Holtz v. Ryan

          ORDER

          James A. Teiirorg Senior United States District Judge

         Pending 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).

         In 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).^[1] Separately, Petitioner objects to the R&R and argues the Petition is timely.

         (Doc. 37 at 4).

         More 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 R&R.

         Prior 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. § 2244(d)(2).

         However, 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).^[2] 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).

         The 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.

         28 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 timely.^[3]

         However, 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.

         Based 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.

         IT 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.

         IT IS FURTHER ORDERED that the motion for leave to file a Reply (Doc. 40) is denied. The ...