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Nguyen v. Ryan

United States District Court, D. Arizona

June 11, 2018

Tuan Le Nguyen, Petitioner,
v.
Charles 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. 16 at 8). The R&R further recommended that a Certificate of Appealability be denied. (Id.).

         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) (emphasis added); 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 in his Response to Report and Recommendation (“Response”) (Doc. 17), and the Court will review those objections de novo.

         II. Factual and Procedural Background

         The R&R summarized the factual and procedural history and neither party objected to this history. (Doc. 16 at 1-3). Therefore, the Court adopts that portion of the R&R in this case.

         III. R&R

         On February 26, 2018, the Magistrate Judge issued an R&R recommending that the Petition be denied as untimely under the AEDPA's statute of limitations. (Id. at 1-9). As explained by the Magistrate Judge, the AEDPA, 28 U.S.C. § 2244(d)(1), provides a one-year statute of limitations for a state prisoner to file a petition for writ of habeas corpus in federal court, which 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.” (Doc. 16 at 3-4). Here, Petitioner's convictions became final on May 1, 2006-the day Petitioner's time for filing a petition for review of his Rule 32 “of right” appeal in the Arizona Supreme Court expired. (Id. at 4-5). The one year statute of limitations period therefore commenced the next day, May 2, 2006, and expired one year later on May 2, 2007 absent any statutory or equitable tolling. (Id. at 5).

         In regard to statutory tolling, the Magistrate Judge explained that “[p]ursuant to the AEDPA, the one-year limitations period is tolled during the time that a ‘properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.'” (Id. (quoting 28 U.S.C. § 2244(d)(2)). The one-year limitations period started running on May 2, 2006, and ran for 164 days until Petitioner filed a notice of post-conviction relief on October 13, 2006, tolling the limitations period. (Id. (citing (Doc. 8, Ex. L))). On October 23, 2006, the state court dismissed that proceeding and Petitioner did not appeal, causing the limitations period to begin running again on October 24, 2006. (Id. (citing (Doc. 8, Ex. M))). The statute of limitations expired 201 days later on May 13, 2007. (Id.). Petitioner's subsequent commencement of another post-conviction proceeding in June 2012 did not toll the already-expired limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed.”). The Magistrate Judge concluded that, accordingly, the petition is untimely unless equitable tolling applies. (Doc. 16 at 6).

         Turning to equitable tolling, the Magistrate Judge explained that “a petitioner is entitled to equitable tolling only if he shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” (Id. (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005))). The Magistrate Judge explained that a petitioner “must act with ‘reasonable diligence' throughout the period he seeks to toll, ” (Id. (citing Holland v. Florida, 560 U.S. 631, 653 (2010)), and that the petitioner “bears the burden of establishing that equitable tolling is warranted.” (Id. (citing Bryant v. Arizona Att'y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007))). The Magistrate Judge determined that Petitioner's claims of lacking legal knowledge and inability to understand English were insufficient to meet his burden of showing extraordinary circumstances sufficient to equitably toll the limitations period. (Id. at 6-8).

         Finally, the Magistrate Judge rejected Petitioner's assertion that failure to consider his claims would result in a fundamental miscarriage of justice. (Id. at 8). The Magistrate Judge explained that “this conclusory allegation is insufficient to establish that equitable tolling is warranted.” (Id. (citing McQuiggin v. Perkins, 569 U.S. 383 (2013))).

         Based on Petitioner's failure to file his habeas action within the statute of limitations and the finding that Petitioner failed to state a sufficient basis for statutory or equitable tolling of the statute of limitations, the Magistrate Judge determined that she need not consider the merits of Petitioner's claims. (Id.).

         IV. Petitioner's Objections

         Petitioner does not object to the Magistrate Judge's application of the AEDPA's statute of limitations to his procedural history, the Magistrate Judge's conclusion that the statute of limitations expired because Petitioner failed to establish that statutory tolling should apply, or the Magistrate ...


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