United States District Court, D. Arizona
Honorable Jennifer G. Zipps United States District Judge
before the Court is a Report and Recommendation issued by
United States Magistrate Judge Eric J. Markovich that
recommends dismissing Petitioner Julian Wyatt's Petition
for Writ of Habeas Corpus with prejudice. (Doc. 24.) No
objection to the Report and Recommendation was filed by
Petitioner within the time limits set by the Magistrate
Judge. “When no timely objection is filed,
the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72, Adv. Comm. Notes to
Court has reviewed the record and concludes that Magistrate
Judge Markovich's recommendations are not clearly
erroneous. See 28 U.S.C. § 636(b)(1)(A); As an
initial matter, the Court notes that many of the documents
relied upon by Petitioner in his objection are not in the
record in these proceedings. However, taking all of
Petitioner's allegations as true, the Court finds that
Petitioner has nevertheless failed to demonstrate that it was
“impossible to file a [federal habeas] petition on
time.” Miles v. Prunty, 187 F.3d 1104, 1107
(9th Cir. 1999).
to Petitioner, after the trial court denied Petitioner's
first PCR petition, he acquired an investigator and obtained
new information that would have affected the ineffective
assistance of counsel claim raised in the first PCR petition.
In spite of the new information, the trial court denied
Petitioner's request to reopen or “stay” the
first PCR proceedings, advising Petitioner that the new
information might be the subject of a second PCR petition,
but did not warrant reopening the first petition. Thereafter,
Petitioner did in fact file a second PCR petition, asserting
ineffective assistance of counsel and abuse of discretion by
the trial court, and arguing that the successive petition was
proper based on the newly discovered evidence. (See
doc. 19, ex. X.) The trial court found that Petitioner's
second PCR was untimely and that the newly discovered
evidence failed to meet the waiver requirements of Ariz. R.
Crim. P. 32(b). (Id. at ex. Y.) On November 15,
2012, the Arizona Court of Appeals affirmed the trial
court's ruling on the second PCR petition. (Id.
at ex. AA.) Petitioner also filed a Special Action with the
Arizona Court of Appeals, alleging that the trial court
abused its discretion in denying his request to amend his
first PCR petition. (Id. at ex. NN.) On November 23,
2011, the Arizona Court of Appeals declined to accept
jurisdiction of the special action. (Id. at ex. PP.)
Finally, on June 6, 2012, the Arizona Supreme Court denied
review of Petitioner's appeal relating to his first PCR
petition, thereby ending the statutory tolling period under
AEDPA and beginning the one year period in which Petitioner
was required to file his federal habeas petition.
(Id. at ex. U.)
the state proceedings were concluded well before the statute
of limitations period was triggered for Petitioner's
filing of a federal claim. However, Petitioner did not file a
federal habeas action before the June 7, 2013 deadline.
Rather, Petitioner continued to file successive petitions in
the state court, and in December 2013, well after the June 7
deadline, filed a motion to “stay” his habeas
proceedings in federal court. (Id. at ex. SS.)
However, because no federal petition had been filed, this
Court dismissed the case for lack of jurisdiction.
(Id. at ex. TT.)
it is unclear why, after the conclusion of the state
proceedings, Petitioner failed to file a federal habeas
action before the June 7, 2013 deadline. By November 15,
2012, Petitioner was aware that the trial court and the Court
of Appeals both considered his second PCR petition to be
untimely. Petitioner did not file his federal claims until
March 24, 2014-almost a year after the deadline to do so had
passed. Petitioner has not demonstrated he pursued his
federal claims with diligence, or that the failure to file
his federal claims is causally connected to any extraordinary
circumstances that were beyond his control. See Bryant v.
Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir.
2007); Miles, 187 F.3d at 1107. Accordingly, this
Court concludes that Petitioner is not entitled to equitable
tolling. Fed.R.Civ.P. 72; Johnson v. Zema Systems
Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also
Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or.
1998). As thoroughly explained by Magistrate Judge Markovich,
the petition for habeas corpus is untimely under 28 U.S.C.
§ 2244(d)(1)(A), and is not subject to equitable
IT IS ORDERED as follows:
1. The Report and Recommendation (doc. 24) is accepted and
2. Petitioner Wyatt's Petition for Writ of Habeas Corpus
(doc. 1) is DISMISSED with prejudice;
3. A Certificate of Appealability is denied and shall not
4. The Clerk of the Court is directed to close the case.
 On January 11, 2017, Petitioner filed
an objection that was signed, dated, and mailed on January 4,
2017. (Doc. 25, p. 19.) In his objection, Petitioner states
that he received Judge Markovich's Report and
Recommendation on December 6, 2016. (Id. at 1.) The
objection is untimely. Petitioner did not file his objection
within fourteen days of being served with a copy of the
Report and Recommendation, as ordered by ...