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Flores v. Ryan

United States District Court, D. Arizona

April 20, 2018

James Daniel Flores, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         I. Background[1]

         Following a jury trial, Flores was convicted of possession of a dangerous drug for sale and possession of drug paraphernalia. Ex. A.[2] 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.

         On 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.

         On 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.

         II. Timeliness

         A. Flores's Petition is Untimely.

         The 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 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 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 ...

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