Opinion
No. CV-07-1712-PHX-DGC (MEA).
February 11, 2008
ORDER
Pending before the Court are a pro se petition for a writ of habeas corpus filed by Omar Hernandez, a state prisoner, and a Report and Recommendation ("R R") issued by United States Magistrate Judge Mark E. Aspey. Dkt. ##1, 12. The R R recommends the petition be denied as untimely. Dkt. #12. For the reasons set forth below, the Court will refer the case back to Judge Aspey for further consideration.
I. The R R and the Objection.
As stated in the R R, a state prisoner has one year to file a federal habeas corpus petition after his or her state conviction is final. Dkt. #12 (citing 28 U.S.C. § 2244(d)(1)(A)). Following the Arizona Court of Appeals' affirmation of Petitioner's conviction and sentence on February 26, 2004, and the expiration of Petitioner's thirty-day period to appeal to the Arizona Supreme Court, Petitioner's state conviction became final on March 27, 2004. Id. The one-year statute of limitations to file a petition for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act ("AEDPA") began to run on March 28, 2004. Id. Petitioner therefore had until March 28, 2005 to file a federal petition for a writ of habeas corpus. Id.
Given the benefit of the doubt, Petitioner filed his first notice of post-conviction relief on October 8, 2004. Id.; see State v. Hernandez, No. CR 2002-002863 (Ariz. Super. Ct. Oct. 8, 2004). As of that date, 194 days of the limitations period had expired and 171 days remained. See Dkt. #12 . . . The filing of a state action for post-conviction relief tolls the statute of limitations for federal habeas relief. Id. Accordingly, the running of the statute of limitations was tolled from October 8, 2004 to January 5, 2005, when the state trial court dismissed Petitioner's request for post-conviction relief. Id. The statute of limitations was further tolled until February 4, 2005, when Petitioner's thirty-day period to appeal expired. Id. The statute of limitations began to run again on February 5, 2005, and expired 171 days later on July 25, 2005. Id.
The R R concluded the statute of limitations ran until February 4, 2006, but given the time that ran before Petitioner filed his state action for post-conviction relief, Petitioner's 365 days expired on July 25, 2005.
Petitioner filed additional state actions for post-conviction relief, but all were dismissed as untimely. Id. Untimely actions do not further toll the statute of limitations. Id. Thus, these actions for post-conviction relief did not change the July 25, 2005 expiration of the statute of limitations under the AEDPA. Id.
On August 30, 2007, more than two years after the statute of limitations had expired, Petitioner filed the present federal petition. Id. Petitioner asserts he is entitled to equitable tolling of the statute of limitations because his inability to write or speak English prevented him from pursuing claims in state court. Id. Judge Aspey held that Petitioner is not entitled to equitable tolling under the Supreme Court's recent holding in Bowles v. Russell, 127 S. Ct. 2360 (2007).
A party may file specific, written objections to an R R within ten days after being served with a copy of the R R. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court must undertake a de novo review of those portions of the R R to which specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). On December 27, 2007, Petitioner filed an objection to the R R conceding that he has not met the time requirements for a federal habeas petition, but asking the Court in the interest of justice to review his case and consider his claims. Dkt. #13 at 2-5.
II. Discussion.
Petitioner essentially asks the Court to equitably toll the statute of limitations. The R R concluded that the doctrine of equitable tolling was no longer applicable under AEDPA in light of the Bowles decision. In Bowles, the Supreme Court held that the time limit for filing a notice of appeal is a jurisdictional requirement and not subject to equitable tolling. Bowles, 127 S. Ct. at 2366. At least one court of appeals has held, however, that Bowles does not apply to the AEDPA. Diaz v. Kelly, No. 01-2687-PR, 2008 WL 199846, at *3 (2nd Cir. Jan. 25, 2008). This recent decision was not available to Judge Aspey when he prepared the R R.
This Court finds the reasoning in Diaz persuasive. The Court accordingly will return this matter to Judge Aspey to consider whether equitable tolling is available on the facts of this case.
IT IS ORDERED:
1. The R R (Dkt. #12) is rejected to the extent set forth in this order.
2. The case is referred to Magistrate Judge Aspey for further proceedings.