Byrne v. Shinn

          REPORT AND RECOMMENDATION

          HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:

         Pending 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.

         I. BACKGROUND

         On 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).

         On 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).

         On 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).

         On 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.

         II. LEGAL STANDARDS

         Under 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 ...