United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
before this Court is a Report and Recommendation from the
Magistrate Judge to whom this case was assigned recommending
that the Petition in this case be denied. The R&R
recounted the procedural history of this case (Doc. 10 at
1-2). As is relevant to this Order:
In February 2015, Petitioner filed a Notice of
Post-Conviction Relief (“PCR”). (Bates No.
461-63). The trial court appointed PCR counsel, who could not
find a colorable claim for relief. (Bates No. 472). The trial
court set September 28, 2015 as the deadline for Petitioner
to file a pro se PCR Petition. (Bates No. 474). Petitioner
did not file a PCR Petition.
(Doc. 10 at 2).
respect to the statute of limitations issue, the R&R
Here, Respondents state that Petitioner's first PCR
Notice “tolled AEDPA's 1-year limitation period
until the conclusion of the PCR proceeding.” [footnote
omitted] (Doc. 8 at 6). Respondents correctly recount that
Petitioner failed to file a pro se PCR Petition by the
September 28, 2015 deadline. (Id.). Yet the record
does not reflect that the trial court issued an order
dismissing the PCR proceeding. Respondents have not cited any
state rule or case law providing that a PCR proceeding is
automatically concluded if a defendant fails to file a PCR
Petition by the applicable deadline.
(Doc. 10 at 3).
Court has reviewed Respondents' answer to the Petition
for Writ of Habeas Corpus in this case including
Respondents' argument that the Petition is barred by the
statute of limitations. (Doc. 8 at 5-7). The R&R does not
reach this argument. (Doc. 10 at 3). Instead the R&R
concludes that the claims in the Petition are procedurally
defaulted without excuse. (Id.) (“The issue
need not be decided, however, as the following discussion
explains that Petitioner's habeas claims are procedurally
defaulted without excuse.”)
Court is concerned, however, with whether this Court must
determine whether Petitioner's first post-conviction
relief petition is still pending in the state court to
determine not only the statute of limitations issue, but also
whether the Petition currently pending before this Court is a
mixed petition that must be dismissed. See Rose v.
Lundy, 455 U.S. 509 (1982) (“[W]e hold that a
district court must dismiss such ‘mixed petitions,'
leaving the prisoner with the choice of returning to state
court to exhaust his claims or of amending or resubmitting
the habeas petition to present only exhausted claims to the
district court.”). Specifically, the Court is concerned
that the theories of ineffective assistance of counsel in
claim one are unexhausted, but could still be exhausted in a
“pending” first post-conviction relief petition.
However, the issue in claim two was required to be raised on
direct appeal and was not. Thus, the issue in claim two is
procedurally defaulted but technically exhausted because
Petitioner could not return to state court now to exhaust
this claim under the state procedural rules. As a result,
claim one would be unexhausted and claim two would be
technically exhausted, resulting in a mixed petition.
reiterating the statute of limitations argument, Respondents
will be required to file a brief addressing whether
Petitioner's first post-conviction relief petition is
pending in state court, and if yes, whether the Petition
before this Court is a mixed Petition. See generally
Morgal v. Ryan, No. CV-11-2552-PHX-NVW, 2013 WL 655122,
at *9 (D. Ariz. Jan. 18, 2013), report and recommendation
adopted, No. CV-11-02552-PHX-NVW, 2013 WL 645960 (D.
Ariz. Feb. 21, 2013).
on the foregoing, IT IS ORDERED that
Respondents shall file a supplemental brief addressing the
foregoing issue by March 20, 2019. Petitioner may respond to
the supplemental brief by April 3, 2019.
The Court in Morgal