 474 U.S. at 149 (Section 636(b)(1) “does not . . . require any review at all . . . of any issue that is not the subject of an objection.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). The Court, therefore, accepts the R&R on these points, as it is well-founded.
A. Actual Innocence
In his objection, Petitioner also presented new evidence and arguments in support of a finding of an actual innocence exception. (See Doc. 40 at 3, 17.) If a petitioner can produce sufficient proof of his actual innocence, such a showing “serves as a gateway through which [the] petitioner may pass . . . [the] expiration of [§ 2244(d)’s one-year] statute of limitations.” McQuinn v. Perkins, 133 S.Ct. 1924, 1928 (2013) (citing Schlup, 513 U.S. at 315-16); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (recognizing the actual innocence exception to AEDPA’s one-year statute of limitations under). The evidence of innocence must be “so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. To prove constitutional error, the Petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. at 324. The Court then “consider[s] all the evidence, old and new, incriminating and exculpatory, ” whether it be admissible at trial or not. House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted); Carriger v. Stewart, 132 F.3d 463, 477-78 (9th Cir. 1997) (en banc). On ...