Opinion
No. CV04-1871-PHX-SRB.
June 7, 2006
ORDER
Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28. U.S.C. § 2254 on September 8, 2004. Petitioner asserts eight grounds for relief, including that his plea was involuntary, ineffective assistance of trial and post-conviction relief counsel, denial of equal protection, cruel and unusual punishment, prosecutorial misconduct, and denial of the right to appeal. Respondents answered on May 26, 2005 and Petitioner filed a reply on June 3, 2005. Respondents claim that the petition was untimely filed beyond the one-year statute of limitations applicable for Petitions for Writ of Habeas Corpus in 28 U.S.C. § 2244(d).
On April 28, 2006, the Magistrate Judge issued his Report and Recommendation recommending that the petition be dismissed because it was filed after the expiration of the one-year statute of limitations. The procedural background and a detailed analysis of the running and tolling of the statute of limitations is set out in the Report and Recommendation. The Magistrate Judge concluded that Petitioner had until October 12, 1998, within which to file his Petition for Writ of Habeas Corpus and therefore, this petition was filed nearly six years after the expiration of the statute of limitations. Petitioner filed his objections to the Report and Recommendation on May 10, 2006. The objections deal with both the issue of timeliness and the merits of the claims raised in the petition. Petitioner argues that his claim of timeliness should be of "first impression" and appears to argue that because his conviction, sentence and plea agreements should be considered null and void that somehow he should not be subject to the one-year statute of limitations. Petitioner also appears to argue that the Magistrate Judge erred in concluding that delays in the adjudication of his state petitions for post-conviction relief should have a bearing on the running of the statute of limitations on the grounds that he could not file a writ with an incomplete record. Finally, he argues that he would not have had to file the instant Petition for Writ of Habeas Corpus if the Arizona Superior Court had granted him relief. None of the arguments raised by the Petitioner in his objections to the Report and Recommendation demonstrate in any way that his petition was timely or that he is entitled to equitable tolling.
The Court has reviewed the procedural record in this case and the analysis of that record and the Report and Recommendation. The Court finds itself in agreement with the Report and Recommendation of the Magistrate Judge and concludes that the petition must be dismissed with prejudice because it is untimely. Therefore;
IT IS ORDERED overruling Petitioner's objections to the Report and Recommendation.
IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is dismissed with prejudice and that the Clerk enter judgment accordingly.