Contreras v. Ryan

          REPORT AND RECOMMENDATION

          Eileen S. Willett, United States Magistrate Judge

         TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:

         Pending 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.

         I. BACKGROUND

         In 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 Nos. 19-22).

         On January 24, 2003, ^[1] 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).

         On March 28, 2017, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief.

         II. LEGAL STANDARDS

         Under 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 due diligence.

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 ...