Holland v. Ryan

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge

         TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:

         Petitioner James Robert Holland has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. Summary of Conclusion.

         Petitioner was sentenced on October 2, 2014, and his sentence was final 90 days later because he did not pursue post-conviction relief until 2018. The instant Petition was due January 1, 2016 but was not filed until December 6, 2018. Petitioner's claim is untimely. Petitioner presents no extraordinary circumstances to justify equitable tolling. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         a. Facts and Trial Procedural History.

         On August 21, 2014, Petitioner pleaded guilty to felony offenses in two separate cases. (Doc. 11-1, Exs. F, G, at 42-46.) On October 2, 2014, Petitioner was sentenced in both cases. (Doc. 11-1, Ex. H at 27; Doc. 11-2, Ex. I, at 1.) The Court summarized the conviction history:

In Maricopa County Superior Court, case #CR2013-432246, Petitioner was convicted of one count of sexual exploitation of a minor and two counts of attempted sexual exploitation of a minor. He was sentenced to a 10-year term of imprisonment, followed by lifetime probation. In Maricopa County Superior Court, case #CR2013-103231, Petitioner was convicted of second-degree burglary. He was sentenced to an 8-year term of imprisonment, to be served after his sentence in CR2013-432246. In his Petition, Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney General as an Additional Respondent.

(Doc. 6 at 1-2.)

         b. Petitioner's State Post Conviction Relief Proceedings.

         On May 29, 2018, Petitioner filed a post-conviction relief (“PCR”) notice. (Doc. 11-2, Ex. J, at 8.) On June 11, 2018, the Maricopa County Superior Court found that Petitioner's PCR claims were “untimely by more than three years, ” and that Petitioner failed to provide reasons for the untimeliness. (Doc. 11-2, Ex. K, at 13.) The Superior Court dismissed the Petition. (Id. at 14.)

         On June 20, 2018, Petitioner filed a Petition for Review with the Arizona Court of Appeals. (Doc. 11-2, Ex. L, at 15.) On October 30, 2018, the Arizona Court of Appeals denied relief finding no abuse of discretion in the prior proceeding. (Doc. 11-12, Ex. M at 23.) On December 14, 2018, the mandate issued. (Doc. 11-2, Ex. N, at 25.)

         c. Petitioner's ...