United States District Court, D. Arizona
K. Jorgenson United States District Judge
December 2, 2016, Magistrate Judge Leslie A. Bowman issued a
Report and Recommendation (Doc. 19) in which she recommended
the Petition Under 28 U.S.C. §2254 for a Writ of Habeas
Corpus by a Person in State Custody (Doc. 1) filed by Dewey
McBride be denied. McBride objected to the Report and
Recommendation. (Doc. 20). Respondents have not filed a
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). Further, under
28 U.S.C. § 636(b)(1), if a party makes a timely
objection to a magistrate judge's recommendation, then
this Court is required to “make a de novo determination
of those portions of the [report and recommendation] to which
objection is made.” The statute does not “require
 some lesser review by [this Court] when no objections are
filed.” Thomas v. Arn, 474 U.S. 140, 149-50,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is
not required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Id. at 149.
objections having been made to the magistrate judge's
rendering of the procedural and factual history, the Court
adopts those recitations. The Court now evaluates
McBride's objections to statutory time computation, and
finds McBride's petition is time-barred. Procedural
History The Court will briefly reiterate facts mentioned
in the Report and Recommendation and supplement them with
additional facts in the record that specifically address the
objections by McBride.
was sentenced August 17, 2009, and filed his first petition
for post-conviction relief on February 22, 2011. (Doc. 19, p.
2). The first petition requested an evidentiary hearing and
resentencing on the issues of ineffective assistance of
counsel and mental incompetency. (Doc. 12, p. 10; Doc. 19, p.
2). Specifically, McBride argued his mental health issues
were not properly addressed by the court, and counsel failed
to represent him in the presentence interview as well as
failed to present mitigating evidence at sentencing.
Id. The trial court denied the petition on November
30, 2011. (Doc. 13, pp. 36-38).
the denial, McBride filed a petition for review in the
Arizona Court of Appeals on January 4, 2012. (Doc. 19, p. 2).
The appeals court granted a limited remand to determine which
exhibits the judge considered for sentencing. Id.
The inquiry revealed a disparaging letter the trial judge had
reviewed. Id. The letter was sealed and had not been
disclosed to the parties. Id. Without directly
addressing the letter, the Arizona Court of Appeals granted
review but denied relief on May 25, 2012. (Doc. 14, p. 29).
In its memorandum decision, the appeals court explained
“McBride has failed to demonstrate the trial court
abused its discretion, either in finding insufficient
evidence that he was incompetent, or in concluding that
counsel was not ineffective by failing to challenge
McBride's incompetency at the change-of-plea and
sentencing hearings.” (Doc. 19, p. 2). McBride moved
for a rehearing based on the letter but it was summarily
October 13, 2012, McBride filed a petition for review in the
Arizona Supreme Court. (Doc. 19, p. 2). This petition again
argued incompetency and ineffective assistance, but also
included a request to remand for resentencing before a
different judge due to the sealed letter. (Doc. 14, p. 52;
Doc. 19, p. 2). The Arizona Supreme Court denied the petition
February 15, 2013. (Doc. 19, p. 2).
April 12, 2013, McBride filed a second Notice of
Post-Conviction Relief in the trial court. (Doc. 19, p. 3).
The trial court dismissed the notice because the Arizona
Court of Appeals had not yet issued its mandate, and the
court did not have jurisdiction. Id.
then filed another Notice of Post-Conviction Relief
(“Notice”) in the trial court on June 10, 2013,
as well as a sealed motion for change of judge for cause.
Id. When this petition was filed on August 12, 2013,
McBride argued that the merits of the issues raised in the
First Petition (McBride's incompetency and counsel's
ineffective assistance) needed to be re-reviewed because the
disclosed letter constituted newly discovered evidence which
could have had an impact not only on the sentencing, but in
the trial court's initial Rule 32 proceedings. (Doc. 15,
p. 47; Doc. 19, p. 3). The court reassigned the case to a
different judge, finding “[the judge] has not, in any
way, acted improperly, that she acted in good faith in these
matters, and that she reasonably believed that no party would
gain an advantage as a result of the ex-parte
communication and that the communication did not have an
effect at the time of sentencing. However, this Court does
not wish there to be any issue of any nature surrounding
these procedures.” (Doc. 15, p. 36).
first, the trial court held that the letter was not
“newly discovered evidence” and denied both
resentencing and re-evaluation of his first petition in front
of a new judge. (Doc. 19, p. 3). But, after McBride filed a
motion for rehearing, the trial court found the letter
was “newly discovered evidence” and
granted McBride a resentencing. (Doc. 17, pp. 6-7). It did
not, however, re-examine its order denying a re-evaluation of
the Rule 32 of-right petition in front of a different judge.
(Doc. 19, p. 3).
then filed a petition for review in the Arizona Court of
Appeals on March 31, 2014. (Doc. 17, p. 11). The appeals
court granted review but denied relief on September 22, 2014.
(Doc. 18, pp. 3-6).
filed for review in the Arizona Supreme Court but was this
was denied on April 21, 2015. (Doc. 18, p. 20). The Arizona
Court of Appeals' mandate issued on May 7, 2015. (Doc.
8-4, p. 2).
McBride filed a petition for writ of certiorari with the U.S.
Supreme Court on July 20, 2015 (Doc. 18, p. 36) which was
denied on December 7, 2015. (Doc. 18-6, p. 2).
pending petition for a writ of habeas corpus in this Court
was filed July 21, 2016. (Doc. 1).
Limitations for Filing a Writ of Habeas Corpus
the Antiterrorism and Effective Death Penalty Act of 1996, a
petitioner may file a writ of habeas corpus in federal court
requesting relief from a state judgment, however, the time
for the appeal is not unlimited. Petitioners have one year to
file from “the date on which the judgment became final
by the conclusion of direct review or the expiration of the
time for seeking such review.” 8 U.S.C. §
2244(d)(1). “The time during which a properly filed
application for State post-conviction . . . is pending shall
not be counted toward any period of limitation.” 8
U.S.C. § 2244(d)(2).
objections raise three issues: (1) whether the time between
the conclusion of review of the first Rule 32 of-right
proceedings and the Notice was tolled when calculating the
one-year statute of limitations, (2) whether the sealed
letter viewed by the judge but not counsel constituted
structural error, negating the first round of appeals, and
(3) whether the review was “pending” until the
U.S. Supreme Court issued its denial of certiorari. The Court
addresses these issues separately.
Tolling of Time Between Petitions
magistrate judge found the end of direct review occurred on
May 16, 2013; ninety (90) days after the Arizona Supreme
Court denied McBride's first petition. The Report and
Recommendation subtracts the twenty-four (24) day period
between that date and the date of the properly filed Notice
of Post-Conviction Relief from the one year filing deadline.
See Hemmerle v. Schriro,495 F.3d 1069, 1074 (9th