United States District Court, D. Arizona
REPORT AND RECOMMENDATION
EILEEN S. WILLETT, Magistrate Judge.
TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Petitioner Carman Nicholas King's ("Petitioner") Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (the "Petition") (Doc. 1). Respondents have filed their Answer (Doc. 15). Petitioner has filed a "Counter claim to respondents [sic], " (Doc. 16), which is deemed to be a Reply. The matter is deemed ripe for consideration.
Petitioner raises three grounds for habeas relief in the Petition. The undersigned finds that the Petition is time-barred under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214. It is therefore recommended that the Petition be denied and dismissed with prejudice.
On February 19, 2009, Petitioner signed a plea agreement in which Petitioner pled guilty to theft of means of transportation, a class 3 felony, in violation of Arizona law. (Doc. 15-1 at 38-40). The trial court accepted Petitioner's guilty plea. ( Id. at 42-43). At the March 23, 2009 sentencing hearing, the trial court suspended the imposition of sentence and placed Petitioner on a three-year term of supervised probation "commencing upon absolute discharge from prison for a separate offense." ( Id. at 51-53). On November 4, 2011, Petitioner was released from prison and Petitioner's probationary term commenced. ( Id. at 59).
On June 1, 2012, the State petitioned the trial court to revoke Petitioner's probation. ( Id. at 62-63). The State alleged that Petitioner violated several terms of his probation, including the first term that required Petitioner to obey all laws. ( Id. at 45-46, 62-63; 67-68). In a separate Arizona state criminal case filed in 2012, Petitioner was convicted for the crime of possession or use of dangerous drugs, a class 4 felony. (Doc. 15-3 at 164-65). On October 19, 2012, Petitioner admitted to violating the first term of his probation by committing the crime of possession or use of dangerous drugs. ( Id. at 165-66). The trial court accepted Petitioner's admission and revoked Petitioner's probation. ( Id. at 167-68). At the February 4, 2013 sentencing hearing, the trial court sentenced Petitioner to a 3.5 year term of incarceration, which was to run concurrently with Petitioner's sentence for the conviction of possession or use of dangerous drugs. ( Id. at 186; Doc. 15-1 at 81-84).
On March 15, 2013, Petitioner filed a notice of post-conviction relief ("PCR"). (Doc. 15-1 at 87-90). When Petitioner's appointed PCR counsel was unable to find a colorable claim for relief, the trial court ordered Petitioner to file a pro se PCR petition by September 9, 2013. ( Id. at 92, 104, 109). On September 27, 2013, the trial court dismissed the PCR proceeding as Petitioner failed to file a pro se PCR petition. ( Id. at 112). Petitioner filed a second PCR petition in December 2013 and a third PCR petition in 2014. ( Id. at 124-29, 131-33; Doc. 15-2 at 98, 104-15). As explained in more detail in Section III(B)(1) below, the trial court dismissed both petitions. (Doc. 15-2 at 74-75, 101).
On February 9, 2015, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief. The Court ordered Respondents to answer the Petition (Doc. 6). Respondents filed their Answer on May 22, 2015 (Doc. 14). Petitioner replied on June 8, 2015 (Doc. 16).
II. FEDERAL HABEAS LAW
A. Statute of Limitations Under the Antiterrorism and Effective Death Penalty Act of 1996
Under AEDPA, a state prisoner must file his or her federal habeas petition within one year of the latest of:
1. The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
2. The date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the petitioner was prevented from filing by the State action;
3. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
4. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1); see also Hammerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 ...