United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
before this Court is Petitioner's Petition for Writ of
Habeas Corpus (“Petition”). (Doc. 1). Respondent
has filed a Response to which the Petitioner filed a Reply.
(Docs. 14; 16). The Magistrate Judge to whom this case was
assigned issued a Report and Recommendation.
(“R&R”) (Doc. 17). In the R&R, the
Magistrate Judge recommended that that the Petition be denied
and dismissed because it is barred by the statute of
limitations. The R&R further recommended that a
certificate of appealability be denied. In response,
Petitioner filed an Objection to the R&R. (Doc. 18).
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). Further, this court
must review the “portions of the [Magistrate
Judge's] report to which objection is
made” by either party. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis in original); Schmidt v. Johnstone,
263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following
Reyna-Tapia, this Court concludes that de novo
review of factual and legal issues is required if objections
are made, ‘but not otherwise.'”).
Petition and Reply asserted the following single ground for
He claims that the prosecutor has refused to disclose a
videotape that would exonerate Petitioner and that
Petitioner's counsel has failed to request the videotape.
Petitioner asserts that this violates his Fourth, Fifth,
Sixth, and Fourteenth Amendment rights, as well as his rights
under Brady v. Maryland, 373 U.S. 83 (1963).
(Doc. 5 at 2). Petitioner's Objection to the R&R
essentially reargues claims already made in his Petition and
Reply. (Docs. 1; 16; 18). The only new, cognizable claim the
Court was able to identify in the Objection was
Petitioner's argument that the purported destruction of
the videotape on October 15, 2015 constituted newly
discovered evidence and would be a factual predicate that
would reset the limitations period to start running from that
date. (Doc. 18 at 3).
R&R based its decision solely on the statute of
limitations and did not address Respondents other defenses.
(Doc. 17 at 13). Therefore, in accordance with
Reyna-Tapia, the Court will limit its de novo review
to the sole objected to issue of whether or not the
videotape's purported destruction will impact the
commencement of the limitations period.
Statute of Limitations
for writs of habeas corpus are governed by the Anti-Terrorism
and Effective Death Penalty Act (“AEDPA”) which
provides a one-year statute of limitations for petitioners to
state their claims. 28 U.S.C. § 2244(d) (2006). Normally
the limitations period begins “when the judgment became
final by the conclusion of direct review of the expiration of
the time for seeking such review, ” but it can be reset
to “the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C. §
2244(d)(1)(A), (D). The period of direct review before the
judgment becomes final includes a “90-day period within
which a petitioner can file for a writ of certiorari from the
United States Supreme Court, even if the petitioner does not
actually file such a petition.” Spitsyn v.
Moore, 345 F.3d 796, 798 (9th Cir. 2003) (citing
Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
Petitioner's judgment became final on July 28, 2013, 90
days after the Arizona Supreme Court denied review of
Petitioner's direct appeal on April 29, 2013. (Docs. 1 at
3; 17 at 3). AEDPA's one-year statute of limitations
began to run the next day giving Petitioner until July 29,
2014 to file his Petition, absent any factors which would
argues that a videotape he claims was suppressed by the
prosecution would exonerate him and that the destruction of
the videotape on October 15, 2015 qualifies as newly
discovered evidence that would be a factual predicate of this
claim and reset the start date of the one year limitations
period. (Doc. 18 at 3).
2244(d)(1)(D) provides a petitioner with a later accrual date
than section 2244(d)(1)(A) only if vital facts could not have
been known by the date the appellate process ended. The due
diligence clock starts ticking when a person knows or through
diligence could discover the vital facts, regardless of when
their legal significance is ...