United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
John Michael Northrop filed a petition under 28 U.S.C. §
2254 to vacate, set aside, or correct his sentence. Doc. 1.
Magistrate Judge James F. Metcalf issued a Report and
Recommendation (“R&R”) recommending that the
Court deny the petition as untimely and without merit. Doc.
15 at 5, 16-22. The Court will accept the R&R and deny
pled guilty to one count of sexual conduct and two amended
counts of attempted sexual conduct relating to a victim under
15 years of age, both designated as dangerous crimes against
children. Docs. 15 at 2; 1 at 2. Petitioner was sentenced to
14 years in prison followed by lifetime probation. Doc. 15 at
2. In his § 2254 petition, Petitioner asks the Court to
discharge him from custody, restore his rights, and return
seized property. Doc. 1 at 8. Petitioner argues that the
Arizona Superior Court lacked subject matter jurisdiction
over his criminal case, and he asserts various deficiencies
in his indictment and conviction. Id.
Court “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)(1). “[T]he
district judge must review the magistrate judge's
findings and recommendations de novo if objection is made,
but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc). District courts are not required to conduct “any
review at all . . . of any issue that is not the subject of
an objection.” Thomas v. Arn, 474 U.S. 140,
149 (1985); see also 28 U.S.C. § 636(b)(1).
filed four objections to the R&R. See Doc. 16 at
5-13. Petitioner objects to Judge Metcalf's findings
that: (1) the Arizona Superior Court was not acting as a de
facto federal court when it convicted and sentenced
Petitioner; (2) Petitioner's § 2254 motion is
untimely; (3) Petitioner's crime of conviction is
properly considered a dangerous crime against children under
state law; and (4) Petitioner's argument regarding the
Enactment Clause of the Arizona Constitution is without
merit. Id. The Court will first address the
timeliness of Petitioner's petition.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes a one-year deadline for filing
an initial habeas petition, running from “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d). Arizona's Rule
32 of-right proceeding, available to criminal defendants who
plead guilty, is considered a form of direct review for
purposes of determining whether the statute of limitations
has run. Summers v. Schriro, 481 F.3d 710, 716-17
(9th Cir. 2007). Defendants convicted in Arizona state court
have 90 days after sentencing to file a timely petition for
post-conviction relief (“PCR”). See
Ariz. R. Crim. P. 32.4.
was sentenced on September 25, 2013, and his conviction
became final on December 24, 2013, when the 90-day deadline
expired and Petitioner had not filed notice of a PCR
petition. Doc. 15 at 10. Petitioner had one year from
December 25, 2013 to file his § 2254 petition for a writ
of habeas corpus. 28 U.S.C. § 2244(d). Petitioner did
not file his petition until December 27, 2017. Doc. 1. Thus,
in the absence of equitable tolling, the Court must dismiss
Petitioner's petition as untimely.
petitioner bears the burden of showing that equitable tolling
is appropriate. Raspberry v. Garcia, 448 F.3d 1150,
1153 (9th Cir. 2006). To do so, a petitioner must show
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way.” Id. (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).
argues that “there was no conviction and there is no
deadline” because “no conviction was
entered” in the Arizona Superior Court. Doc. 16 at 7-8.
He also argues that he is entitled to equitable tolling
because the State violated the Sixth and Fourteenth
Amendments by “depriv[ing] Petitioner of his due
process right to be informed of the nature and cause of the
accusation, ” and that he had no knowledge of the
“facts necessary to constitute the offenses of
convictions and opportunity for objection to them.”
Id. at 8.
extent Petitioner advances substantive or procedural
arguments regarding his trial, plea, or conviction, his
objection fails to provide a basis for equitable tolling. Nor
does he otherwise address the R&R's findings
regarding his untimely petition. Petitioner filed his §
2254 petition more than three years after the deadline. He
fails to show how he was diligently pursuing his rights and
what extraordinary circumstance stood in his way. Nor does he
allege any other basis for determining that the statute of
limitations began running later than December 25, 2013.
Because Petitioner's petition is untimely, the Court
lacks jurisdiction to consider his claims. 28 U.S.C. §
2244; Pace, 544 U.S. at 419.