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Jones v. Ryan

United States District Court, D. Arizona

February 13, 2017

Edward Lee Jones, Jr., Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE

         This 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).

         As this 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.).

         I. Petitioner's Objection

         Rule 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.

         II. Analysis

         A. Standard of Review

         The 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. 72(b)(3).

         B. Timeliness

         Although 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.

         The 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 part:

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;

         An “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 ...


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