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Kennedy v. Thompson

United States District Court, D. Arizona

March 8, 2019

Bradley William Kennedy, Petitioner,
v.
Gerald Thompson, et al., Respondents.

          AMENDED ORDER

          G. MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE

         Pending 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 with prejudice.

         BACKGROUND

         Because 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.

         DISCUSSION

         In his 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.

         I. Legal Standards

         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). “[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).

         II. Analysis

         AEPDA 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).

         The 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.

         A. Equitable Tolling

         Kennedy 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 Cir. 2006).

         To 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 ...


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