United States District Court, D. Arizona
Wayne B. Bearden, Jr., Petitioner,
v.
Carla Hacker-Agnew, et al., Respondents.
ORDER
James
A. Teilborg, Senior United States District Judge
On
August 2, 2018, Petitioner Wayne Bearden
(“Petitioner”) filed a Petition for Writ of
Habeas Corpus (“Petition”). (Doc. 1). On July 17,
2019, the Magistrate Judge issued a Report and Recommendation
(“R&R”) recommending that the Petition be
denied and dismissed because it is barred by the
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”)'s statute of limitations. (Doc.
12). The R&R further recommended that a Certificate of
Appealability be denied. (Id. at 9). This Court
extended Petitioner's time to file objections to the
R&R until September 6, 2019. (Doc. 14). Having not
received any timely objections from Petitioner, the Court
adopted the Magistrate Judge's R&R and dismissed the
Petition with prejudice on September 20, 2019. (Doc. 15). On
September 27, 2019, however, the Court unexpectedly received
objections to the R&R from Petitioner-dated September 2,
2019 (four days before the September 6 deadline). (Doc. 17).
The sudden surfacing of Petitioner's objections, exactly
one week after this Court formally adopted the Magistrate
Judge's R&R (yet over a month since the Magistrate
Judge first issued it), suggests that the objections were not
timely filed but instead submitted in response to this Court
adopting the R&R. Nonetheless, without any clear evidence
of back dating, this Court has no basis to challenge the date
that Petitioner alleges to have submitted his objections-even
if that means assuming prison officials refused to deliver
the objections to the Court for nearly four weeks. So,
because “[u]nder the ‘mailbox rule,' a pro se
prisoner's filing of a state habeas petition is deemed
filed at the moment the prisoner delivers it to prison
authorities for forwarding to the clerk of the court, ”
this Court must reluctantly accept Petitioner's
objections as timely filed on September 2, 2019. See
Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir.
2003). Accordingly, pursuant to Federal Rule of Civil
Procedure 60(b), this Court must vacate its prior judgment
dismissing the Petition with prejudice and evaluate
Petitioner's objections.
I.
REVIEW OF AN R&R
This
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). It is “clear
that the 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) (emphasis in original). 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) (“[T]he court
shall make a de novo determination of those portions of the
[report and recommendation] to which objection is
made.”). As discussed above, Petitioner filed
objections to the R&R, (Doc. 17), and the Court will
review those objections de novo.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In
January 2016, the Maricopa County Superior Court entered
judgment convicting Petitioner of assisting a criminal street
gang, sale or transfer or offer to sale or transfer narcotic
drugs, possession of narcotic drugs, sale or transportation
of marijuana, possession of marijuana for sale, and
misconduct involving a weapon. (Doc. 1 at 1-2). Per the plea
agreement, the trial court sentenced Petitioner to twelve
years in prison along with fines and community service.
(Id. at 2). On February 16, 2017, the trial court
dismissed Petitioner's petition for post-conviction
relief. (Id. at 16). On October 17, 2017, the
Arizona Court of Appeals denied Petitioner's motion for
review because Petitioner failed to file it within thirty
days of the trial court's dismissal. (Id. at
16). On August 2, 2018, Petitioner initiated this federal
habeas proceeding. (Id. at 1). The Court required
Respondents to answer the Petition. (Doc. 7). Respondents
filed their Answer on February 6, 2019, claiming that the
Petition is barred by AEDPA's statute of limitations.
(Doc. 10). Petitioner filed a Reply on February 22, 2019.
(Doc. 11). A Magistrate Judge issued an R&R to the Court
on July 17, 2019, recommending that the Court deny the
Petition with prejudice because AEDPA's statute of
limitations had expired on March 23, 2018 (one year after
Petitioner's deadline to file a petition for review in
the Arizona Court of Appeals). (Doc. 12). This Court extended
Petitioner's time to file objections to the R&R until
September 6, 2019 (Doc. 14) and, accordingly, will review
Petitioner's objections (Doc. 17), dated September 2,
2019.
