United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE
February 1, 2016, Magistrate Judge D. Thomas Ferraro issued a
Report and Recommendation (R & R) in which he recommended
that the Pro Se Petition for Writ of Habeas Corpus
Under 28 U.S.C. § 2254 be dismissed as untimely and that
the Court deny Petitioner’s motion to hold the matter
in abeyance so he can exhaust ineffective assistance of
counsel claims in state court. (Doc. 13.)
was given an extension of time to file objections and filed
his objections on March 14, 2016. (Doc. 17.) The State filed
its response to the objections on May 4, 2016. (Doc. 21.) The
Court has considered the Petition (Doc. 1),
Petitioner’s Motion to Hold Petition in Abeyance (Doc.
3), Respondents’ Answer and Opposition to the Request
for a Stay (Doc. 11), Petitioner’s Reply (Doc. 12), the
R & R (Doc. 13), Petitioner’s Objections (Doc. 17),
and the State’s Response (Doc. 21).
Court will adopt the R & R, deny the motion for a stay,
and dismiss the case.
Court reviews de novo the objected-to portions of the R &
R. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court
reviews for clear error the unobjected-to portions of the R
& R. Johnson v. Zema Systems Corp., 170 F.3d
734, 739 (7th Cir. 1999); see also, Conley v.
Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).
R & R -- Findings and Discussion
was convicted in the Superior Court of Pima County of one
count of Possession of Marijuana for Sale and one count of
Possession of Drug Paraphernalia. (Doc. 11, Ex. A at 2-3.) On
January 17, 2012, he was sentenced to concurrent prison
terms, the longest of which was 15.75 years. (Id.,
convictions and sentences were affirmed by the Arizona Court
of Appeals on January 17, 2013. (Id., Ex. F.) He
sought reconsideration, which was denied on February 14,
2013. (Id., Exs. G, H.) On February 18, 2014,
Petitioner filed a Post-Conviction Relief (PCR) Petition.
(Id., Ex. J.) The PCR court found the petition
untimely and summarily dismissed it on April 23, 2014.
(Id., Ex. M.) On review, the Court of Appeals upheld
that dismissal. State v. Moreno, No. 2-CA-CR
2014-0191-PR, 2014 WL 4639272 (Ct. App. Sept. 17, 2014). The
Arizona Supreme Court denied review on April 21, 2015. (Doc.
3 at 4.)
filed his Petition for Writ of Habeas Corpus in this Court on
May 7, 2015. (Doc. 1.) He simultaneously filed a Notice of
PCR, initiating his second PCR proceeding in state court.
(Id., Ex. N.)
claim that all of Petitioner’s claims are time-barred
because the Petition was filed after the statute of
limitations had run. The Magistrate Judge agreed and
recommended dismissal. (Doc. 13.)
the Antiterrorism and Effective Death Penalty Act (AEDPA),
federal petitions for writ of habeas corpus filed by state
prisoners are governed by a one-year statute of limitations
period. 28 U.S.C. § 2244(d)(1). The limitations period
begins to run from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) 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 applicant was