United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRIDGET S. BADE, Magistrate Judge.
Juan Ulises Martinez (Petitioner) has filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging his 2002 conviction in the Maricopa County Superior Court. (Doc. 1.) Respondents assert that the Petition should be dismissed as untimely under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which provides the statute of limitations applicable to state prisoners seeking federal habeas corpus relief. (Doc. 10.) Alternatively, Respondents argue that Grounds Two and Three are not cognizable on habeas corpus review, and that Petitioner's claims are procedurally defaulted and barred from federal habeas corpus review. ( Id. at 12-19.) Petitioner has not filed a reply in support of his Petition and the deadline to do so has passed. ( See Doc. 6 at 3.) As set forth below, the Court recommends that the Petition be denied as untimely and does not reach Respondents' alternative arguments.
I. Factual and Procedural Background
A. Charges, Trial, and Sentencing
In June 2001, Petitioner was indicted on one count of second-degree murder, a class one dangerous felony. (Doc. 10, Ex. B.) In January 2002, a jury convicted Petitioner as charged. (Doc. 10, Ex. A.) On January 29, 2002, the trial court sentenced Petitioner to an enhanced sentence of twenty years' imprisonment. (Doc. 10, Ex. C.)
B. Direct Appeal
Petitioner appealed to the Arizona Court of Appeals and argued that the trial court erred by enhancing his sentence based on a prior conviction for aggravated assault. Petitioner argued that even though he was convicted of that assault before he was convicted of murder, the assault itself occurred two days after the murder. (Doc. 10, Ex. A.) On December 5, 2002, the appellate court rejected Petitioner's claim and affirmed his conviction and sentence. ( Id. ) On April 17, 2003, the Arizona Supreme Court denied Petitioner's petition for review. (Doc. 10, Ex. G.)
C. Post-Conviction Proceedings
1. First Post-Conviction Proceeding
On May 8, 2003, Petitioner filed his first notice of post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure and was appointed counsel. (Doc. 10, Exs. J, K.) Counsel filed a notice stating that after review of the record, he could find no colorable claims. (Doc. 10, Ex. K.) Petitioner subsequently filed a pro se petition, arguing that the evidence at trial was "misleading." (Doc. 10, Ex. L.) Several months later, appointed counsel filed a second petition, arguing that trial counsel was ineffective for failing to present two witnesses who would have provided an alibi for Petitioner. (Doc. 10, Ex. M.) He provided affidavits from these two witnesses in which they attested to the alleged alibi. ( Id. )
The trial court held an evidentiary hearing. (Doc. 10, Ex. N.) The two alleged alibi witnesses, Pedro Alberto Ayala (Petitioner's friend) and Octavio Martinez Madero (Petitioner's brother) testified. ( Id. at 1.) Petitioner and trial counsel Lawrence Blieden also testified. ( Id. ) The alibi witnesses testified that they were with Petitioner in his apartment at the time of the murder. ( Id. ) Petitioner testified that he repeatedly told trial counsel that he had alibi witnesses, but trial counsel ignored him. ( Id. at 2.) Trial counsel testified that Petitioner never mentioned the witnesses to him, and these witnesses would have been very helpful because trial counsel was presenting a mistaken identity theory of defense. ( Id. ) Trial counsel further testified that the only alibi witness Petitioner told him about was Veronica Barnes, but when trial counsel contacted her, she denied being with Petitioner on the night of the murder. ( Id. ) The trial court found "the credibility of Mr. Blieden outweigh[ed] that of the defendant and his two alibi witnesses." ( Id. ) The trial court found the testimony of the two alibi witnesses and Petitioner "highly unlikely, " and denied relief on October 19, 2004. ( Id. at 2-3.) Petitioner did not seek review in the Arizona Court of Appeals. (Doc. 10, Ex. H.)
2. Second Post-Conviction Proceeding
On July 18, 2005, Petitioner filed a second notice of post-conviction relief. (Doc. 10, Ex. O.) He cited Rule 32.1(g), which allows for relief when there has been a significant change in the law, but he did not identify any significant change in the law and did not raise any claims. ( Id. ) The trial court summarily dismissed the proceeding on August ...