United States District Court, D. Arizona
Honorable Rosemary Marquez, United States District Judge
before the Court is Petitioner Terry Lyn McCutcheon’s
Amended Petition for Writ of Habeas Corpus (Doc. 5). On April
7, 2016, Magistrate Judge Leslie Bowman issued a Report and
Recommendation (Doc. 19) recommending that this Court deny
the Amended Petition as time-barred. On May 5, 2016,
Petitioner filed an Objection (Doc.20).
was found guilty by a jury of two counts of armed robbery,
three counts of aggravated assault, and three counts of
kidnapping, stemming from an April 25, 1984 drug-store
robbery. (Doc. 10-1 at 5, 36.) On May 8, 1987, he was
found-after an evidentiary hearing-to have committed the
offenses while on parole, and he was sentenced to eight
concurrent life sentences, without possibility of parole for
twenty-five years. (Id. at 36-37.) The Arizona
Supreme Court affirmed his convictions and sentence on direct
appeal. (Id. at 2-13)
January 2, 2013, Petitioner filed a Notice of Petition for
Post-Conviction Relief (“PCR”) in the Pima County
Superior Court. (Doc. 10-2 at 2.) In his PCR Petition,
Petitioner argued (1) that his 1987 sentence was improperly
aggravated due to a mistaken belief that Petitioner was on
parole at the time of the offenses for which he was
convicted, and (2) that he received ineffective assistance of
counsel because his trial and appellate counsel failed to
recognize the parole issue. (Doc. 10-3 at 2, 5-20.) On May
13, 2013, the trial court dismissed the PCR Petition on the
merits, rejecting Petitioner’s argument that he was not
on parole at the time of the April 25, 1984 offenses for
which he was convicted. (Id. at
27-32.) The Arizona Court of Appeals granted
review but denied relief, rejecting Petitioner’s
ineffective assistance of counsel claim on the merits and
finding that Petitioner’s “claim of sentencing
error is precluded because he failed to raise it on
appeal.” (Id. at 72-75.) The Arizona Supreme
Court denied review on May 28, 2014. (Id. at 94.)
filed a § 2254 Petition for Writ of Habeas Corpus in
this Court on March 19, 2015 (Doc. 1) and an Amended §
2254 Petition on July 6, 2015 (Doc. 5.) In his Amended §
2254 Petition, Petitioner argues (1) he was illegally
sentenced because the trial court ignored the plain language
of the parole statutes, (2) his sentence violates the Due
Process Clause because no reasonable fact finder could have
found that he was on parole at the time of the offenses for
which he was convicted, (3) his trial and (4) appellate
counsel’s failure to recognize the parole issue
constituted ineffective assistance of counsel, (5) he has a
valid actual innocence claim pursuant to Ariz. R. Crim. P.
32.1(H) and an insufficiency of the evidence claim pursuant
to Ariz. R. Crim. P. 32.1(A), and (6) his sentence is grossly
disproportionate in violation of the Eighth Amendment. (Doc.
November 6, 2014, Respondents filed a Limited Answer arguing,
in part, that the § 2254 Petition is time-barred. (Doc.
10.) Judge Bowman agreed and recommended that this Court deny
the Amended § 2254 Petition as time-barred. (Doc. 19.)
district judge must “make a de novo determination of
those portions” of a magistrate judge’s
“report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The advisory committee’s notes to
Rule 72(b) of the Federal Rules of Civil Procedure state
that, “[w]hen no timely objection is filed, the court
need only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation” of a magistrate judge. Fed.R.Civ.P.
72(b) advisory committee’s note to 1983 addition.
See also Johnson v. Zema Sys. Corp., 170 F.3d 734,
739 (7th Cir. 1999) (“If no objection or only partial
objection is made, the district court judge reviews those
unobjected portions for clear error.”); Prior v.
Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D.
Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to
portions of Report and Recommendation).
Objection, Petitioner avers that his PCR Petition was timely
under Rule 32.4(A) of the Arizona Rules of Criminal
Procedure. (Doc. 20 at 3.) Petitioner argues that Respondent
should be precluded from arguing that his § 2254
Petition is time-barred, because the State conceded that the
PCR Petition was timely. Petitioner also argues that he is
entitled to equitable tolling and that failure to entertain
his claims on the merits would result in a miscarriage of
justice. In addition, Petitioner argues the merits of the
claims asserted in his Amended § 2254 Petition and
asserts that his sentence violates the Ex Post Facto Clause.
the arguments made in Petitioner’s Objection undermine
Judge Bowman’s conclusion that Petitioner’s
§ 2254 Petition is time-barred. The Antiterrorism and
Effective Death Penalty Act (“AEDPA”) established
a one-year statute of limitations for federal habeas
petitions filed by state prisoners. 28 U.S.C. §
2244(d)(1). As Judge Bowman concluded, the limitation period
for Petitioner’s claims was triggered on the date that
his judgment became final. See 28 U.S.C. §
2244(d)(1). However, because the judgment became final
before AEDPA took effect, the limitation period started
running the day after AEDPA’s effective date and
expired on April 24, 1997. See Bryant v. Ariz. Attorney
Gen., 499 F.3d 1056, 1058 (9th Cir. 2007).
limitation period is tolled during the time in which “a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” See Id. § 2244(d)(2).
In this case, however, the limitation period had expired long
before Petitioner filed his Notice of Petition for
Post-Conviction Relief in the Pima County Superior Court on
January 2, 2013. Regardless of whether the PCR Petition
itself was timely under state law, the filing of the PCR
Petition did not toll the limitation period under §
2244(d)(1), as that limitation period had already long-since
expired. See Ferguson v. Palmateer, 321 F.3d 820,
823 (9th Cir. 2003) (“section 2244(d) does not permit
the reinitiation of the limitations period that has ended
before the state petition was filed”).
is not entitled to equitable tolling of AEDPA’s statute
of limitations, because he has not shown that he pursued his
rights diligently or that an extraordinary circumstance
prevented timely filing. See Holland v. Florida, 560
U.S. 631, 645, 649 (2010). Petitioner’s untimely §
2254 Petition is not rescued by a gateway claim of actual
innocence, because Petitioner has not shown, in light of new,
reliable evidence, that “no juror, acting reasonably,
would have voted to find him ...