United States District Court, D. Arizona
Honorable Rosemary Marquez United States District Judge
August 27, 2019, Magistrate Judge D. Thomas Ferraro issued a
Report and Recommendation (“R&R”) (Doc. 25)
recommending that this Court dismiss Petitioner Manuel
Leon-Sanchez's Amended Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 6). Petitioner
Leon-Sanchez filed an Objection to the R&R (Doc. 26), and
the Government responded to the Objection (Doc. 27). For the
following reasons, Petitioner's Objection will be
overruled and the R&R will be adopted with respect to its
findings on the untimeliness of the § 2254 Petition.
Standard of Review
district judge “may accept, reject, or modify, in whole
or in part, ” a magistrate judge's proposed
findings and recommendations. 28 U.S.C. § 636(b)(1). The
district judge must “make a de novo determination of
those portions” of a magistrate judge's
“report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The advisory committee's notes to Rule
72(b) of the Federal Rules of Civil Procedure state that,
“[w]hen no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation” of
a magistrate judge. Fed.R.Civ.P. 72(b) advisory
committee's note to 1983 addition. See also Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)
(“If no objection or only partial objection is made,
the district court judge reviews those unobjected portions
for clear error.”); Prior v. Ryan, CV
10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18,
2012) (reviewing for clear error unobjected-to portions of
Report and Recommendation).
13, 2002, Petitioner was indicted for the rape of a
21-month-old child. (Doc. 16 at 12-13, 35.) After a trial by
jury, Petitioner was convicted of four felony counts: (1)
sexual conduct with a minor, (2) sexual assault, (3)
aggravated assault causing serious physical injury, and (4)
kidnapping. (Id. at 35.) The verdict included a
specific finding that the victim was less than 12 years old.
(Doc. 21 at 6.) Pursuant to A.R.S. § 13-604.01
(sentencing for dangerous crimes against children,
“DCAC”), Petitioner was sentenced to consecutive
terms of life imprisonment with no possibility of parole for
35 years on Counts (1) and (2), and 24 years each on Counts
(3) and (4). (Doc. 16 at 35.) All sentences were to run
consecutively. (Id. at 35.) On April 20, 2004, the
Arizona Court of Appeals affirmed Petitioner's four
convictions but modified the sentences for Counts (1) and (2)
to run concurrently rather than consecutively. (Id.
at 9-10.) Petitioner was re-sentenced on August 9, 2005.
(Doc. 21 at 7.)
filed three Notices of Post-Conviction Relief
(“PCR”), but only the third was accompanied by a
corresponding Petition. The first Notice-which was stayed
until the completion of Petitioner's direct appeal-was
filed on March 27, 2003 (Doc. 16 at 65), the second on
September 14, 2004 (id. at 68), and the third on
June 15, 2015 (id.at 25). With respect to the first
Notice, Petitioner's court-appointed PCR counsel filed a
Notice of Review stating that “no issues of
merit” existed. (Doc. 17 at 3-4.) The Court granted
Petitioner thirty days to file a pro se petition, but he
never did so. (Doc. 16 at 68.) In his third, untimely PCR,
Petitioner raised eight grounds for relief. (Doc. 18 at
30-31.) The State responded. (Doc. 21 at 3-26.) On November
24, 2015, the trial court rejected all of Petitioner's
claims for relief. (Doc. 16 at 73, 77-82.) The trial court
rejected Petitioner's first argument as untimely and
without merit. (Id. at 79.) It rejected
Petitioner's remaining arguments as precluded and/or
untimely. (Id. at 73, 79-82.)
Court of Appeals granted review but denied relief. (Doc. 16
at 72-75.) The Arizona Supreme Court denied review on April
19, 2017. (Doc. 21 at 44.)
The Amended Petition
filed his original Petition for Habeas Corpus pursuant to 28
U.S.C. § 2254 on April 20, 2018 (Doc. 1), and he filed
an Amended Petition (“Petition”) on May 1, 2018
(Doc. 6). The Petition raises eight grounds for relief. (Doc.
6.) Petitioner avers that his habeas Petition was timely
filed because the Arizona Supreme Court issued its ruling
denying review on his third PCR Petition on April 19, 2017.
(Id. at 11.) Therefore, he contends, the filing date
of April 18, 2018 is within the one-year limitations period.
(Id.) Petitioner alternatively argues that he is
entitled to equitable tolling of the limitations period
because (1) direct appeal counsel never gave him the complete
trial and exhibit record; (2) direct appeal counsel never
gave him the direct appeal record; (3) Petitioner has trouble
understanding legal jargon; (4) Petitioner lacks legal
knowledge; (5) Petitioner believed he was not entitled to any
further relief after filing the 2004 PCR Notice; (6) the
resentencing court “did not give . . . [Petitioner] 45
days in order to file his PCR petition in Propia
Persona;” (7) the court did not give Petitioner new
counsel to proceed with a PCR petition. (Id. at
61-62.) Petitioner further argues that Martinez v.
Ryan, 566 U.S. 1 (2012) supports the equitable tolling
of the limitations period. (Id. at 62-68.) . . . .
R&R recommends dismissing the Petition as untimely under
the Anti-Terrorism and Effective Death Penalty Act's
(“AEDPA”) one-year statute of limitations. (Doc.
25 at 5-9, 12.) The R&R finds that the one-year
limitations period expired on August 29, 2006, rendering the
Petition-filed in 2018-untimely by over a decade.
(Id. at 5.) The R&R rejects Petitioner's
argument that the limitations period did not begun to run
until the Supreme Court denied review of the trial
court's ruling on Petitioner's 2015 PCR.
(Id. at 5-6.) The R&R further finds that
equitable tolling does not apply and rejects Petitioner's
arguments that his failure to comply with the statute of
limitations should be excused. (Id. at 6-8).
R&R finds, in the alternative, that all but one of the
grounds for relief alleged in the § 2254 Petition are
procedurally defaulted without excuse. (Id. at
9-10.) Specifically, the R&R finds that the claimed
alleged in grounds One, Two, and Four through Eight were not
properly exhausted in state court because Petitioner did not
raise them on direct appeal; that the claims are now
procedurally defaulted; and that Petitioner failed to show
cause and prejudice or a miscarriage of justice to excuse the
procedural default. (Id. at 10-12.) The R&R
finds that ground Three was properly exhausted but is
precluded from federal habeas review under the ...