Francis v. Ryan

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending 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. 13).

         I. REVIEW OF AN R&R

         This 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         The 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 R&R.

         III. STATUTE OF LIMITATIONS

         The 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.).

         Regarding 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.).

         Turning 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).

         Finally, 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.).

         Based 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).

         IV. Petitioner's Objections

         Petitioner's 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 ...