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Malone v. Ryan

United States District Court, D. Arizona

August 11, 2016

Donald Roy Malone, Petitioner,
v.
Charles Ryan, et al., Respondents.

          ORDER

          HONORABLE LYNNETTE C. KIMMINS, United States Magistrate Judge.

         Petitioner Donald Roy Malone, presently incarcerated at the Arizona State Prison in Florence, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation.[1] Before this Court are the Petition (Doc. 1), Respondents’ Answer (Doc. 11), and Petitioner’s Reply (Doc. 12). The Court finds that the Petition should be dismissed as untimely.

         FACTUAL AND PROCEDURAL BACKGROUND

         In March 1998, a jury found Petitioner guilty of armed robbery, six counts of aggravated assault, and six counts of kidnapping. (Doc. 11, Ex. B.) On April 24, 1998, Petitioner was sentenced in the Superior Court of Pima County to 63 years imprisonment. (Doc. 11, Ex. C.)

         On December 14, 1998, Petitioner appealed his conviction to the Arizona Court of Appeals. (Doc. 11, Ex. E.) The Arizona Court of Appeals affirmed his convictions and sentences on June 29, 1999. (Doc. 11, Ex. A.) Petitioner then filed a petition for review with the Arizona Supreme Court, which was denied on July 25, 2000. (Doc. 11, Exs. G, H.)

         In the meantime, on January 26, 2000, Petitioner filed a Notice of Post-Conviction Relief (PCR). (Doc. 11, Ex. J.) The PCR court stayed Petitioner’s PCR proceeding during the time that his petition for review was pending with the Arizona Supreme Court. (Doc. 11, Ex. K.) After the conclusion of Petitioner’s appeal, the PCR court lifted the stay and ordered that Petitioner file his petition by January 27, 2001. (Id.) Because Petitioner did not file a timely petition by that date, the PCR court dismissed his PCR Petition. (Doc. 11, Ex. L.) Afterwards, Petitioner filed a motion for reconsideration and the court reinstated his petition. (Doc. 11, Exs. M, N.) On October 30, 2001, Petitioner filed a PCR Petition. (Doc. 11, Ex. O.) On January 31, 2002, the trial court denied him relief on one claim and granted him partial relief on the other. (Id.)

         On September 8, 2004, Petitioner filed a second Petition for PCR. (Doc. 11, Ex. S.) The PCR court denied relief. (Doc. 11, Ex. V.) Upon Petition for Review, the Arizona Court of Appeals denied relief, and the mandate issued on October 21, 2005. (Doc. 11, Exs. W, X, Y.)

         On July 12, 2012, Petitioner filed a third Notice and Petition for PCR, and the PCR court denied Petitioner relief. (Doc. 11, Ex. DD.) Petitioner filed a petition for review from the PCR court’s denial; however, the court of appeals found no error and denied relief. (Doc. 11, Exs. II, JJ.) Petitioner filed a petition for review with the Arizona Supreme Court on May 1, 2013, which was denied. (Doc. 11, Exs. KK, LL.) The mandate for that decision issued on November 18, 2013. (Doc. 11, Ex. MM.)

         Petitioner filed the Petition for Writ of Habeas Corpus in this Court on June 30, 2014. (Doc. 1.)

         DISCUSSION

         Respondents argue that Petitioner’s Habeas Petition is time-barred because it violates the statute of limitations. Petitioner argues that he is entitled to equitable tolling because he encountered difficulties in trying to obtain his court transcripts and records.

         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. § 2244(d)(1). The limitations period begins to run from the latest of:

(A) the date on which judgment became final by the conclusion of direct review or the expiration of the time for ...

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