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McBride v. Ryan

United States District Court, D. Arizona

January 26, 2017

Dewey Lee McBride, Petitioner,
v.
Charles L Ryan, Respondent.

          ORDER

          Cindy K. Jorgenson United States District Judge

         On 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 response.

         This 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.

         No 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.

         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).

         After 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 denied. Id.

         On 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).

         On 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.

         McBride 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).

         At 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).

         McBride 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).

         McBride 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).

         Finally, 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).

         The pending petition for a writ of habeas corpus in this Court was filed July 21, 2016. (Doc. 1).

         Statutory Limitations for Filing a Writ of Habeas Corpus

         Under 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).

         McBride's 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.

         1. Tolling of Time Between Petitions

         The 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 ...


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