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Redzinak v. Ryan

United States District Court, D. Arizona

July 27, 2016

Joshua Wayne Redzinak, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          Joshua 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 General.

          REPORT AND RECOMMENDATION

          LYNNETTE C. KIMMINS, Magistrate Judge.

         Petitioner Joshua Wayne Redzinak, presently serving probation in Tucson, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.[1] Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation.[2] 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         In the 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.)

         On 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.)

         On 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 ¶ 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 ¶ 5.)

         On 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 a reply.

DISCUSSION

         Respondents argue that Petitioner's Habeas Petition is time-barred because it violates the statute of limitations.

         Statute of Limitations and Statutory Tolling

         Under 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. § ...


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