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Harding v. Ryan

United States District Court, D. Arizona

September 19, 2016

Kye James Henry Harding, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Hon. Steven P. Logan, United States District Judge.

         Before the Court is Petitioner Kye James Henry Harding's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable Bridget S. Bade, United States Magistrate Judge, issued a Report and Recommendation (“R&R”) (Doc. 28), recommending that the petition be denied with prejudice. Petitioner has objected to the R&R (Docs. 30, 31). For the following reasons, the Court accepts and adopts the R&R, and denies the petition.

         I. Background[1]

         On November 18, 2010, Petitioner pleaded guilty to two counts of armed robbery in the Maricopa County Superior Court, Case No. CR-2009-176158-002. (Doc. 21-1, Exhs. E- F.) On February 4, 2011, he was sentenced to consecutive terms of 10.5 years of imprisonment on each count. (Doc. 21-1, Exh. H.) Petitioner filed a timely “of-right” notice for post-conviction relief on February 9, 2011 pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 21-1, Exh. J.) The proceeding was ultimately dismissed on May 9, 2012. (Doc. 21-1, Exh. Z.) Petitioner did not seek review of the dismissal by the Arizona Court of Appeals, but instead initiated a sequence of post-conviction proceedings. Each was dismissed as untimely under Arizona law. (Docs. 21-2 and 21-3.)

         On May 26, 2015, Petitioner filed his federal habeas petition (Doc. 1) raising four grounds for relief. Respondents filed an answer (Doc. 21), arguing that the petition should be dismissed as untimely, and alternatively, that Petitioner's claims are procedurally defaulted and barred from federal habeas corpus review.

         II. Standard of Review

         A district judge “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). When a party files a timely objection to an R&R, the district judge reviews de novo those portions of the R&R that have been “properly objected to.” Fed.R.Civ.P. 72(b). A proper objection requires specific written objections to the findings and recommendations in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial economy). Further, a petitioner is not entitled as of right to de novo review of evidence or arguments which are raised for the first time in an objection to the R&R, and the Court's decision to consider them 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 agrees and accepts the Magistrate Judge's finding that Petitioner's claims are time-barred.[2]

         A. Commencement of Limitations Period

         The R&R finds that Petitioner's conviction became final upon the expiration of the time for seeking review by the Arizona Court of Appeals of the denial of his Rule 32 of-right petition for post-conviction relief on June 13, 2012. See Ariz. R. Crim. P. 32.4(a), 32.9(c); Summers v. Schriro, 481 F.3d 710, 714-15 (9th Cir. 2007) (“Rule 32 of-right proceedings is a form of direct review” and thus “AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceedings and review of that proceeding, or until the expiration of the time for seeing such proceeding or review”); Gonzalez v. Thaler, 132 S.Ct. 641, 656 (2012). The one-year limitations period therefore commenced the next day, June 14, 2012, and absent any tolling, it expired on June 13, 2013.

         Petitioner objects on the basis that the limitations period has not yet begun.[3] (Doc. 30 at 2-3.) He contends that the state court erred in dismissing his of-right proceeding because it failed to consider his certified April 9, 2012 petition (Doc. 21-1, Exh. X), and therefore, his of-right proceeding should be treated as though it is still pending. As a result, the period of direct review has not yet concluded, and his habeas petition is timely.

         This objection is without merit. Whether the state court correctly dismissed the proceeding does not bear on whether and when it was, in fact, dismissed for purposes of the limitations period. Petitioner does not dispute that the state court expressly dismissed the of-right proceeding on May 9, 2012, or that he did not appeal that ruling. Even if Petitioner's allegation that the state court mistakenly failed to consider his April 2012 petition and erred when it dismissed his of-right proceeding is taken as true, this Court may not correct that error on habeas review. See Ortiz v. Stewart, 149 F.3d 923, 939, 941 (9th Cir. 1998) (“federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings.”).

         B. Statutory Tolling of Limitations Period[4]

         Petitioner next objects that the R&R erred in finding that he is not entitled to statutory tolling of the limitations. He contends that the period should have been tolled beginning the date on which he “properly filed” his of-right petition - April 9, 2012. (Doc. 30 at 4.) This objection is also without merit.

         As previously addressed, “Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A), ” Summers, 481 F.3d at 716-17, as opposed to post-conviction review under § 2244(d)(2). Nevertheless, were the Court to treat the petition as an application under § 2244(d)(2), Petitioner would not be saved by statutory tolling. Because Petitioner did not seek review by the appellate court, no application for post-conviction review was pending following the state court's denial on May 9, 2012, and the limitations period would have begun the following day. See Evans v. Chavis, 546 U.S. 189, 191 (2006) (an application for state post-conviction review is “pending” during ...


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