United States District Court, D. Arizona
Wayne Redzinak, Petitioner, Pro Se.
Charles Ryan, Respondent, represented by Diane Leigh Hunt,
Office of the Attorney General.
Attorney General of the State of Arizona, Respondent,
represented by Diane Leigh Hunt, Office of the Attorney
REPORT AND RECOMMENDATION
LYNNETTE C. KIMMINS, Magistrate Judge.
Joshua Wayne Redzinak, presently serving probation in Tucson,
Arizona, has filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. Â§ 2254. Pursuant to the Rules of
Practice of this Court, this matter was referred to
Magistrate Judge Kimmins for Report and
Recommendation. Before this Court are the Petition
(Doc. 1) and Respondents' Answer (Doc. 17). The
Magistrate Judge recommends the District Court, after its
independent review of the record, dismiss the Petition on the
ground that it is time-barred.
AND PROCEDURAL BACKGROUND
Superior Court of Pima County, Petitioner pled guilty to
attempted sexual assault and kidnapping. (Doc. 17, Ex. C.) On
July 3, 2012, Petitioner was sentenced to 3.5 years
imprisonment on one offense and a consecutive 7-year
probation period for the other offense. (Doc. 17, Ex. D.)
October 27, 2014, Petitioner filed a pro se request
for sentence modification. (Doc. 17, Ex. E.) The trial court
denied his request, holding that it lacked legal cause. (Doc.
17, Ex. F.) On January 14, 2015, Petitioner filed a Notice of
Post-Conviction Relief (PCR), asserting that the Notice was
not untimely because it claimed a constitutional violation
that was only recently brought to his attention. (Doc. 17,
Ex. G.) On January 20, 2015, Petitioner filed a PCR Petition.
(Doc.17, Ex. H.) The trial court dismissed the Notice and
Petition for PCR on February 5, 2015. (Doc. 17, Ex. I.)
February 19, 2015, Petitioner filed a petition for review in
the Arizona Court of Appeals. (Doc. 17, Ex. J.) The court of
appeals granted review but denied relief, holding that
Petitioner's Notice of PCR was untimely and that "a
defendant's later realization that he may have had a
viable post-conviction claim does not permit him to raise it
in an untimely proceeding." (Doc. 17, Ex. K at Â¶ 4-5.)
Furthermore, the court stated that "even if [Petitioner]
were correct that his sentence is illegal, that fact would
not create a jurisdictional defect that may be raised in an
untimely proceeding." ( Id. at Â¶ 5.)
February 10, 2015, Petitioner submitted the Petition for
Habeas Corpus in this Court asserting in one claim that his
sentence was imposed in violation of the double jeopardy
clause. (Doc. 1.) The State filed a limited Answer to the
Petition on July 13, 2015. (Doc. 17.) Petitioner did not file
argue that Petitioner's Habeas Petition is time-barred
because it violates the statute of limitations.
of Limitations and Statutory Tolling
the Antiterrorism and Effective Death Penalty Act (AEDPA) of
1996, 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. Â§ ...