United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before this Court is Petitioner James Francis's Petition
for Writ of Habeas Corpus (“Petition”). (Doc. 1).
The Magistrate Judge issued a Report and Recommendation
(“R&R”) recommending that the Petition be
denied and dismissed because it is barred by the
Antiterrorism and Effective Death Penalty Act's
(“AEDPA”) statute of limitations and,
alternatively, is either procedurally defaulted or
procedurally barred. (Doc. 12 at 4-11). The R&R further
recommended that a Certificate of Appealability be denied.
(Id. at 11). Petitioner filed an Objection to the
Report and Recommendation (“Objection”). (Doc.
REVIEW OF AN R&R
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). It is “clear
that the 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) (“[T]he court shall make a de novo
determination of those portions of the [R&R] to which
objection is made.”). In this case, Petitioner filed an
Objection, (Doc. 13), and the Court will review the relevant
portions of the R&R de novo.
FACTUAL AND PROCEDURAL BACKGROUND
R&R summarized the factual and procedural history of this
case and neither party objected to this history. (Doc. 12 at
1-4). Therefore, the Court adopts that portion of the
STATUTE OF LIMITATIONS
R&R recommends that the Petition be denied as barred by
the AEDPA's statute of limitations. (Id. at
4-8). As explained by the Magistrate Judge, the AEDPA
provides a one-year statute of limitations for state
prisoners to file a petition for writ of habeas corpus in
federal court. (Id. at 4); see also 28
U.S.C. § 2244(d). That period generally commences on
“the date on which the judgment became final by the
conclusion of direct review of the expiration of the time for
seeking such review.” (Id. (quoting 28 U.S.C.
§ 2244(d)(1)(A))). Examining Petitioner's procedural
history in state court, the Magistrate Judge determined that
Petitioner's conviction became final on November 1, 2011.
(Id. at 5). Therefore, AEDPA's one-year statute
of limitations period commenced the next day and expired on
November 1, 2012. (Id.). Consequently, the Petition
filed in January 2018 is untimely absent any statutory or
equitable tolling. (Id.).
statutory tolling, the Magistrate Judge explained that the
“AEDPA provides for tolling of the limitations period
when a ‘properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending.'”
(Id. (quoting 28 U.S.C. § 2244(d)(2))). An
untimely application is never “properly filed”
within the meaning of Section 2244(d)(2). (Id.
(citing Pace v. DiGugliemo, 544 U.S. 408, 414
(2005))). Petitioner never filed a PCR notice, and his 2016
motion for clarification-assuming arguendo it is a
PCR notice under A.R.S. § 13-4234-was filed “after
the statute of limitations expired.” (Id. at
6). Therefore, the Magistrate Judge concluded that “no
statutory tolling applies.” (Id.).
to equitable tolling, the Magistrate Judge explained that the
Ninth Circuit permits “equitable tolling of AEDPA's
limitations period ‘only if extraordinary circumstances
beyond a prisoner's control make it impossible to file a
petition on time.'” (Id. (quoting
Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.
1999))). To receive equitable tolling, “a petitioner
must show ‘(1) that he has been pursuing his rights
diligently and (2) that some extraordinary circumstances
stood in his way' to prevent him from timely filing a
federal habeas petition.” (Id. (quoting
Holland v. Florida, 560 U.S. 631, 645 (2010))).
Petitioner did not argue for, and the record does not suggest
that, equitable tolling applies. (Id.). Accordingly,
the Magistrate Judge concluded that Petitioner is not
entitled to equitable tolling. (Id. at 6-8).
the Magistrate Judge noted that a finding of actual innocence
can excuse the untimeliness of a federal habeas petition.
(See Id. (citing McQuiggen v. Perkins, 569
U.S. 383, 391-96 (2013))). For the excuse to apply, a
“petitioner must make a credible showing of
‘actual innocence' by ‘persuad[ing] the
district court that, in light of the new evidence,' no
juror, acting reasonably, would have found him guilty beyond
a reasonable doubt.” (Id. (quoting Schlup
v. Delo, 513 U.S. 298, 329 (1995))). Noting that
Petitioner “did not argue” for actual innocence,
the Magistrate Judge concluded that he did not qualify for
this excuse. (Id.).
on Petitioner's failure to file his habeas action within
the statute of limitations and his failure to state a
sufficient basis for statutory tolling, equitable tolling, or
actual innocence, the Magistrate Judge concluded that the
Petition must be dismissed with prejudice as untimely.
(Id. at 4-8).
Objection did not address the AEDPA's statute of
limitations, statutory tolling, equitable tolling, or actual
innocence. (Doc. 13). Instead, the Objection raised arguments
going to the merits of Petitioner's Petition. See,
e.g., (Id. at 9 (“The Arizona statutory
scheme for protection of child molestation rest upon the
improper assignment of the burden of disproving, or negating,
‘sexual motivation' implicit in the offense to
accused by a preponderance of the evidence at
trial.”)). Accordingly, Petitioner does not object to
the Magistrate Judge's application of the AEDPA's
statute of limitations to his procedural history or the
determination that Petitioner's one-year statute of