Johnson v. Ryan

          ORDER

          David G. Campbell Senior United States District Judge

         Petitioner Christopher Johnson filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Magistrate Judge Deborah Fine issued a report recommending that the petition be denied as untimely (“R&R”). Doc. 12. The Court will accept the R&R and deny the petition.

         I. Background.

         On November 18, 2013, Petitioner pled guilty to sexual abuse, sexual conduct with a minor, and attempted sexual conduct with a minor. Doc. 9-1 at 25-37. He was sentenced to 15.5 years in prison followed by lifetime probation on December 17, 2013. Doc. 9-2 at 2-8.

         Petitioner filed a post-conviction relief (“PCR”) notice on June 10, 2017. Doc. 9-2 at 14-16. The trial court dismissed the notice as untimely because it was not filed within 90 days of the sentencing. Id. at 18-19 (citing Ariz. R. Crim. P. 32.4(a)). Petitioner filed a PCR petition on August 21, 2017, which was dismissed as untimely and successive. Id. at 23-29.

         On May 31, 2018, Petitioner filed a petition for review with the court of appeals. Id. at 31-34. The petition was denied as untimely because it was not filed within 30 days of the trial court's final decision. Doc. 9-3 at 2-3 (citing Ariz. R. Crim. P. 32.9(c)(1)(a)).

         Petitioner filed the present habeas petition in July 2018. Doc. 1. The petition asserts a single claim of ineffective assistance of counsel. Id. at 6-7. Petitioner does not seek to overturn his convictions, but instead requests a reduced sentence. Id. at 11. Judge Fine recommends that the petition be denied as untimely. Doc. 12 at 7-12.

         II. Legal Standard.

         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). The Court “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). The Court is 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); Fed.R.Civ.P. 72(b)(3).

         III. Discussion.

         A. Statute of Limitations.

         Petitions for writs of habeas corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. The AEDPA imposes a one-year deadline for filing an initial habeas petition. § 2244(d)(1). The limitation period generally begins to run when the state conviction becomes final upon the expiration or conclusion of direct review. § 2244(d)(1)(A). 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. See Summers v. Schriro, 481 F.3d 710, 716-17 (9th Cir. 2007). Defendants convicted in Arizona state court for non- capital crimes have 90 days after the entry of judgment and sentence to file a PCR notice. See Ariz. R. Crim. P. 32.4(a)(2)(C).^[1]

         Statutory tolling of the AEDPA's one-year limitation period is available for the time during which a properly filed PCR notice or petition is pending. § 2244(d)(2). For equitable tolling to apply, the petitioner must show that he “has diligently pursued his rights, ” and “some ‘extraordinary circumstance' prevented him from filing on time.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). In addition, an equitable exception to the limitation period applies if the petitioner makes “a credible showing of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).

         B. Judge ...