United States District Court, D. Arizona
ORDER
Honorable Cindy K. Jorgenson Judge
Pending
before the Court is Petitioner Aleister Turney's Petition
for Writ of Habeas Corpus (Doc. 1). Respondents filed a
Limited Answer (Docs. 13-15) and Petitioner a Reply (Doc.
17). On December 17, 2018, Magistrate Judge Lynnette C.
Kimmins issued a Report and Recommendation
(“R&R”) (Doc. 18) in which she recommended
the District Court dismiss with prejudice Petitioner's
Petition (Doc. 1) as time-barred. Petitioner has filed an
objection (Doc. 22) and Respondents a response to that
objection (Doc. 23). After its independent review, the Court
dismisses with prejudice Petitioner's
Petition for Writ of Habeas Corpus (Doc. 1) as time-barred.
1.
Standard of Review
This
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). Further, under
28 U.S.C. § 636(b)(1), if a party makes a timely
objection to a magistrate judge's recommendation, then
this Court is required to “make a de novo determination
of those portions of the [report and recommendation] to which
objection is made.” The statute does not “require
[] some lesser review by [this Court] when no objections are
filed.” Thomas v. Arn, 474 U.S. 140, 149-50
(1985). Rather, this Court is not required to conduct
“any review at all . . . of any issue that is not the
subject of an objection.” Id. at 149.
2.
Factual and Procedural Background
In
2012, Petitioner pled guilty to attempted sexual conduct with
a minor (Count I) and molestation of a child (Count II).
During Petitioner's plea colloquy, the court stated:
“The plea agreement explains as to Count II you'll
be in prison for ten years at the DOC. I assume that's
early release one for seven.” (Doc. 14, pg. 23). In
response, Petitioner's trial counsel stated, “Yes,
your Honor.” Id. Subsequently, Petitioner was
sentenced to ten years of imprisonment, with 212 days credit
for time served, commencing on October 29, 2012. At
Petitioner's sentencing hearing the court stated:
“As to Count II, it is the judgment of the Court that
you're guilty of Count II, molestation of a child, a
class 2 felony and dangerous crime against children in the
first degree. And it is ordered as a consequence the
stipulated term of 10 years in the Department of Corrections,
with presentence incarceration credit now of 212 days, with
the customary 85 percent, that's one for seven, as
calculated by the DOC.” (Doc. 14, pg. 44).
Despite
the sentencing court's statements, Petitioner's plea
agreement did not reflect any mention of the “customary
85 percent” raised by the court during Petitioner's
sentencing hearing. In December 2012, Petitioner filed a
Notice of Post-Conviction Relief (“PCR”) alleging
a claim of ineffective assistance of counsel. Petitioner was
assigned PCR counsel who reviewed Petitioner's trial file
and relevant transcripts. On September 18 2013,
Petitioner's PCR counsel stated that she could find no
colorable claims and requested that Petitioner be permitted
additional time to file a pro-se petition. That request was
granted, and Petitioner had until November 7, 2013 to file a
pro-se petition. Petitioner failed to file a pro-se petition
prior to the deadline and his PCR proceeding was dismissed on
November 21, 2013.
On June
26, 2014, Petitioner filed another PCR proceeding. However,
this time, Petitioner did not advance a claim of ineffective
assistance of counsel, but rather contended that there were
issues with his sentencing. The court summarily dismissed
that PCR proceeding because there was “no colorable
claim” and because it was untimely. (Doc. 15, pg. 55).
In June 2016, Petitioner filed a Motion for Clarification of
Sentence and Plea. (Doc. 14, pg. 53). In that Motion,
Petitioner claimed that an amended plea agreement should be
signed to reflect his eligibility for release at 85% of his
sentence. The Court denied Petitioner's Motion as
untimely. (Doc. 14, pg. 63). Petitioner then filed a Petition
for Special Action with the Arizona Court of Appeals alleging
that he had secured a plea for an 85% sentence, but the court
declined to accept jurisdiction. Petitioner then appealed to
the Arizona Supreme Court, which denied Petitioner's
Petition for Review. Petitioner then filed the pending Habeas
Petition in May 2017 claiming that the Department of
Corrections was refusing to acknowledge the trial judge's
order to release Petitioner after serving 85% of his
sentence. Petitioner also alleges that his plea of guilty was
not knowingly or voluntarily made.
3.
Discussion
The
R&R concludes that Petitioner's habeas petition is
time-barred because it violates the relevant statute of
limitations. On March 4, 2019, Petitioner filed a Response to
the pending R&R. (Doc. 22). The Court notes that although
Petitioner raises several objections in his Response, none
are direct objections to the pending R&R and are, rather,
attempts to relitigate the merits of his underlying case.
The
statute of limitations governing timely habeas petitions is
codified in 28 U.S.C. § 2244. More specifically, §
2244(d)(1)(A) provides: “A 1-year period of limitation
shall apply to an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State
court” and that the period shall run 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.” Petitioner was sentenced on October 29, 2012
and timely filed a post-conviction relief (“PCR”)
petition on December 11, 2012. That petition was dismissed on
November 22, 2013. Petitioner had thirty-five (35) days to
petition for review of that dismissal but neglected to do so.
The judgment then became final on December 27, 2013. Absent
tolling, the one-year limitations period expired on December
28, 2014. Petitioner filed his pending habeas petition in May
2017, far exceeding the December 2014 deadline.
However,
an untimely habeas petition is not prohibited if the statute
of limitations was properly tolled. The relevant statute
provides: “[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.” 28 U.S.C. § 2244(d)(2) (emphasis
added). It is well established that “untimely filed
state post-conviction petitions do not toll the one-year
statute of limitations for filing federal habeas
petitions.” Ruffin v. Helling, 207 Fed.Appx.
848, 850 (9th Cir. 2006). Therefore, despite this provision,
the relevant statute of limitations was not tolled in
Petitioner's case because, excluding his first PCR
petition, none of his subsequent PCR petitions were properly
filed and Petitioner's habeas petition is time-barred.
Although
the R&R also discusses Petitioner's argument that he
is entitled to equitable tolling, Petitioner neglects to
raise a specific objection to that portion of the R&R.
Furthermore, the R&R also discusses whether the statute
of limitations was tolled by Petitioner's possible
inability to discover the factual basis for his claim
pursuant to § 2244(d)(1)(D). However, Petitioner was
aware that the plea agreement did not include a provision
providing him with an 85% sentence as early as June 2014 when
he filed his second PCR petition. Notably, Petitioner
neglects to raise objections that his habeas petition was
timely filed, that § 2244(d)(2) tolling should ...