Moore v. Ryan

          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, ...