United States District Court, D. Arizona
REPORT AND RECOMMENDATION
S. Willett United States Magistrate Judge
HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
before the Court is Neftali Mendoza Soto's
(“Petitioner”) “Petition under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus” (the
“Petition”) (Doc. 1). Petitioner is serving two
concurrent ten-year prison terms after being convicted in the
Superior Court of Arizona on two counts of aggravated driving
under the influence. The undersigned has reviewed the
parties' briefing (Docs. 1, 7, 8). For the reasons
explained herein, the undersigned recommends that the Court
dismiss the Petition as untimely.
2010, a jury found Petitioner guilty of two counts of
aggravated driving under the influence. (Doc. 7-4 at 9). The
trial court sentenced Petitioner to two concurrent ten-year
prison terms that are to be served consecutively to the
sentences imposed in three probation revocation cases.
(Id.). On March 28, 2013, the Arizona Court of
Appeals affirmed Petitioner's convictions and sentences.
(Doc. 7-1 at 3-6). Petitioner did not seek further review by
the Arizona Supreme Court. (Id. at 8).
22, 2013, Petitioner filed a Notice of Post-Conviction relief
(“PCR”). (Id. at 21-24). The trial court
appointed Petitioner counsel, who could not find a colorable
claim for relief. (Id. at 26-27). Petitioner
submitted a pro se PCR Petition, which the trial court
dismissed on December 4, 2014. (Doc. 7-4 at 2-4). Petitioner
did not petition the Arizona Court of Appeals for review.
March 2016, Petitioner filed a second PCR petition, which the
trial court summarily dismissed as untimely. (Id. at
9-10, 17-20). On September 21, 2017, the Arizona Court of
Appeals granted review, but denied relief. (Id. at
6-7). Petitioner did not petition the Arizona Supreme Court
for further review. On November 7, 2017, the Arizona Court of
Appeals issued its mandate. (Id. at 12).
November 13, 2017, Petitioner filed the Petition (Doc. 1)
seeking federal habeas relief.
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 110 Stat. 1214,  a state prisoner
must file his or her federal habeas petition within one year
of 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 petitioner was
prevented from filing by the State action;
C. The date on which the right asserted was initially
recognized by the United States Supreme Court, if that right
was newly recognized by the Court and made retroactively
applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim
presented could have been discovered through the ...