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. 16 at 8). The R&R further recommended
that a Certificate of Appealability be denied.
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) (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.
Factual and Procedural Background
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
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
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).
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).
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))).
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.).
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