United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
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.
Review of an R&R
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.
Factual and Procedural Background
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.Accordingly, the Court adopts the
R&R's history in this case and will address the
Petitioner's objections in the context of his
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.
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
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).
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).
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 ...