United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE JUDGE
before the Court is James Daniel Flores's
(“Flores”) Petition for Writ of Habeas Corpus
(Doc. 1) filed pursuant to 28 U.S.C. § 2254. In their
Limited Answer to Petition for Writ of Habeas Corpus,
Respondents affirmatively argue that Flores's Petition is
untimely and that he is not entitled to statutory or
equitable tolling. Doc. 28. The Magistrate Judge agrees and
recommends that the Petition be found untimely and dismissed
with prejudice. Additionally, Respondents move to strike
(Doc. 30) Flores's Supplement Habeas Petition (Doc. 29).
Because Flores did not seek leave of court pursuant to Rule
15(d), Fed.R.Civ.P., the Magistrate Judge recommends that the
Motion to Strike be granted.
a jury trial, Flores was convicted of possession of a
dangerous drug for sale and possession of drug paraphernalia.
Ex. A. The trial court imposed concurrent prison
terms, the longest of which was ten years. Ex. B. On
September 27, 2013, the Court of Appeals affirmed
Flores's convictions and sentences. Ex. A.
December 23, 2013, Flores initiated a proceeding for
post-conviction relief. Ex. B. The trial court dismissed the
petition finding that Flores's claims of trial error were
precluded and that his claims of ineffective assistance of
counsel were not colorable. Id.
review to the Arizona Court of Appeals, Flores again argued
that he received ineffective assistance of counsel and that
the trial court abused its discretion in rejecting his
claims. Id. On March 3, 2016, the appellate court
denied relief finding that because his notice was untimely
and he raised no claim that could be considered in an
untimely proceeding, the court could not say that the trial
court abused its discretion in dismissing the proceeding.
Id. Flores did not file a motion for reconsideration
or a petition for review with the Arizona Supreme Court. Ex.
C. On March 13, 2017, Flores filed the instant Petition for
Writ of Habeas Corpus. Doc. 1.
Flores's Petition is Untimely.
Anti-terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides for a one year statute of
limitations to file a petition for writ of habeas corpus. 28
U.S.C. § 2244(d)(1). Petitions filed beyond the one-year
limitations period must be dismissed. Id. The
statute provides in pertinent part:
(1) 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
(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
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the