United States District Court, D. Arizona
A. Teiirorg Senior United States District Judge
before the Court is the Report and Recommendation
(“R&R”) from the Magistrate Judge
recommending that the Petition for Writ of Habeas Corpus in
this case be dismissed because it is barred by the statute of
limitations. (Doc. 33). Petitioner and Respondents have
objected to this conclusion. (Docs. 34 and 37).
their limited answer (Doc. 22 at 10), Respondents argued that
the Petition in this case is completely barred by the statute
of limitations. Thereafter, Respondents
“withdrew” this argument. (Doc. 29). However, in
their objections to the R&R, without reference to their
answer, or their withdrawal of this argument (beyond footnote
1), Respondents now argue that the Petition is partially
barred by the statute of limitations and partially timely.
(Doc. 34 at 5). Separately, Petitioner objects to the
R&R and argues the Petition is timely.
37 at 4).
specifically, the discrepancy in the calculation of the
statute of limitations stems from whether Petitioner is
entitled to statutorily tolling of the statute of limitations
while his Petition for Writ of Certiorari was pending with
the United States Supreme Court. The R&R concludes that
there is no tolling for this time period, causing the statute
of limitations to begin to run on October 23, 2013. (Doc. 33
at 9). Respondents now concede that Petitioner is entitled to
tolling for this time period, causing the statute of
limitations to begin to run on June 30, 2014. (Doc. 34 at 4).
Because all parties agree that the Petition in this case (at
least in part) is timely; the Court will reject the R&R
and re-refer this case for the preparation of a second
to re-referring the case, however, the Court will comment on
Respondents' argument that the Petition pending before
this Court is timely as to only certain claims. Specifically,
Respondents argue that Petitioner's statute of
limitations to file his habeas petition began running on June
30, 2014. Respondents then concede that Petitioner's
second petition for post-conviction relief, filed on July 17,
2014, was “properly filed” such that it tolled
the statute of limitations for filing this habeas petition.
See Pace v. DiGuglielmo, 544 U.S. 408, 413-16 (2005)
(discussing when a filing in state court is considered
“properly filed”); see also 28 U.S.C.
Respondents argue that because the state court ultimately
rejected some of the claims in the second post-conviction
relief petition as untimely, this Court should deem the
federal statute of limitations to have been running since
June 30, 2014 on those claims, and consider the federal
statute of limitations to have been running since November
15, 2016 (when the second post-conviction relief proceeding
concluded in state court) as to the claims the state court
considered under Arizona Rule of Criminal Procedure 32.1(e)
and (h). Thus, Respondents conclude that two of the
claims in the currently pending habeas petition are timely
and all the others are barred by the statute of limitations.
(Doc. 34 at 5).
Court is skeptical that Respondents' approach is a
correct reading of Pace. First, the Court is aware
of no court that has held that statutory tolling is
considered on a claim by claim basis. Second,
Respondents' approach would have required Petitioner to
file his federal habeas petition as to his claims that were
untimely under state law while the state court was still
considering his second post-conviction relief petition that
was “properly filed” as to some claims. Under
this approach, Petitioner would have filed a mixed petition
because he was still exhausting his “properly
filed” claims in state court. Mixed petitions are
generally disallowed. See Rose v. Lundy, 455 U.S.
509 (1982). Because mixed petitions are generally disallowed,
the Court is skeptical of an application of the statute of
limitations that would mandate that Petitioner file a mixed
petition to preserve certain claims.
U.S.C. § 2244(d)(2) states, “[t]he time during
which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.” Here,
Petitioner's second petition for post-conviction relief,
which Respondents concede (at least in part) was
“properly filed” was “with respect to the
pertinent judgment.” Therefore, this Court leans
towards finding the entire Petition in this case to be
at this point, this Court will not rule on waiver
(see footnote 1) or whether all claims are timely
under the statute of limitations without the benefit of full
briefing by the parties. Thus, the Magistrate Judge, in
preparing a second Report and Recommendation, may conclude
any way she deems appropriate.
on the foregoing, IT IS ORDERED that the
Report and Recommendation (Doc. 33) is rejected; the
objections (Docs. 34 and 37) are sustained to the limited
extent specified herein.
IS FURTHER ORDERED this matter is referred to
Magistrate Judge Michelle H. Burns pursuant to Rules 72.1 and
72.2 of the Local Rules of Civil Procedure for further
proceedings and a Report and Recommendation.
IS FURTHER ORDERED that the motion for leave to file
a Reply (Doc. 40) is denied. The ...