United States District Court, D. Arizona
G. Campbell United States District Judge.
Frederick Angus Miller, Jr. filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. 8. On
October 6, 2016, Magistrate Judge Bade issued a Report and
Recommendation (“R&R”) that the Petition be
denied as untimely. Doc. 17 at 10. Petitioner objected to the
R&R. Doc. 20. The Court will deny the objections and
accept Judge Bade's recommendations in full.
January 26, 2010, Petitioner was charged in the Maricopa
County Superior Court with kidnapping, a class two felony
(Count One); aggravated assault, a class six felony (Count
Two); seven counts of sexual assault, class two felonies
(Counts Three through Nine); and robbery, a class four felony
(Count Ten). Doc. 13, Ex. B. After a jury trial, Petitioner
was found guilty on all counts. Id. On April 13,
2011, the trial court sentenced Petitioner to a total of
87.25 years' imprisonment. Id.
filed a timely appeal to the Arizona Court of Appeals. Doc.
13-1 at 1-5 (Ex. A). On February 14, 2012, the appellate
court affirmed Petitioner's conviction and sentence.
Id. Petitioner filed a motion for reconsideration,
which the appellate court denied on March 7, 2012.
Id. at 10. Petitioner did not seek review in the
Arizona Supreme Court. Id. On April 12, 2012,
Petitioner filed a notice of post-conviction relief in the
trial court pursuant to Rule 32 of the Arizona Rules of
Criminal Procedure. Id. at 21-23 (Ex. D). The trial
court appointed counsel from the public defender's
office, who subsequently notified the court that, after a
review of the record, she could not find any colorable claims
to raise in a petition. Id. at 7-8 (Ex. B), 25-26
(Ex. E). Petitioner subsequently filed a pro se petition
asserting claims of ineffective assistance of trial and
appellate counsel. Id. at 28-66 (Ex. F). On April
30, 2013, the trial court denied relief. Id. at 7-8.
Petitioner did not seek appellate review of the trial
court's ruling. On January 23, 2015, Petitioner filed a
second notice of post-conviction relief. Id. at
68-96 (Ex. G). On March 4, 2015, the trial court dismissed
the notice as untimely. Id. at 98-99 (Ex. H).
Petitioner filed a petition for review in the Arizona Court
of Appeals, which the court dismissed as untimely on May 18,
2015. Id. at 101 (Ex. I).
9, 2016, Petitioner filed a Petition for Writ of Habeas
Corpus in this Court. Doc. 1. Petitioner filed an Amended
Petition on June 27, 2016. Doc. 8. The Court referred the
petition to Judge Bade. Doc. 9. On October 6, 2016, Judge
Bade issued an R&R recommending that the petition be
denied as untimely, and thus procedurally barred. Doc. 17.
may file specific, written objections to an R&R within 14
days of being served with a copy of it. Rules Governing
Section 2254 Cases 8(b) (“Section 2254 Rules”);
see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §
636(b)(1)(C). The Court must undertake a de novo
review of those portions of the R&R to which specific
objections are made. Id.; Thomas v. Arn,
474 U.S. 140, 149 (1985); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
Section 2254 Rules 8(b); see also Fed. R. Civ. P.
72(b)(3); 28 U.S.C. § 636(b)(1)(C).
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) provides a 1-year statute of limitation
for state prisoners to file a petition for writ of habeas
corpus in federal court. 28 U.S.C. § 2244(d)(1). The
limitations period generally commences on “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A).
Petitioner's direct appeal was decided on February 14,
2012. Petitioner's motion for reconsideration was denied
on March 7, 2012. Petitioner's window for requesting
review from the Arizona Supreme Court closed 20 days later,
and the statute of limitations started to run on March 28,
2012. See Ariz. R. Crim. P. 31.19(a) (an Arizona
litigant must file a petition for review by the Arizona
Supreme Court within 15 days of the appellate court's
final disposition of a motion for reconsideration); Ariz. R.
Crim. P. 1.3 (allowing an additional 5 days). The statute of
limitations started running on March 28, 2012. Doc. 17 at
1-year statute of 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.” 28 U.S.C.
§ 2244(d)(2). On April 12, 2012, the Petitioner filed a
notice of post-conviction relief, tolling the statute of
limitations after 15 days. On April 30, 2013, the trial court
dismissed the post-conviction proceeding and Petitioner did
not appeal. Petitioner's window to seek review of the
decision expired 35 days later, on June 4, 2013. See
Ariz. R. Crim. P. 32.9 (providing 30 days to petition for
review of a trial court's decision on a petition
post-conviction relief); Ariz. R. Crim. P. 1.9 (allowing an
additional 5 days). The limitations period started running
again on June 5, 2013. Accounting for the 15 days already
run, the statute of limitations expired 350 days later on May
21, 2014. Petitioner filed his original petition for
writ of habeas corpus on May 9, 2016, nearly 2 years after
expiration of the limitations period. Accordingly, the
petition is untimely. 28 U.S.C. § 2244(d)(1).
asserts that his petition should be considered despite its
untimeliness under the “actual innocence
exception” to the AEDPA statute of limitations
recognized by the Supreme Court in McQuiggin v.
Perkins, 133 S.Ct. 1924 (2013). Doc. 20 at 1. In
McQuiggin, the Supreme Court adopted the actual
innocence gateway previously recognized in Schlup v.
Delo, 513 U.S. 298, 314-15 (1995), for excusing the bar
to federal habeas corpus review of procedurally defaulted
claims. McQuiggin, 133 S.Ct. at 1928. To pass
through the Schlup gateway, a “petitioner must
show that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence.”
Schlup, 513 U.S. at 316. In the R&R, Judge Bade
concluded that, while Petitioner argues he is innocent, he
has presented no evidence that would meet the standard set
forth in Schlup. Doc. 17 at 9.
objection, the only evidence presented by Petitioner is a
sexual assault examination report completed by a forensic
nurse examiner named Tiffany Kennedy (Doc. 20 at 3-12), and
the trial testimony of Tiffany Kirby, who stated that she was
the forensic nurse examiner who completed the report
(Id. at 14-34). Petitioner argues Tiffany Kirby is
not the one who completed the report and that she perjured
herself by testifying that she was. Id. at 2, 36.
makes no argument, however, as to why this “new”
evidence, when considered alongside the evidence presented at
trial, would establish his innocence. He has not shown that
it is “more likely than not that no reasonable juror
would have convicted him in light of the new evidence.”
See McQuiggin, 134 S.Ct. at 1936 (petitioner must
present “‘evidence of innocence so strong ...