United States District Court, D. Arizona
REPORT AND RECOMMENDATION
S. Willett, United States Magistrate Judge
THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT
before the Court is Edgar Contreras'
(“Petitioner”) “Petition under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus” (the
“Petition”) (Doc. 1). For the reasons explained
herein, the undersigned recommends that the Court dismiss the
Petition as untimely.
2002, a Maricopa County Grand Jury indicted Petitioner on one
count of first degree murder and two counts of attempted
first degree murder. (Bates Nos. 1-3). Petitioner entered
into a plea agreement in which Petitioner pled guilty to
first degree murder. (Bates Nos. 4-6). The trial court
accepted Petitioner's guilty plea. (Bates Nos. 7-8). On
September 9, 2002, the trial court sentenced Petitioner to
life with the possibility of parole after 25 years. (Bates
January 24, 2003,  Petitioner filed a Notice of
Post-Conviction Relief (“PCR”), which the trial
court dismissed as untimely. (Bates Nos. 25-29). Petitioner
filed a second PCR Notice in November 2016, which the trial
court also dismissed as untimely. (Bates Nos. 30-35). In June
2017, the trial court dismissed Petitioner's third PCR
Notice as untimely and successive. (Bates Nos. 36-42).
Petitioner filed a Petition for Review concerning the trial
court's dismissal of the third PCR Notice. (Bates Nos.
43-52). In their Limited Answer, Respondents indicate that
the Petition for Review remains pending. (Doc. 25-1 at 5).
March 28, 2017, Petitioner filed the Petition (Doc. 1)
seeking federal habeas relief.
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 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 exercise of
28 U.S.C. § 2244(d)(1); see also Hemmerle v.
Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The
one-year limitations period, however, does not necessarily
run for 365 consecutive days as it is subject to tolling.
Under AEDPA's statutory tolling provision, the
limitations period is tolled during the “time during
which a properly filed application for State post-conviction
relief or other collateral review with respect to the
pertinent judgment or claim is pending.” 28 U.S.C.
§ 2244(d)(2) (emphasis added); Roy v. Lampert,
465 F.3d 964, 968 (9th Cir. 2006) (limitations period ...