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Leon-Sanchez v. Attorney General of the State

United States District Court, D. Arizona

October 31, 2019

Manuel Leon-Sanchez, Petitioner,
Attorney General of the State of Arizona, et al., Respondents.


          Honorable Rosemary Marquez United States District Judge

         On 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.

         I. Standard of Review

         A 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).

         II. Background

         A. Procedural Background

         On June 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.)

         Petitioner 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 ( 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.)

         The 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.)

         B. The Amended Petition

         Plaintiff 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.[1] (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.) . . . .

         C. The R&R

         The 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).

         The 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 ...

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