United States District Court, D. Arizona
ORDER
Steven
P. Logan, Judge
The
Court has before it Petitioner's Amended Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
(Doc. 11.) The Court has also received Respondents'
Limited Answer (Doc. 12), Petitioner's Reply to the
Limited Answer (Doc. 16), the Report and Recommendation of
the Magistrate Judge (Doc. 19), and Petitioner's
Objections to the Report and Recommendation. (Doc. 24).
Petitioner
argues in Ground 1 that the entry of his guilty plea was not
knowing, intelligent, and voluntary. (Doc. 11 at 8-9.) In
Ground 2, Petitioner contends that he received deficient plea
advice due to ineffective assistance of counsel. (Doc. 11 at
9-10.) In Ground 3, Petitioner argues that his sentence was
based on aggravating factors that were not found beyond a
reasonable doubt, or admitted by Petitioner. (Doc. 11 at 10.)
In Ground 4, Petitioner alleges that his counsel was
ineffective at sentencing for failing to inform Petitioner of
his rights related to the determination of aggravating
factors. (Doc. 11 at 10.) In Ground 5, Petitioner argues that
his due process rights were violated because he received an
aggravated sentence and was not informed of his rights
regarding aggravating factors.
(Doc.
11 at 10-11.) In Ground 6, Petitioner argues that his
of-right post conviction proceedings did not comply with
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967). (Doc. 11 at 11-12.)
Respondents
argue that Petitioner's claims are untimely. (Doc. 12 at
2, 5-6.) Specifically, Respondents assert that Petitioner
filed his habeas petition more than five years after the
statute of limitations had elapsed, and he failed to exhaust
any of his claims in state court. (Doc. 12 at 2.) Further,
Respondents contend that Petitioner is not entitled to
equitable tolling. (Doc. 12 at 6.) The Magistrate Judge
concluded that Petitioner failed to file a timely habeas
petition, and that he failed to satisfy the high threshold
for equitable tolling. (Doc. 19 at 4-5.)
Petitioner's
case became final for purposes for the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) on
January 19, 2011.[1] The record reflects that the instant
Petition was not filed until June 9, 2017. (Doc. 1.)
A
district judge “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). When a
party files a timely objection to an R&R, the district
judge reviews de novo those portions of the R&R
that have been “properly objected to.”
Fed.R.Civ.P. 72(b). A proper objection requires
specific written objections to the findings and
recommendations in the R&R. See United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28
U.S.C. § 636(b) (1). It follows that the Court need not
conduct any review of portions to which no specific objection
has been made. See Reyna-Tapia, 328 F.3d at 1121;
see also Thomas v. Arn, 474 U.S. 140, 149 (1985)
(discussing the inherent purpose of limited review is
judicial economy). Further, a party is not entitled as of
right to de novo review of evidence or arguments
which are raised for the first time in an objection to the
R&R, and the Court's decision to consider them is
discretionary. United States v. Howell, 231 F.3d
615, 621-622 (9th Cir. 2000).
The
Court has undertaken an extensive review of the sufficiently
developed record. Petitioner's objections to the findings
and recommendations have also been carefully considered.
After
conducting a de novo review of the issues and
objections, the Court reaches the same conclusions reached by
Judge Burns. This Court finds that the Petition is untimely
and that Petitioner has failed to meet the high threshold for
equitable tolling. Having carefully reviewed the record, the
Petitioner has not shown that he is entitled to habeas
relief. The R&R will be adopted in full. Accordingly,
IT IS ORDERED:
1. That the Magistrate Judge's Report and Recommendation
(Doc. 19) is accepted and
adopted by the Court;
2. That Petitioner's Objections (Doc. 24) are
overruled;
3. That the Amended Petition for Writ of Habeas Corpus (Doc.
11) is denied and this action is
dismissed with prejudice;
4. That a Certificate of Appealability and leave to proceed
in forma pauperis on appeal ...