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Lee Kitt v. Shinn

United States District Court, D. Arizona

November 21, 2019

Chad Robert Lee Kitt, Petitioner,
v.
David Shinn, et al., Respondents.

          REPORT AND RECOMMENDATION

          EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:

         Pending 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 untimely.

         I. BACKGROUND

         On 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).[1] 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).

         On June 23, 2017, Petitioner filed a Notice of Post-Conviction Relief (“PCR”).[2](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).

         In 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).

         II. LEGAL STANDARDS

         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, [3] 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 due diligence.

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 ...


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