United States District Court, D. Arizona
ORDER
G.
Murray Snow Chief United States District Judge
Pending
before the Court are Petitioner Lester Bernard Moore
(“Petitioner”)'s Amended Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 8) and
United States Magistrate Judge Eileen S. Willett's Report
and Recommendation (“R&R”), which recommends
that the Court deny the Petition (Doc. 18). Petitioner timely
filed objections to the R&R. (Doc. 21.) The Court denies
the Petition and adopts the R&R.
BACKGROUND
Because
no party has objected to the procedural background set forth
in the R&R, the Court adopts the background as set forth
therein:
In May 2015, a jury sitting in the Superior Court of Arizona
in and for Maricopa County found Petitioner guilty of
kidnapping, aggravated assault, burglary in the first degree,
and sexual assault. (Doc. 16-1 at 72-76). The trial court
sentenced Petitioner to a total of twenty years in prison.
(Doc. 16-2 at 2-8). On January 5, 2017, the Arizona Court of
Appeals affirmed Petitioner's convictions and sentences.
(Doc. 16-4 at 2-13). Upon Petitioner's request, the
Arizona Supreme Court extended the deadline for Petitioner to
file a pro se petition for review. (Id. at 17).
Petitioner failed to file a petition for review by the March
9, 2017 extended deadline. On April 4, 2017, the Arizona
Supreme Court dismissed the matter. (Id. at 20). The
Arizona Court of Appeals issued its mandate on April 6, 2017.
(Doc. 8 at 182). On June 2, 2017, Petitioner filed a Notice
of Post-Conviction Relief (“PCR”). (Doc. 16-4 at
35-37). The trial court dismissed the PCR Notice on July 17,
2017, noting that it was untimely filed and failed to state a
claim for which relief can be granted in an untimely PCR
proceeding. (Id. at 39-41). Petitioner did not
request further review by the Arizona Court of Appeals. On
July 20, 2018, Petitioner initiated this federal habeas
proceeding. (Doc. 1).
(Doc. 18 at 1-2.)
DISCUSSION
I.
Standard of Review
A
“district judge may refer dispositive pretrial motions,
and petitions for writ of habeas corpus, to a magistrate, who
shall conduct appropriate proceedings and recommend
dispositions.” Thomas v. Arn, 474 U.S. 140,
141 (1985); see also 28 U.S.C. § 636(b)(1)(B);
Estate of Connors v. O'Connor, 6 F.3d 656, 658
(9th Cir. 1993). Any party “may serve and file written
objections” to the R&R. 28 U.S.C. § 636(b)(1).
“A judge of the court shall make a de novo
determination of those portions of the report or specified
findings or recommendations to which objection is
made.” Id. District courts, however, are not
required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Arn, 474 U.S. at 149. A district judge “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).
II.
Analysis
Under
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d), a state
prisoner must file his or her federal habeas petition within
one year of the latest of four dates, subject to statutory
and equitable tolling. In this case, the only relevant date
is “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. §
2244(d)(1)(A).[1] Accordingly, the Magistrate Judge
recommends that Petitioner's petition be denied and
dismissed with prejudice because it was not timely filed and
neither statutory nor equitable tolling applies.
In his
Objection, Petitioner argues that when the Arizona Supreme
Court decided that Petitioner's time “to file a
petition for review of the Arizona Court of Appeals
Memorandum Decision had expired, and no such petition had
been filed, the one year AEDPA statute of limitations did not
start to run because three pathways for further review still
were open to Moore, ” including seeking “writ of
certiorari to the United States Supreme Court.” (Doc.
21 at 4-5.) Petitioner asserts that, per Supreme Court Rule
13, he had until June 7, 2017 to file for writ of certiorari,
[2] and
that until that time, the state court judgment was not final.
Petitioner then argues that because he filed a notice of
post-conviction relief (PCR) proceedings on June 2, 2017,
“there is no gap.” (Doc. 21 at 6.) Yet as the
Magistrate Judge noted, the United States Supreme Court dealt
with this issue in Gonzalez v. Thaler, 565 U.S. 134
(2012). In Gonzalez, the Court held that the text of
§ 2244(d)(1)(A) designating finality as “the
conclusion of direct review or the expiration of the time for
seeking such review, ”
consists of two prongs. Each prong-the ‘conclusion of
direct review' and the ‘expiration of the time for
seeking such review'-relates to a distinct category of
petitioners. For petitioners who pursue direct review all the
way to this Court, the judgment becomes final at the
‘conclusion of direct review'-when this Court
affirms a conviction on the merits or denies a petition for
certiorari. For all other petitioners, the judgment becomes
final at the ‘expiration of the time for seeking such
review'-when the time for pursuing direct review in this
Court, or in state court, expires.
565 U.S. at 150. Because Gonzalez did not appeal to the
State's highest court, the Court determined that
“his judgment became final when his time for seeking
review with the State's highest court expired, ”
and did not include the 90-day period for seeking certiorari
in its finality calculation. Id. at 154. Like the
petitioner in Gonzalez, Petitioner did not appeal to
the highest state court. The Arizona Court of Appeals
affirmed Petitioner's convictions and sentences on
January 5, 2017. The Arizona Supreme Court set March 9, 2017
as the deadline for filing a petition for review. When
Petitioner did not file by the deadline, ...