United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge.
Victor Valenzuela, who is confined in the Arizona State
Prison Complex- Kingman, Arizona, has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc.
1). The Honorable David K. Duncan, United States Magistrate
Judge, issued a Report and Recommendation
(“R&R”) (Doc. 11), recommending that the
petition be denied as untimely. Petitioner has objected to
the R&R. (Docs. 12, 13.) For the following reasons, the
Court accepts and adopts the R&R, and denies the
a jury trial in the Pinal County Superior Court, Case No.
2008-01519, Petitioner was found guilty of possession of a
dangerous drug for sale, possession of drug paraphernalia,
and possession of marijuana. (Doc. 8-1, Exh.
On September 8, 2010, Petitioner was sentenced to concurrent
terms of incarceration, the longest of which was a 10-year
term of imprisonment. (Doc. 8-1, Exh. D.)
November 6, 2014, Petitioner filed the instant Petition for
Writ of Habeas Corpus raising four claims for relief. (Doc.
1.) Respondents filed a limited answer, in which they argue
that the petition should be dismissed because the petition is
untimely, and as procedurally defaulted and barred in the
alternative. (Doc. 8.)
Standard of Review
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by a magistrate judge in a
habeas case. See 28 U.S.C. § 636(b)(1). The
Court must undertake a de novo review of those
portions of the R&R to which specific objections are
made. See id.; Fed. R. Civ. P. 72(b)(3); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003). However, a party is not entitled as f evidence and
arguments raised for the first time in an objection to the
R&R, and whether the Court considers the new facts and
arguments presented is discretionary. United States v.
Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).
reviewed the objected to recommendations de novo,
the Court finds that the Magistrate Judge correctly concluded
that Petitioner's claims are time-barred.
writ of habeas corpus affords relief to persons in custody
pursuant to the judgment of a State court in violation of the
Constitution, laws, or treaties of the United States. 28
U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are
governed by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). 28 U.S.C. § 2244. The AEDPA
imposes a 1-year statute of limitations in which “a
person in custody pursuant to the judgment of a State
court” can file a federal petition for writ of habeas
corpus. 28 U.S.C. § 2244(d)(1).
Commencement of Limitations Period
the 1-year limitations period began to run when the time for
seeking direct review expired. See 28 U.S.C. §
2244(d)(1)(A) (the 1-year limitations period runs from the
date on which judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review). Following a timely direct appeal, the Arizona Court
of Appeals issued its decision affirming Petitioner's
convictions on March 23, 2011. (Doc. 8-2, Exh. H.) Petitioner
did not file a timely petition for review to the Arizona
Supreme Court. (Doc. 8-2, Exh. I.) Therefore, judgment became
final on April 23, 2011, when the time for filing a petition
for review by the Arizona Supreme Court expired. See
Ariz. R. Crim. P. 31.19(a) (“Within 30 days after the
Court of Appeals issues its decision, any party may file a
petition for review with the clerk of the Supreme
Court”); White v. Klitzkie, 281 F.3d 920, 924,
fnt. 4 (9th Cir. 2002) (“it is the decision of the
state appellate court, rather than the ministerial act of
entry of the mandate, that signals the conclusion of
review”). It follows that, absent any tolling, the
one-year limitations period would have commenced the
Statutory Tolling of Limitations Period
properly filed a notice of post-conviction relief on April
15, 2011. (Doc. 8-2, Exh. J.) Petitioner's first
post-conviction relief proceeding remained pending and
statutorily tolled the limitations period until August 14,
2013, when the Superior Court dismissed the petition. (Doc.
8-2, Exh. P.) See 28 U.S.C. § 2244(d)(2)
(one-year limitations period is tolled during the time that a
“properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending”). Because Petitioner did
not timely seek review of the petition (see
Doc. 8-3, Exh. R), no application for post-conviction relief
was pending following the Superior Court's
denial and the limitations period began to run again the
following day on August 15, 2013. See Evans v.
Chavis, 546 U.S. 189, 191 (2006) (an application for
state post-conviction review is “pending” during
the period between a lower court's adverse determination
and the filing of a timely appeal); Robinson v.
Lewis, 795 F.3d 926, 928-29 (9th Cir. 2015); Stewart
v. Cate,757 F.3d 929, 935 (9th Cir. 2014) (“The
time between ...