United States District Court, D. Arizona
matter is before the Court on pro se
Petitioner's Amended Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 11) and the Report
and Recommendation (“R&R”) issued by United
States Magistrate Judge Deborah M. Fine (Doc. 22). In his
Amended Petition for Writ of Habeas Corpus (the
“Amended Petition”), Petitioner raised three
claims for relief: ineffective assistance of counsel in
violation of the Sixth and Fourteenth Amendment;
prosecutorial misconduct in violation of his Fifth, Sixth and
Fourteenth Amendment rights; and sentencing errors in
violation of the Fifth, Sixth and Fourteenth Amendment. (Doc.
11 at 6-8). After a thorough analysis, Judge Fine recommended
that this Court deny the Amended Petition because it was
untimely filed and Petitioner is not entitled to tolling. On
May 2, 2016, Petitioner timely filed objections to the
R&R. (Doc. 23). Respondents filed no objections.
R & R and Objections
R&R, Magistrate Judge Fine set forth the procedural
background of this case. The Court need not repeat that
information here because Petitioner did not object to any of
the information in the background section. See Thomas v.
Arn, 474 U.S. 140, 149 (1989) (The relevant provision of
the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C),
“does not on its face require any review at all . . .
of any issue that is not the subject of an
objection.”). Thus, the Court fully adopts that section
of the R&R.
Standard of Review
Court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which” Petitioner is objecting. 28
U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P.
72(b)(3) (“The district judge must determine de novo
any part of the magistrate judge's disposition that has
been properly objected to.”); U.S. v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (emphasis added). Further, this Court "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)(1)(C); Fed.R.Civ.P. 72(b)(3).
initial observation, it is apparent that Petitioner
misunderstood that part of the R&R that describes the
procedural background leading up to the filing in this Court
of his original federal habeas petition and the Amended
Petition. Petitioner spends a considerable amount of time
refuting what he mistakenly believes is Judge Fine's
finding that his original habeas petition was not timely
filed pursuant to this Court's orders. (See Doc.
23 at 5-7:23-28) (“[w]hen a federal magistrate judge
granted multiple extensions for the prisoner to file his
federal habeas petition, such extensions effectively
instructed the prisoner that if he followed the court's
schedule, his federal filing would be deemed timely.”).
Magistrate Judge Fine did not make such a finding. Instead,
the R&R noted that Petitioner's Amended Petition was
“timely filed in relation to [this
Court's] January 14, 2015 Order.” (Doc. 22 at
1:27-28) (emphasis added). Judge Fine explained that on
January 14, 2015, this Court granted Petitioner an extension
of time to file an amended petition, which he did.
Petitioner's Amended Petition (Doc. 11) was therefore
filed on February 24, 2015 in accordance with the Court's
extension order and Judge Fine did not conclude otherwise.
Consequently, Petitioner's arguments related thereto are
misplaced and the Court need not consider them as they are
not proper objections under Fed.R.Civ.P.72(b)(3).
the R&R does explain, however, is that Petitioner's
original habeas petition was not timely filed in relation to
the one-year statute of limitations for state prisoners to
file a federal habeas petition once his state court review
process concluded. In other words, under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”),
Petitioner had one-year from April 6, 2012, the date his
state conviction became final, to file his habeas petition
and he failed to do so. (See Doc. 22 at 4:22-28)
(“Petitioner had 35 days from March 1, 2012 (or
April 5, 2012) to petition the Arizona Court of
Appeals for review of the trial court's order.
Ariz.R.Crim.P. 32.9(c), 1.3(a)) (emphasis added). Petitioner
did not file a petition to the Arizona Court of Appeals by
April 5, 2012. Thus, the AEDPA's one-year statute of
limitations began to run, giving Petitioner until April 5,
2013 to file his habeas petition. Petitioner again did not do
so. Rather, he waited for almost two years, until December 9,
2014, to file his original habeas petition. Moreover, as
thoroughly discussed in the R&R, Petitioner was not
entitled to equitable tolling of the one-year statute of
limitations period because Petitioner is unable to show
“(1) that he has been pursuing his rights diligently
and (2) that some extraordinary circumstances stood in his
way to prevent him from timely filing his habeas
petition.” (Doc. 22 at 5).
construing Petitioner's objections, he essentially
disagrees with the R&R finding that 1) his alleged
attorney abandonment does not amount to an extraordinary
circumstance which entitles him to equitable tolling and 2)
that his limited knowledge of the law and limited access to
the law library does not entitle him to equitable
tolling.(Doc. 23 at 8). Petitioner first claims
that his “counsel was supposed to stay on in an
advisory capacity, and never advised Petitioner, on anything,
[f]ailed to inform [him] about crucial facts related to his
case, and failed to communicate altogether with his
client.” (Id.) This is essentially the same
argument Petitioner made in his Amended Petition. (Doc. 11 at
5 and 7). Petitioner does not offer any evidence or argument
to refute the R&R finding that his defense counsel was to
remain on his case in an advisory capacity “until a
final determination is made by the trial court regarding any
post-conviction relief proceeding.” (Doc. 22 at
8:8-11). Petitioner does not point to anything in the state
court record to counter this R&R finding. Consequently,
Petitioner's objection to the R&R finding that his
claim of attorney abandonment entitles him to equitable
tolling lacks merit.
also argues that he should be entitled to equitable tolling
because he “was locked down in Arizona's Super Max
unit [where] he did not have access to case law[.]”
(Doc. 23 at 14:26-28). These assertions, which are similar to
those made in his Amended Petition, were thoroughly
considered in the R&R. (Doc. 22 at 6) (“Petitioner
was also in Arizona's Super Max Unit from 2010 to 2014
with limited access to law library.”). The Magistrate
Judge observed that the Amended Petition failed to set forth
the specific efforts that he made to overcome the obstacles
that he believed limited his access to the law library.
(Id. at 7:1-9). Petitioner argues that he has been
diligent in pursuing his rights by educating himself on the
law and by reading what other prisoners have provided to him
because “[t]he prison ‘law library' does not
provide any resources needed to argue a case in any
court.” (Doc. 23 at 18). Petitioner, however, does not
address the R&R's reliance on Ninth Circuit
precedence that has denied equitable tolling under
circumstances similar to his. See Ramirez v. Yates,
571 F.3d 993, 998 (9th Cir. 2009) (denying
equitable tolling where ordinary prison limitations on
petitioners' access to the law library existed). Thus,
Petitioner has not overcome his burden to show that some
extraordinary circumstance prevented him from diligently
pursuing his habeas petition. See Pace v.
DiGuglielma, 544 U.S. 408, 418 (2005). Consequently,
this Court finds no merit to Petitioner's objections to
the Magistrate Judge's determination that his federal
habeas petition was untimely pursuant to 28 U.S.C. §
2244(d)(1) and that he is not entitled to equitable tolling.
IT IS ORDERED that Magistrate Judge Fine's Report and
Recommendation (Doc. 22) is accepted and adopted as the Order
of this Court. Petitioner's Objections (Doc. 23) are
FURTHER ORDERED that Petitioner's Amended Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc.
11) is DENIED and DISMISSED WITH PREJUDICE.
FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases, a Certificate of Appealability
and leave to proceed in forma pauperis on appeal are
denied because dismissal of the Petition is justified by a
plain procedural bar and jurists of reason would not find the
procedural ruling debatable.
FINALLY ORDERED that the Clerk of the Court shall terminate