United States District Court, D. Arizona
J. Markovich United States Magistrate Judge
Frank Jemar Walton filed a pro se Petition for a Writ of
Habeas Corpus (“PWHC”) pursuant to 28 U.S.C.
§ 2254 on May 5, 2014. (Doc. 1). Petitioner raises two
grounds for relief: (1) ineffective assistance of counsel;
and (2) due process violations. Respondents filed an Answer
contending that the PWHC is untimely, and further that all of
Petitioner's claims are unexhausted and procedurally
defaulted and not cognizable on habeas review. Petitioner did
not file a reply. The Court concludes that Petitioner's
PWHC is untimely, and that Petitioner has not shown that he
is entitled to statutory or equitable tolling. Accordingly,
the petition will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
August 22, 2012, Petitioner pled guilty in Pima County
Superior Court to one count of aggravated assault with a
deadly weapon/dangerous instrument. (Doc. 14 Ex. A).
Petitioner was sentenced to five years imprisonment. (Doc. 14
Ex. C). In his sentencing memorandum, Petitioner described
the facts of his crime as follows:
This incident arose out of a drunken Frank Walton walking
down a residential street shooting a handgun up in the air.
There was a confrontation with the victim who perceived that
Frank was threatening him with the gun. Ultimately the victim
shot at and wounded Frank with a shotgun. Frank never
discharged his gun at either of the victims and no one but
Frank was injured in this incident.
(Doc. 14 Ex. B at 1).
did not file a Rule 32 petition for post-conviction
deposited his PWHC in the prison mailing system on May 5,
2014. (Doc. 1). In Ground One, Petitioner claims that his
counsel was ineffective for failing to investigate the police
interview that took place after Petitioner underwent surgery
and was on medication. Petitioner contends that counsel
should have filed motions to have the charges dismissed based
on Petitioner's condition during the interview and his
improper waiver of his Miranda rights. In Ground Two,
Petitioner alleges that his due process rights were violated
when the detective misapplied Miranda, that he was not fully
cognizant of his rights, and that his counsel did not file
contend that the PWHC is untimely and that Petitioner has not
shown that he is entitled to statutory or equitable tolling.
(Doc. 14). Respondents further contend that Grounds One and
Two of the Petition are unexhausted and procedurally
defaulted and that Petitioner has not shown cause and
prejudice or a fundamental miscarriage of justice to excuse
his default. Respondents further allege that Petitioner's
claims are not cognizable on federal habeas review.
Respondents thus conclude that the PWHC is not properly
before this Court for review and should be denied and
dismissed with prejudice.
STATUTE OF LIMITATIONS
threshold matter, the Court must consider whether
Petitioner's PWHC is barred by the statute of limitation.
See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir.
2002). The writ of habeas corpus affords relief to persons in
custody pursuant to the judgment of a state court in
violation of the Constitution, laws, or treaties of the
United States. 28 U.S.C. §§ 2241(c)(3), 2254(a).
Petitions for habeas corpus are governed by the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”). 28 U.S.C. § 2244. The AEDPA
mandates that a one-year statute of limitations applies to
applications for a writ of habeas corpus by a person in state
custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1)
provides that the limitations period shall run from the
(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;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was