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”). The Magistrate Judge
issued a Report and Recommendation (“R&R”)
recommending that the Petition be denied and dismissed
because it is barred by the Anti-Terrorism and Effective
Death Penalty Act's (“AEDPA”) statute of
limitations, (Doc. 28 at 16), and, alternatively, is either
procedurally defaulted or procedurally barred, (Id.
at 29). The R&R further recommended that a Certificate of
Appealability be denied. (Id. at 31). Petitioner
filed objections to these recommendations. (Doc. 31).
REVIEW OF AN R&R
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). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (emphasis in original). District courts are
not required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985); see
also 28 U.S.C. § 636(b)(1) (“the court shall
make a de novo determination of those portions of the [report
and recommendation] to which objection is made”). In
this case, Petitioner filed Objections to the Report and
Recommendation, (Doc. 31), and the Court will review those
objections de novo.
FACTUAL AND PROCEDURAL BACKGROUND
R&R summarized the factual and procedural history of this
case and neither party objected to this history. (Doc. 28 at
1-6). Therefore, the Court adopts that portion of the
STATUTE OF LIMITATIONS
R&R recommends that the Petition be denied as barred by
the AEDPA's statute of limitations. (Id. at
6-16). As explained by the Magistrate Judge, the AEDPA, 28
U.S.C. § 2244(d), provides a one year statute of
limitations for state prisoners to file a petition for writ
of habeas corpus in federal court. (Id. at 6). That
period generally commences on “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.”
(Id. at 7 (quoting 28 U.S.C. § 2244(d)(1)(A))).
Examining Petitioner's procedural history in state court,
the Magistrate Judge concluded that Petitioner's
conviction became final on July 24, 2015, when
Petitioner's time to file a Petition for Post-Conviction
Review expired. (Id. at 8).
Magistrate Judge explained that Section 2244(d)(1)(D) does
provide an alternative commencement date of “the date
on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.” (Id. at 9 (quoting 28 U.S.C.
§ 2244(d)(1)(D))). The Magistrate Judge noted that it is
only the delayed discovery of the facts themselves, not their
legal significance, that can trigger Section 2244(d)(1)(D).
(Id. (citing Hasan v. Galaza, 254 F.3d
1150, 1154 n. 3 (9th Cir. 2001))). Examining Petitioner's
factual and procedural background, the Magistrate Judge
concluded that Petitioner has offered nothing to suggest that
he has only recently discovered the relevant facts of his
claims, only an understanding of their legal significance.
(Id.). Therefore, the Magistrate Judge concluded
that Petitioner's claims are not sufficient to trigger a
later commencement date under Section 2244(d)(1)(D).
Magistrate Judge determined that July 24, 2015 is when the
one-year statute of limitations began to run, thus expiring
on July 24, 2016, absent any statutory or equitable tolling.
(Id. at 9-10).
statutory tolling, the Magistrate Judge explained that
“[t]he AEDPA provides for tolling of the limitations
period when a ‘properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending.'”
(Id. at 10 (quoting 28 U.S.C. § 2244(d)(2))).
An untimely application is never “properly filed”
within the meaning of Section 2244(d)(2). (Id.
(citing Pace v. DiGuglielmo, 544 U.S. 408 (2005))).
Petitioner's second PCR notice was not filed until
November 21, 2016, nearly four months after the ADEPA's
statute of limitations had run. (Id. at 12).
Therefore, the Magistrate Judge concluded that
“Petitioner is not entitled to any statutory
to equitable tolling, the Magistrate Judge explained that
“[e]quitable tolling of the one-year limitations period
in 28 U.S.C. § 2244 is available in our circuit, but
only when ‘extraordinary circumstances beyond a
prisoner's control make it impossible to file a petition
on time' and ‘the extraordinary circumstances were
the cause of his untimeliness.'” (Id.
(quoting Laws v. Lamarque, 351 F.3d 919, 922 (9th
Cir. 2003))). To receive equitable tolling, a petitioner
“must establish two elements: (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way.”
(Id. at 12-13 (citing Ramirez v. Yates, 571
F.3d 993, 997 (9th Cir. 2009))). The Magistrate Judge stated
that Petitioner's claim that he lacked access to legal
resources may be an extraordinary circumstance warranting
equitable tolling. (Id. at 14 (citing
Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.
2000))). However, the Magistrate Judge went on to explain
that in cases where courts have found that an extraordinary
circumstance might exist, the petitioner always pointed to
specific materials to which he did not have access.
(Id. (citing Roy v. Lampert, 465 F.3d 964,
974 (9th Cir. 2006))). Here, Petitioner points to no specific
materials to which he lacked access, and provides no