Soto v. Ryan

          REPORT AND RECOMMENDATION

          Eileen S. Willett United States Magistrate Judge

         TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

         Pending 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.

         I. BACKGROUND

         In 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).

         On May 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.

         In 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).

         On November 13, 2017, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief.^[1]

         II. LEGAL STANDARDS

         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, ^[2] 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 ...