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Jackson v. Ryan

United States District Court, D. Arizona

February 5, 2019

Kenneth Leslie Jackson, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          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 ...


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