United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
before the Court is John Joseph Byrne's
(“Petitioner”) “Petition under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus” (the
“Petition”) (Doc. 1). Also pending is
Petitioner's “Motion to Concede the Habeas Corpus
§ 2254” (Doc. 26), which requests that the Court
dismiss the Petition without prejudice. For the reasons set
forth herein, the undersigned recommends that the Petition be
dismissed with prejudice.
February 3, 2009, a jury sitting in the Superior Court of
Arizona in and for Maricopa County found Petitioner guilty of
(i) one count of molestation of a child; (ii) one count of
sexual conduct with a minor; (iii) one count of sexual abuse;
and (iv) four counts of sexual conduct with a minor. (Doc. 14
at 3-7). On March 20, 2009, the trial court sentenced
Petitioner to a total of thirty years in prison.
(Id. at 9-14).
August 12, 2010, the Arizona Court of Appeals affirmed
Petitioner's convictions and sentences. (Id. at
35-50). Petitioner did not seek further review by the Arizona
Supreme Court. (Id. at 52).
October 3, 2016, Petitioner filed a Petition for
Post-Conviction Relief (“PCR”), which the trial
court deemed a PCR Notice. (Id. at 55-63, 67). The
trial court dismissed the PCR proceeding as untimely.
(Id. at 65-67). The Arizona Court of Appeals granted
review, but denied relief. (Doc. 15 at 3-4). The Arizona
Supreme Court denied Petitioner's Petition for Review and
dismissed Petitioner's subsequent Motion for
Reconsideration. (Id. at 17, 35).
August 1, 2018, Petitioner initiated this action seeking
federal habeas relief. (Doc. 1). The Court ordered
Respondents to answer the Petition (Doc. 1). (Doc. 8). On May
22, 2019, Respondents filed their Limited Answer (Doc. 13).
Instead of filing a Reply, Petitioner filed a “Motion
to Concede the Habeas Corpus § 2254” (Doc. 26)
that requests the Court to dismiss this matter without
prejudice. Respondents have not responded to the Motion.
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 110 Stat. 1214, a state prisoner must
file his or her federal habeas petition within one year of
the latest of:
A. The date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
B. The date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the petitioner was
prevented from filing by the State action;
C. The date on which the right asserted was initially
recognized by the United States Supreme Court, if that right
was newly recognized by the Court and made retroactively
applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim
presented could have been discovered through the ...