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Altamirano v. Ryan

United States District Court, D. Arizona

January 20, 2016

Victor Altamirano, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

Steven P. Logan United States District Judge

Petitioner Victor Altamirano, who is confined in the Arizona State Prison Complex-Florence, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). United States Magistrate Judge Mark E. Aspey issued a Report and Recommendation (“R&R”) (Doc. 11) recommending that the petition be denied, and Petitioner objected to the R&R (Doc. 12). For the following reasons, the Court accepts and adopts the R&R, and denies the petition.

I. Background

On April 4, 2007, a grand jury indicted Petitioner in the Maricopa County Superior Court, Case No. CR 2007-103129, on two counts of aggravated driving or physical control while under the influence of intoxicating liquor or drugs. (Doc. 9-1, Exh. A.)[1] Following a jury trial, Petitioner was found guilty of both charges. He was sentenced to two concurrent terms of twelve years of imprisonment on March 12, 2008. (Doc. 9-1, Exh. C.)

On January 27, 2014, Petitioner filed the instant Petition for Writ of Habeas Corpus in federal court, raising four claims for relief. (Doc. 1.) Respondents filed an Answer (Doc. 9) in which they argue that the petition should be dismissed as untimely, and alternatively, that Petitioner’s claims fail on their merits.

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. 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”).[2] 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

Here, the 1-year limitations period began to run when the time for seeking direct review expired. 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). Following a timely direct appeal, the Arizona Court of Appeals issued its decision affirming Petitioner’s convictions on December 1, 2009. (Doc. 9-1, Exh. B; State v. Altamirano, 2009 WL 4280040 (Ariz.Ct.App. Dec. 1, 2009). Petitioner did not file a petition for review. Therefore, judgment became final on December 31, 2009, when the time for filing a petition for review by the Arizona Supreme Court expired.[3] See Ariz. R. Crim. P. 31.19(a) (“Within 30 days after the Court of Appeals issues its decision, any party may file a petition for review with the clerk of the Supreme Court”); White v. Klitzkie, 281 F.3d 920, 924, fnt. 4 (9th Cir. 2002) (“it is the decision of the state appellate court, rather than the ministerial act of entry of the mandate, that signals the conclusion of review”).

It follows that, absent any tolling, the one-year limitations period would have ...


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