III.
R&R
The
R&R recommends that the Petition be denied as barred by
the AEDPA's statute of limitations. (Doc. 12 at 3-8).
As
explained by the Magistrate Judge, the AEDPA, 28 U.S.C.
§ 2244(d), provides a one-year statute of limitations
for state prisoners to file a petition for writ of habeas
corpus in federal court. (Id. at 2). The Magistrate
Judge determined that, according to 28 U.S.C. §
2244(d)(1)(A), Petitioner's one-year period began on
March 24, 2017: the day after his deadline to file a petition
for review in the Arizona Court of Appeals. (Id. at
3- 5). She thus found that Petitioner's one-year period
expired on March 23, 2018, rendering his Petition untimely
because he did not file it until August 2, 2018.
(Id. at 5-6). Furthermore, she concluded that
statutory tolling could not extend the filing period because
“Petitioner did not file a PCR proceeding following
dismissal of his of-right PCR proceeding.”
(Id. at 6). She also rejected equitable tolling
because Petitioner failed to meet his burden of showing that
“extraordinary circumstances” precluded him from
filing the Petition on time. (Id.). Finally, the
Magistrate Judge declined to excuse Petitioner's late
filing based on the “actual innocence gateway”
because he had not raised “new reliable evidence”
that, when taken by a reasonable juror, would exculpate him
of the crimes alleged. (Id. at 7). For these
reasons, the Magistrate Judge recommended that this Court
dismiss the Petition. (Id. at 8).
IV.
PETITIONER'S OBJECTIONS
Petitioner
objects to the Magistrate Judge's R&R-but not on any
of the grounds actually raised in it. (Compare Doc.
17, with Doc. 12). Rather, Petitioner raises three
unrelated challenges, claiming that: (1) the prosecution
failed to provide the trial court with facts establishing
subject matter jurisdiction; (2) the prosecutors violated
their oath of office and Petitioner's due process rights
by failing to prove subject matter jurisdiction; and (3) the
prosecution relied on “unconstitutional” statutes
that lacked “jurisdictional identity and constitutional
authority.” (Doc. 17 at 4-9). Because Petitioner does
not even attempt to refute the Magistrate Judge's central
finding that the statute of limitations bars his Petition
altogether, this Court will accept that finding as correct.
See 28 U.S.C. § 636(b)(1)(C) (“A judge of
the court shall make a de novo determination [only] of those
portions of the report or specified findings or
recommendations to which objection is made.”);
Thomas, 474 U.S. at 149 (holding that district
courts do not have to review any issue in a magistrate's
recommendation “that is not the subject of an
objection”). So, accepting-as the Magistrate Judge
found-that the statute of limitations procedurally bars the
Petition, this Court will refrain from reviewing the
Petition's substantive claims. See 28 U.S.C.
§ 2244(d)(1).
Moreover,
potential “equitable exceptions” to the
AEDPA's statute of limitations-“such as when a
petitioner demonstrates diligence and extraordinary
circumstances, or actual innocence”-cannot provide
Petitioner relief because those exceptions do not include
“the state court's alleged lack of subject matter
jurisdiction.” Tucker v. Ryan, No.
CV-13-00577-PHX-JAT, 2014 WL 1329293, at *5 (D. Ariz. 2014)
(citing Lee v. Lampart, 653 F.3d 929, 933-34 (9th
Cir. 2011)). Hence, this Court must accept, once again, the
R&R's conclusion that the AEDPA's statute of
limitations bars the Petition.
V.
Conclusion
Based
on the foregoing, IT IS ORDERED that
pursuant to Federal Rule of Civil Procedure 60(b) the prior
Order (Doc. 15) and Judgment (Doc. 16) are vacated so the
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