United States District Court, D. Arizona
Steven P. Logan, United States District Judge.
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
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
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.
Standard of Review
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).
reviewed the objected to recommendations de novo,
the Court agrees and accepts the Magistrate Judge's
finding that Petitioner's claims are
Commencement of Limitations Period
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.
objects on the basis that the limitations period has not yet
begun. (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.
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
Statutory Tolling of Limitations
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
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 ...