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Salazar v. Ryan

United States District Court, D. Arizona

May 29, 2018

David Anthony Salazar, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          James A. Teilborg, Senior United States District Judge.

         Pending 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).

         I. REVIEW OF AN R&R

         This 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         The 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 R&R.

         III. STATUTE OF LIMITATIONS

         The 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).

         The 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). (Id.).

         The 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).

         A. Statutory Tolling

         Regarding 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 tolling.” (Id.).

         B. Equitable Tolling

         Turning 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 ...


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