United States District Court, D. Arizona
MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE
before the court is Petitioner Bradley William Kennedy's
Amended Petition for a Writ of Habeas Corpus. (Doc. 6).
Magistrate Judge Eileen S. Willett's Report and
Recommendation (“R&R”), (Doc. 14), recommends
that Kennedy's petition be dismissed and that no
certificate of appealability be granted. Kennedy timely filed
Objections. (Doc. 15). The Attorney General of the State of
Arizona filed a Response to the Objections. (Doc. 16).
Kennedy's Petition is untimely and is therefore dismissed
no party has objected to the factual and procedural
background as set forth in the R&R, the Court adopts the
background as an accurate account.
petition, Kennedy asserts several grounds for habeas relief.
(Doc. 1). However, the initial inquiry is whether
Kennedy's petition is timely under the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”). The
R&R correctly concludes that Kennedy's petition is
untimely and should therefore be dismissed with prejudice.
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). “[T]he
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) (emphasis in original). 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).
established a strict statute of limitations for the filing of
federal habeas petitions. Such a petition must be filed
within one year of the latest of four circumstances.
See 28 U.S.C. § 2244(d)(1). The relevant period
for this case is “the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review.” Id.
(d)(1)(a). The one-year period, however, is often subject to
tolling. AEDPA tolls the limitations period during the
“time during which a properly filed application for
State post-conviction relief or other collateral review with
respect to the pertinent judgment or claim is pending.”
28 U.S.C. § 2244(d)(2). AEDPA's statute of
limitations is also subject to equitable tolling. Holland
v. Florida, 560 U.S. 631, 645 (2010). But equitable
tolling is not frequently available. To qualify, a petitioner
must establish that (1) he has been pursuing his rights
diligently and (2) extraordinary circumstances prevented him
from filing their habeas petition on time. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
parties do not contest that Kennedy's limitations period
began running on June 6, 2013. Kennedy, however, contends
that his limitations period should be equitably tolled.
Because he fails to demonstrate that extraordinary
circumstances prevented him from filing his petition before
the expiration of AEDPA's limitations period, his
petition is untimely and should be dismissed with prejudice.
objects to the R&R's conclusion that equitable
tolling does not apply. Kennedy contends that it should apply
such that the limitations period did not end until February
15, 2017. Kennedy bears the burden of establishing that
equitable tolling is warranted. Pace, 544 U.S. at
418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th
establish that equitable tolling applies, Kennedy must
demonstrate that extraordinary circumstances were the
proximate cause of his untimeliness. Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003). In his
objections to the R&R, Kennedy asserts the
“extraordinary circumstance” of
“ineffective assistance of counsel during his state
post-conviction proceeding.” (Doc. 15 at 2). But
Kennedy fails to explain why this alleged ineffectiveness of
PCR counsel prevented him from filing his federal habeas
petition within the required time. He therefore does not
“show a causal connection ...