United States District Court, D. Arizona
G. Campbell Senior United States District Judge
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.
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.
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.
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)).
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.
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).
Statute of Limitations.
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).
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).