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Uriarte-Velazquez v. Ryan

United States District Court, D. Arizona

July 19, 2018

Ernesto Uriarte-Velazquez, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge

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

         Petitioner Ernesto Uriarte-Velazquez has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. Summary of Conclusion.

         Petitioner's trial convictions became final on February 18, 2016. This habeas Petition was due by February 19, 2017 but was not filed until November 16, 2017. Petitioner's untimely post-conviction review proceedings did not toll the date his habeas Petition was due. Because there are no grounds to warrant equitable tolling, the Court concludes the Petition is untimely. Therefore, the Court will recommend the Petition be denied and dismissed with prejudice.

         II. Background.

         A. Facts.

         Petitioner was indicted by the State of Arizona on December 12, 2012. (Doc. 13-1, Ex. A, at 3.) The Arizona Court of Appeals found the following facts and procedural history as true:[1]

Defendant's convictions stem from a home-invasion robbery in which a group of masked men armed with handguns broke into a home occupied by the victims: Husband, Wife, Baby, and Cousin. After binding Husband and Cousin with tape and confining Wife and Baby to a bedroom at gunpoint, the robbers took Wife's cell phone and approximately $2, 700 in cash. The intruders fled when police responded to a 911 call from Wife, but were apprehended in the neighborhood around the victims' home. Defendant, the get-away driver for the robbers, was taken into custody following a brief car chase.
Defendant was indicted on one count of burglary in the first degree, a class 2 felony and dangerous offense; three counts of kidnapping, class 2 felonies and dangerous offenses; one count of kidnapping, a class 2 felony and dangerous crime against children; three counts of armed robbery, class 2 felonies and dangerous offenses; and three counts of aggravated assault, class 3 felonies and dangerous offenses. At trial, the court granted judgment of acquittal on the charge of kidnapping Baby, and the state dismissed one of the armed robbery counts. The jury acquitted Defendant of one of the two remaining armed robbery counts but found him guilty of the eight remaining counts as charged. The trial court imposed concurrent and consecutive presumptive prison terms totaling eighteen years.

(Doc. 13-1, Ex. P, at 1186.)

         B. Direct Appeal.

         On April 18, 2015, Petitioner filed a timely notice of appeal from the convictions and sentences. (Doc. 13-1, Ex. N, at 1134.) On January 14, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 13-1, Ex. P, at 1191.) On March 16, 2016, the mandate issued. (Id. at 1184.)

         C. Post-Conviction ...


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