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Smith v. Ryan

United States District Court, D. Arizona

August 11, 2016

Christopher Lee Smith, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          JAMES A. TEILBORG Senior United States District Judge.

         Pending before this Court is Petitioner’s Amended Petition for Writ of Habeas Corpus. (Doc. 8). The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (“R&R”) (Doc. 17) recommending that the amended Petition be denied and dismissed because it is barred by the statute of limitations. Petitioner filed objections to this recommendation. (Doc. 18).

         The R&R also made alternative recommendations on the merits of the claims in the amended Petition in the event the amended Petition is found to be timely. Petitioner and Respondents objected to those recommendations. (Docs. 18, 19).

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Further, this Court must review the portions of the R&R to which either party objected de novo. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’”).

         I. Statute of Limitations

         The amended Petition in this case is governed by the statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d), which provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall 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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

         In this case, Petitioner’s conviction became final on October 21, 2013, when the Superior Court denied Petitioner’s timely petition for post-conviction relief. Doc. 13 at 10. Petitioner never properly filed an appeal, or a proper request for extension of time to appeal, this decision; thus, October 21, 2013 is when his conviction became final.[1] Doc. 13 at 11 (quoting the Arizona Court of Appeals’ summary dismissal of the late filed petition for review of the trial court’s denial of the petition for post-conviction relief[2]). Thus, this habeas petition was due in Federal court by October 21, 2014, unless Petitioner is entitled to tolling. The habeas petition in this case was filed on July 30, 2015.

         A. ...


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