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Moreno v. Ryan

United States District Court, D. Arizona

June 16, 2016

Ramon Miguel Moreno, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE

         On 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.)

         Petitioner 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).

         The Court will adopt the R & R, deny the motion for a stay, and dismiss the case.

         I. Legal Standard

         The 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).

         II. R & R -- Findings and Discussion

         Petitioner 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., Ex. B.)

         The 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.)

         Petitioner 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.)

         Respondents 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.)

         Under 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 ...

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