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Valenzuela v. Ryan

United States District Court, D. Arizona

August 31, 2016

Victor Valenzuela, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable Steven P. Logan United States District Judge.

         Petitioner 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 petition.

         I. Background

         Following 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. C.)[1] 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.)

         On 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.)

         II. Standard of Review

         The 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).

         III. Discussion

         Having reviewed the objected to recommendations de novo, the Court finds that the Magistrate Judge correctly concluded that Petitioner's claims are time-barred.

         The 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”).[2] 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).

         A. Commencement of Limitations Period

         Here, 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 following day.

         B. Statutory Tolling of Limitations Period

         Petitioner 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 ...


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