Ochoa v. Ryan

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus (“Petition”). The Magistrate Judge issued a Report and Recommendation (“R&R”) recommending that the Petition be denied and dismissed because it is barred by the Anti-Terrorism and Effective Death Penalty Act's (“AEDPA”) statute of limitations. (Doc. 52 at 12). The R&R also recommends that a Certificate of Appealability be denied. (Id.).

         I. Review of an R&R

         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). It is “clear that the 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) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made”). In this case, Petitioner filed objections in his Response to Report and Recommendation (“Response”) (Doc. 55), and the Court will review those objections de novo.

         II. Factual and Procedural Background

         The R&R summarized the factual and procedural history in this case. (Doc. 52 at 2- 7). Petitioner states that the R&R's “summary is generally accurate, ” but disputes the R&R's characterization of the issues presented in Petitioner's direct appeal and raised in subsequent proceedings. (Doc. 55 at 1-2). Petitioner also objects to the R&R's characterization that the Arizona Supreme Court “summarily denied his petition, ” “instead of a refusal to accept review[.]” (Compare Doc. 52 at 4 with Doc. 55 at 2). To the extent these objections bear on Petitioner's statutory and equitable tolling claims, the Court will consider them below. However, objections that are not relevant to the statute of limitations analysis are not addressed because the Court does not reach the merits of these objections.^[1]Accordingly, the Court adopts the R&R's history in this case and will address the Petitioner's objections in the context of his arguments.^[2]

         III. R&R

         On October 11, 2018, the Magistrate Judge issued an R&R recommending that the Petition be denied as untimely under the AEDPA's statute of limitations. (Doc. 52 at 13). As explained by the Magistrate Judge, the AEDPA, 28 U.S.C. § 2244(d)(1), provides a one-year statute of limitations for a state prisoner to file a petition for writ of habeas corpus in federal court, which generally begins to run on “the date on which the judgment became final by [the] conclusion of direct review or the expiration of the time for seeking such review.” (Doc. 52 at 8 (quoting 28 U.S.C. § 2244(d)(1)(A))).

         Here, Petitioner's convictions became final on March 23, 2016 when the Arizona Court of Appeals dismissed Petitioner's post-conviction relief (“PCR”) petition. (Id. at 10). Petitioner did not file a motion for reconsideration, nor did he seek review by the Arizona Supreme Court. (Id.). The one-year statute of limitations period therefore commenced the next day, March 24, 2016, and expired the following year on March 23, 2017, absent any statutory or equitable tolling. (Id. at 10). Petitioner did not file the pending Petition until September 22, 2017, approximately six months after the limitations period expired. (Doc. 52 at 10 (citing Doc. 1 at 14)).

         A. Statutory Tolling

         Regarding statutory tolling, the Magistrate Judge explained that the “AEDPA requires tolling of the limitations period when a ‘properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending.'” (Id. at 9 (quoting 28 U.S.C. § 2244(d)(2)). Here, Petitioner's limitations period was to commence running on May 8, 2014. (Id.). Petitioner, however, initiated his PCR proceeding in the superior court before the limitations began by filing a Notice of PCR on March 31, 2014. (Id. (citing Doc. 16-3 at 2-4)); see Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1055-56 (9th Cir. 2004) (holding that PCR proceedings in Arizona commence with the filing of a Notice of PCR). The superior court dismissed Petitioner's PCR petition via minute entry dated October 8, 2015. (Id. at 5 (citing Doc. 18-4 at 2-6)). Petitioner later filed a notice of appeal in the superior court and a petition for review with the Arizona Court of Appeals. (Id. at 6 (citing Doc. 19-4 at 2; Doc. 20-4 at 2)). According to the Magistrate Judge, “[Petitioner's] PCR was ‘finally resolved' when the Arizona Court of Appeals issued its order dismissing the petition for review on March 23, 2016, ” causing the statute of limitations period to begin running on March 24, 2016. (Id. at 10; see also Doc. 20-4 at 2).

         The Magistrate Judge observed that during the period between the superior court's dismissal of Petitioner's PCR petition on October 8, 2015 and the Arizona Court of Appeals' order dismissing his petition for review on March 23, 2016, “[Petitioner] filed additional pleadings in the superior court.” (Id. at 6). Specifically, “[o]n December 23, 2015, Petitioner filed a motion to dismiss or vacate ‘all trial proceedings, '” which “[t]he superior court summarily denied in January 2016.” (Id. (citing Doc. 19-7 at 2-3; Doc. 19-8 at 2)). “On January 25, 2016, Petitioner filed a Writ of Coram Nobis in the trial court, ” which “[t]he superior court summarily denied and dismissed” on February 8, 2016. (Id. at 6-7 (citing Doc. 19-9 at 2-4; Doc. 20-1 at 2)). The Magistrate Judge reasoned that “[t]o the extent Petitioner might argue that his [additional motions] could be construed as prolonging his PCR action, the filing of these pleadings would not render his Petition timely” because both motions were resolved in state court prior to the Arizona Court of Appeals' dismissal of his petition for review on March 23, 2016. (Id. at 9-10). Accordingly, the Magistrate Judge concluded that Petitioner is not entitled to any statutory tolling and the pending Petition is untimely unless equitable tolling applies. (Id. at 10-11).

         B. Equitable Tolling

         Regarding equitable tolling, the Magistrate Judge explained that “for equitable tolling to apply, a petitioner must show ‘(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way' to prevent him from timely filing a federal habeas petition.” (Id. at 11 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted))). The Magistrate Judge further explained that a petitioner must act with “reasonable diligence” throughout the period he seeks to toll, (id. (citing Holland, 560 U.S. at 653)), and that the petitioner “bears the ...