United States District Court, D. Arizona
Gerald M. Calmese, Petitioner,
Charles L. Ryan, et al., Respondents.
G. Campbell, Senior United States District Judge
Gerald M. Calmese filed a petition under 28 U.S.C. §
2254 to vacate, set aside, or correct his sentence. Doc. 1.
Magistrate Judge Bridget S. Bade issued a Report and
Recommendation (“R&R”) recommending that the
Court deny the petition as untimely and without merit. Doc.
15. The Court will accept the R&R in part and reject it
in part, and remand the petition to a magistrate judge for
consideration of the claims in ground 5.
was indicted in the Maricopa County Superior Court for
fraudulent schemes and artifices, a class 2 felony (Count 1);
six counts of theft of a credit card or obtaining a credit
card by fraudulent means, class 5 felonies (Counts 2-4, 6-8);
and aggravated taking of the identify of another, a class 3
felony (Count 5). A jury found Petitioner guilty of all
counts except Count 2, on which the court declared a
mistrial. Id. at 1-2. Petitioner was sentenced to
twenty years in prison on Count 1, six years on Counts 3, 4,
and 6-8, and fifteen years on Count 5, with the sentences on
Counts 1 and 5 to run concurrently with the sentences for the
other counts and the sentences on Counts 3-4 and 6-8 to run
consecutively to one another.
asserts six grounds for relief: (1) the trial court erred by
denying Petitioner's motion for acquittal based on
insufficient evidence on Count 1; (2) the indictment was
defective and duplicitous; (3) Petitioner's Fifth
Amendment due process rights were violated as to Counts 1, 2,
and 8; (4) a “lack of subject matter
jurisdiction” existed for the state court's
application of procedural rules governing special action
proceedings; (5) ineffective trial and appellate counsel; and
(6) Petitioner's right to a fair trial was violated
because one of a juror's bias. Docs. 15 at 4; 1.
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). 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); see also 28 U.S.C. § 636(b)(1).
filed two objections to the R&R. He objects to Judge
Bade's findings that his petition was untimely filed and
that he failed to fairly present his federal claims in state
court and exhaust his state remedies. Doc. 16 at 2, 6.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes a one-year deadline for filing
an initial habeas petition, running from “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d). The one-year
limitation is statutorily tolled during the time that a
“properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending.” 28 U.S.C. §
2244(d)(2). Post-conviction review is “pending” -
tolling the state of limitations - while a prisoner pursues
post-conviction relief in state court. Carey v.
Saffold, 536 U.S. 214, 219-21 (2002). But an untimely
state petition is not “properly filed” pursuant
to § 2244(d)(2) and does not toll the statute of
limitations. Pace v. DiGuglielmo, 544 U.S. 408, 410
(2005); Thorson v. Palmer, 479 F.3d 643, 645 (9th
petitioner bears the burden of showing that equitable tolling
is appropriate, and to do so must show “(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.”
Raspberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir.
2006) (quoting Pace, 544 U.S. at 418).
was sentenced on May 9, 2012. Doc. 15 at 2. He filed a direct
appeal in the Arizona Court of Appeals, which was denied. He
then obtained an extension to October 1, 2013 to file a
petition for review in the Arizona Supreme Court. Doc. 13,
Exs. B, E, V. On October 3, 2013, the Arizona Supreme Court
denied a motion for another extension of time and dismissed
the matter. Doc. 13, Ex. V. Because Petitioner did not file a
petition for review by the deadline, his convictions became
final under 28 U.S.C. § 2244(d)(1)(A) on October 1,
2013, “when his time for seeking review with the
State's highest court expired.” See Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012). The AEDPA's
one-year deadline therefore began to run the next day,
October 2, 2013, and expired one year later unless tolling
R&R found that post-conviction proceedings were no longer
pending as of July 1, 2016, or at the latest, August 24,
2016. Doc. 15 at 7-9 (citing Ariz. R. Crim P. 32.9(c)).
Accounting for statutory tolling during those proceedings,
the R&R found that the statute of limitations deadline
for Petitioner to file his § 2254 petition in this Court
expired on August 3, 2017, more than six months before
Petitioner filed on February 14, 2018. Id. at 9. The
R&R also addressed a second untimely and successive
petition for post-conviction relief that Petitioner filed in