Renner v. Arizona, State of ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicholas Alexander Renner, No. CV-20-00277-PHX-DLR(ESW) 10 Petitioner, ORDER 11 v. 12 Stephen Morris, et al., 13 Respondents. 14 15 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Eileen S. Willett (Doc. 15) regarding Petitioner’s Petition for Writ of Habeas Corpus filed 18 pursuant to 28 U.S.C. § 2254 (Doc. 5). The R&R recommends that the Petition be denied 19 and dismissed with prejudice and that a Certificate of Appealability and leave to proceed 20 in forma pauperis on appeal be denied. The Magistrate Judge advised the parties that they 21 had fourteen days from the date of service of a copy of the R&R to file specific written 22 objections with the Court. (Doc. 15 at 8-9.) Petitioner filed objections to the R&R on 23 September 14, 2020 (Doc. 16) and Respondents filed their Reply to Objections on 24 September 15, 2020. (Doc. 17.) The Court has considered Petitioner’s objections and 25 reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The Court 26 finds that the Magistrate Judge correctly determined that the Petition is untimely because 27 it was filed more than a year after Petitioner’s judgment became final. 28 The statute of limitations for filing a habeas petition under the Antiterrorism and 1 Effective Death Penalty Act of 1996 (“AEDPA”) is one year. The R&R correctly 2 determined that Petitioner’s judgment became final on July 1, 2013 and the statute of 3 limitations began running on July 2, 2013. 4 The R&R correctly explained that the one-year statute of limitations does not 5 necessarily run for 365 consecutive days, but is subject to tolling during pending, properly 6 filed collateral review petitions, such as a petition for post-conviction relief (“PCR”). A 7 PCR is pending when the notice of the PCR is filed with the court. It remains pending until 8 it has been fully resolved in the state court process. 9 The R&R correctly found that the period from July 2, 2013, until Petitioner filed his 10 PCR notice on October 23, 2013, is time in which no properly filed collateral review was 11 pending. Therefore, no tolling of the statute of limitations occurred during that time. The 12 R&R correctly calculated that time to be 114 days, leaving 251 days remaining in which 13 to file a federal habeas petition. The limitations period was tolled from the time Petitioner 14 filed his PCR until his PCR proceedings terminated. His PCR proceedings terminated on 15 March 13, 2019, the date that the Arizona Supreme Court issued it order denying review. 16 When the statute of limitations clock re-started on March 14, 2019, Petitioner had 251 days 17 remaining in which he could timely file a federal habeas petition. He therefore had until 18 November 19, 2019, to file his habeas petition. Petitioner initiated his habeas proceedings 19 on February 5, 2020, two and a half months past the expiration of the one-year limitations 20 period. The R&R correctly found that the Petition was untimely filed. 21 Petitioner disagrees with the R&R’s determination that no statutory tolling occurred 22 between the time his conviction became final and the time he filed his PCR. However, the 23 R&R followed well-established law and precedent. See 28 U.S.C. § 2244(D)(2); Isley v. 24 Arizona Dep’t of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004); Cross v. Sisto, 676 F.3d 1172, 25 1179 (9th Cir. 2012); Porter v. Ollision, 620 F.3d 952, 958 (9th Cir. 2010). Petitioner’s 26 objection is without factual or legal support. 27 Petitioner’s second objection is that he is factually innocent and should be granted 28 a Certificate of Appealability. However, Petitioner has not presented evidence supporting this claim. Petitioner has the burden of persuading the Court “that, in light of the new 2|| evidence, no juror, acting reasonably, would have voted to find him guilty beyond a || reasonable doubt.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Having presented 4|| no evidence of actual innocence, Petitioner’s objection must be overruled. 5 IT IS ORDERED that Petitioner’s objections to the R&R (Doc. 16) are 6|| OVERRULED. The R&R (Doc.15) is ACCEPTED. Petitioner’s Petition for Writ of || Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 5) is DISMISSED with prejudice. || A Certificate of Appealability and leave to proceed in forma pauperis on appeal are || DENIED because the dismissal of the Petition is justified by a plain procedural bar and || jurists of reason would not find the procedural ruling debatable, and Petitioner has not |} made a substantial showing of the denial of a constitutional right. The Clerk of the Court || shall enter judgment accordingly and terminate this action. 13 Dated this 25th day of February, 2021. 14 15 16 {Z, 18 Uatted States Dictric Judge 19 20 21 22 23 24 25 26 27 28 -3-