United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge
On
April 5, 2017, Petitioner filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 (“the
Petition”). (Doc. 1.) On February 16, 2018, Magistrate
Judge Boyle issued a Report and Recommendation
(“R&R”) concluding the Petition should be
denied and dismissed with prejudice. (Doc. 16.) Afterward,
Petitioner filed written objections to the R&R (Doc. 21)
and Respondents filed a response (Doc. 22). As explained
below, the Court will deny Petitioner's objections.
I.
Background
In
December 2009, Petitioner came to the Phoenix Police
Department, asked to speak with a homicide detective, and
proceeded to confess that he had murdered another man in
1988. (Doc. 16 at 2.) The detective subsequently located an
old police report from 1988 that corroborated
Petitioner's confession. (Id.)
In
November 2010, Petitioner pleaded guilty to one count of
second-degree murder in Arizona state court. (Id. at
3.) In December 2010, Petitioner was sentenced to 15
years' imprisonment. (Id.)
In June
2011, Petitioner filed a habeas corpus petition under 28
U.S.C. § 2254, but in July 2011, this Court
“summarily dismiss[ed] the petition without prejudice
so that Petitioner may attempt to exhaust his claims in state
court.” (Doc. 16 at 3 [quoting 2:11-cv-1120-NVW-LOA,
Doc. 5 at 4.].) The Court's dismissal order further
stated: “Petitioner is informed there is a one-year
statute of limitation in which to file a federal habeas
petition, which runs from the latter of ‘the date on
which the [state court] 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)(1),
excluding ‘[t]he time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending.'” (Id.)
In
August 2011, Petitioner mailed his first notice of
post-conviction relief. (Doc. 16 at 3.) However, in January
2012, Petitioner asked that this PCR claim be dismissed.
(Id.) In February 2012, the court granted this
request and dismissed the claim. (Id.)
In
August 2014, Petitioner mailed his second notice of
post-conviction relief, alleging that his initial PCR counsel
was ineffective. (Doc. 16 at 3.) In September 2014, the court
dismissed this claim on untimeliness grounds. (Id.)
In
September 2014, Petition sought review, in the Arizona Court
of Appeals, of the dismissal of his second PCR proceeding.
(Doc. 16 at 4.) In September 2016, the court granted review
but denied relief. (Id.)
In
April 2017, Petitioner filed the Petition. (Doc. 1.) It
asserts four claims: (1) the police violated Petitioner's
Fifth and Sixth Amendment rights by failing to advise him of
his Miranda rights; (2) the police violated
Petitioner's Fifth and Sixth Amendment rights by failing
to comply with his request for counsel; (3) Petitioner's
plea agreement was unconstitutional; and (4) Petitioner
received ineffective assistance of PCR counsel in violation
of his Fifth, Sixth, and Fourteenth Amendment rights. (Doc.
16 at 4.)
The
R&R concludes the Petition was untimely filed. First, the
R&R states that the Petition wasn't filed within
AEDPA's one-year statute of limitations because (1) under
Arizona law, Petitioner had until March 2011 to provide
notice of his intention to pursue PCR proceedings, (2)
Petitioner failed to do so within this timeframe, (3)
AEDPA's one-year statute of limitations therefore began
running in March 2011 and expired in March 2012, and (4) the
Petition wasn't filed until 2017. (Doc. 16 at 4-5.)
Second, the R&R states that Petitioner isn't entitled
to “statutory tolling” because that doctrine
applies only during the pendency of a timely-filed
PCR proceeding, and Petitioner's PCR proceedings in this
case were untimely. (Id. at 5-6.) Third, the R&R
states that Petitioner isn't entitled to “equitable
tolling” because he was specifically warned, in this
Court's July 2011 order dismissing his prematurely-filed
habeas petition, that he would need to file any subsequent
habeas petition within one year of the conclusion of state
proceedings, yet he “waited more than two years after
his first PCR petition was dismissed to take any further
action in this case” without explaining the extensive
delay. (Id. at 7.) The R&R concludes that
“[e]ven if the Court excused all of the time from his
sentencing to the dismissal of his first PCR proceeding,
Petitioner has not exhibited reasonable diligence in pursuing
his claims.” (Id.)
II.
Legal Standard
A party
may file specific, written objections to an R&R within
fourteen days of being served with a copy of it. Rules
Governing Section 2254 Cases 8(b) (“Section 2254
Rules”); see also Fed. R. Civ. P. 72(b)(2); 28
U.S.C. § 636(b)(1)(C). The Court must undertake a de
novo review of those portions of the R&R to which
specific objections are made. See, e.g., Thomas v.
Arn, 474 U.S. 140, 149-50 (1985) (“It does not
appear that Congress intended to require district court
review of a magistrate's factual or legal conclusions,
under a de novo or any other standard, when neither
party objects to those findings.”); United States
v. Reyna-Tapia, 328 F.3d 1114, 1221 (9th Cir. 2003)
(“[T]he district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not ...