Ochoa v. Ontiveros

Full title: Juan Daniel Ochoa, Petitioner, v. John Ontiveros, et al., Respondents

Court: United States District Court, D. Arizona

Date published: Jul 5, 2006

No. CIV 05-3787-PHX-DGC (DKD) (D. Ariz. Jul. 5, 2006)

Opinion

No. CIV 05-3787-PHX-DGC (DKD).

July 5, 2006

REPORT AND RECOMMENDATION

DAVID DUNCAN, Magistrate Judge

TO THE HONORABLE DAVID G. CAMPBELL, U.S. DISTRICT JUDGE:

Juan Daniel Ochoa filed a petition for writ of habeas corpus on November 21, 2005, challenging his convictions for attempted first degree murder, aggravated assault, armed robbery, conspiracy to commit first degree murder, and kidnaping, and the trial court's imposition of concurrent terms of life imprisonment (Doc. #20, Exh A). Ochoa raises 11 grounds in his petition. Respondents contend that his petition is untimely. For the reasons stated below, the Court recommends that Respondents be required to file an Answer to Ochoa's Petition, addressing the merits.

Following his direct appeal, in which the court of appeals affirmed his convictions and sentences ( Id., Exh A, March 18, 1997 memorandum decision), Ochoa filed a petition for review with the Arizona Supreme Court, which was denied on July 18, 1997 ( Id., Exh D, E). Ochoa apparently filed an initial Petition for Post Conviction Relief in 1996.¹ On October 8, 2000, Ochoa filed a petition for post-conviction relief; counsel was appointed, and the trial court eventually dismissed the petition for failure to state a colorable claim ( Id., Exh F). Review was denied by the court of appeals on May 12, 2004 ( Id., Exh G, H), and by the supreme court on November 23, 2004 ( Id., Exh I). Ochoa filed this petition on November 21, 2005.

1 In his Supplement to Petition filed November 22, 2005, Ochoa attaches an unsigned but stamped copy of a Yuma County Superior Court Order filed in 2000, which states in relevant part: "This petition for Post Conviction Relief is deemed by the Court to be defendant's first Petition for Post Conviction Relief, the earlier 1996 Petition having been filed, but never resolved." It is unclear from the record why it was never resolved. However, Ochoa has attached correspondence from his previous counsel which references counsel's disability status with the Arizona State Bar.

Ochoa was required to file his federal petition within one year from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). His judgment of conviction became final on October 16, 1997, 90 days after the Arizona Supreme Court denied review, the time period during which he could have sought certiorari to the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1159 (9^th Cir. 1999); Rule 13.1, Rules of the Supreme Court. Therefore, he had until October 15, 1998 to file his federal petition.

However, the limitations period is tolled during the time a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment is pending. See 28 U.S.C. § 2244(d)(2). Ochoa's post-conviction petition, apparently filed in 1996, was "pending" within the meaning of the statute until the supreme court denied review on November 23, 2004. His petition, filed November 21, 2005, is therefore timely.

IT IS THEREFORE RECOMMENDED that Respondents be required to file an Answer to Ochoa's petition, addressing the merits.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.