United States District Court, D. Arizona
J. HUMETEWA, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc.
1) filed on June 23, 2016 and the Report and Recommendation
(“R&R”) issued by United States Magistrate
Judge John Z. Boyle (Doc. 27) on December 16, 2016.
Petitioner filed an Objection to the R&R
("Objection") (Doc. 28) and a supporting Memorandum
of Law (Doc. 29) on January 5, 2017. Also pending are
Petitioner's Motion for Evidentiary Hearing and Request
for Appointment of Counsel (Doc. 12) and Motion Requesting
Respondents Furnish Transcripts and Exhibits (Doc. 24).
Court determined in the Screening Order (Doc. 7), Petitioner
raised six grounds for relief in the Petition. (Doc. 7 at 2).
After a thorough analysis, Judge Boyle determined that the
Petition was filed after the statute of limitations period
expired, that Petitioner is not entitled to equitable
tolling, and that Petitioner has not demonstrated actual
innocence. (Doc. 27). Accordingly, Judge Boyle recommends the
Petition be denied and dismissed with prejudice. (Doc. 27 at
11). Judge Boyle further recommends that Petitioner's
other two pending motions be denied. (Id.).
7.2(e)(3) of the Rules of Practice of the United States
District Court for the District of Arizona (“Local
Rules”) provides that “[u]nless otherwise
permitted by the Court, an objection to a Report and
Recommendation issued by a Magistrate Judge shall not exceed
ten (10) pages.” Petitioner's handwritten Objection
to the R&R (Doc. 28) is 32 pages long and the supporting
Memorandum of Law (Doc. 29) is an additional six pages with
92 pages of attachments. Petitioner did not seek permission
from the Court to exceed the page limit set forth in the
Local Rules. Based on Petitioner's failure to comply with
the page limitation in LRCiv 7.2(e)(3), the Court will not
consider Petitioner's Objection or Memorandum of Law.
Moreover, even if the Court were to consider his Objection,
Petitioner fails therein to clearly identify his specific
objections to the R&R.
Standard of Review
district judge "shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made." 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 (same). The judge
"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.
the Court here has not considered Petitioner's Objection,
in an abundance of caution, it has performed its own limited
review of the R&R. In doing so, the Court agrees with the
Magistrate Judge and finds that the Petition was filed after
the statute of limitations period expired.
Antiterrorism and Effective Death Penalty Act of 1996 imposes
a statute of limitations on federal petitions for writ of
habeas corpus filed by state prisoners. See 28
U.S.C. § 2244(d)(1). The statute provides in pertinent
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
“of-right” petition for post-conviction review
under Arizona Rule of Criminal Procedure 32, which is
available to criminal defendants who plead guilty, is a form
of “direct review” within the meaning of 28
U.S.C. § 2244(d)(1)(A). Summers v. Schriro, 481
F.3d 710, 711 (9th Cir. 2007). Therefore, in plea agreement
cases, the judgment of conviction becomes final upon
“the conclusion of the Rule 32 of-right proceeding ...