United States District Court, D. Arizona
REPORT AND RECOMMENDATION
S. WILLETT UNITED STATES MAGISTRATE JUDGE
HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
before the Court is Chad Robert Lee Kitt's
(“Petitioner”) “First Amended “under
28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the
“First Amended Petition”) (Doc. 13). For the
reasons explained herein, the undersigned recommends that the
Court dismiss the First Amended Petition (Doc. 13) as
October 4, 2002, a Maricopa County Grand Jury indicted
Petitioner on (i) eight counts of sexual conduct with a
minor, class 2 felonies and dangerous crimes against children
and (ii) three counts of sexual exploitation of a minor,
class 2 felonies and dangerous crimes against children.
(Bates Nos. 1-6). On December 16, 2002, Petitioner entered
into a plea agreement in which Petitioner pled guilty to two
counts of molestation of a child and two counts of attempted
sexual conduct with a minor. (Bates Nos. 15-18). The trial
court accepted Petitioner's guilty pleas. (Bates Nos.
19-20). On February 7, 2003, the trial court sentenced
Petitioner to a total of forty years in prison, followed by
lifetime probation. (Bates Nos. 21-25).
23, 2017, Petitioner filed a Notice of Post-Conviction Relief
(“PCR”).(Bates Nos. 28-30). The trial court
dismissed the PCR Notice as untimely. (Bates Nos. 31-33).
Petitioner filed a Petition for Review in the Arizona Court
of Appeals, which granted review, but denied relief. (Bates
Nos. 34-46). Petitioner did not seek further review by the
Arizona Supreme Court. (Bates No. 47).
March 2019, Petitioner initiated this federal habeas
proceeding. (Doc. 1). The Court allowed Petitioner to file
the First Amended Petition (Doc. 13). Respondents filed a
Limited Answer on July 26, 2019 (Doc. 15). Petitioner has
filed a Reply (Doc. 16).
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 exercise of
28 U.S.C. § 2244(d)(1); see also Hemmerle v.
Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The
one-year limitations period, however, does not necessarily
run for 365 consecutive days as it is subject to tolling.
Under AEDPA's statutory tolling provision, the
limitations period is tolled during the “time during
which a properly filed application for State post-conviction
relief or other collateral review with respect to the
pertinent judgment or claim is pending.” 28 U.S.C.
§ 2244(d)(2) (emphasis added); Roy v. Lampert,
465 F.3d 964, 968 (9th Cir. 2006) (limitations period ...