Celaya v. Stewart

Decision Date25 February 2010
Docket NumberNo. CV 01-622-TUC-DCB.,CV 01-622-TUC-DCB.
PartiesGina Gail CELAYA, Petitioner, v. Terry STEWART, et al., Respondents.
CourtU.S. District Court — District of Arizona

Walter B. Nash, III, William James Kirchner, Nash & Kirchner PC, Tucson, AZ, for Petitioner.

ORDER

DAVID C. BURY, District Judge.

The Court dismisses grounds two and three, and grants habeas relief on ground one of the Second Amended Petition. Respondents shall release Petitioner from custody unless, within days, retrial proceedings are commenced.

BACKGROUND

During the late night hours of December 21, 1992, Petitioner Celaya shot Trinidad Lopez, age 51. He died. She was years old and claimed she shot him in self-defense. She was transferred to adult court. A jury tried and convicted her of first degree murder and armed robbery. She was sentenced to a term of years to life on the murder charge and a consecutive term of 10.5 years for armed robbery. On direct appeal, the consecutive sentence was reversed, and she was resentenced to a concurrent term of prison for the armed robbery offense.

On November 28, 2001, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to Title 28, U.S.C. ? 2254. This Petition was held in abeyance while she exhausted unexhausted claims, and she subsequently filed a First Amended Petition on January 30, 2002, and a Second Amended Petition on September 26, 2007. Respondents filed an Answer on March 3, 2008. Petitioner filed a Reply on June 16, 2008.

On August 4, 2008, the Petition was referred to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation (R & R) in accordance with 28 U.S.C. ? 636(b)(1) and LRCiv. 72, Rules of Practice of the United States District Court for the District of Arizona.

On August 27, 2009, Judge Velasco issued the R & R. He recommends that this Court find the Petition is not barred by the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and that this Court grant ground one of the Petition and dismiss grounds two and three. Both parties filed written objections to the R & R, pursuant to 28 U.S.C. ? 636(b) and Fed. R. Civ.P.72(b). The matter is ready for final disposition by this Court.

STANDARD OF REVIEW

The duties of the district court in connection with a R & R by a Magistrate Judge are set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. ? 636(b)(1). The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed.R.Civ.P. 72(b), 28 U.S.C. ? 636(b)(1). Where the parties object to a R&R, a district court judge "shall make a de novo determination of those portions of the R&R to which objection is made." 28 U.S.C. ? 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). When no objections are filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc).

This Court's ruling is a de novo determination as to those portions of the R & R to which there are objections. 28 U.S.C. ? 636(b)(1)(C). To the extent that no objection has been made, arguments to the contrary have been waived. See 28 U.S.C. ? 636(b)(1)(A) (objections are waived if they are not filed within ten days of service of the R & R), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980) (failure to object to magistrate's report waives right to do so on appeal); Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation)).

STATUTE OF LIMITATIONS

A one-year limitation period applies to petitions for a writ of habeas corpus by a person in custody pursuant to a judgment of a state court. 28 U.S.C. ? 2244(d). Under the AEDPA, a state prisoner must file the petition within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review." 28 U.S.C. ? 2244(d)(1)(A). "The time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation." 28 U.S.C. ? 2244(d)(2).

The Court looks to the rules of the state court to determine when a state decision on a post-conviction petition is final to determine whether the petition is still pending for purposes of tolling the statute of limitations under ? 2244(d). (R & R at 1072-73.) In Arizona, a claim for post-conviction relief has been exhausted if it is presented to the court of appeals. Id. at 1067 (citations omitted). A discretionary petition to the Arizona Supreme Court is unnecessary. Id.

Here, it is undisputed that direct review by the state courts of Petitioner's criminal conviction was concluded when the Arizona Supreme Court denied review on September 18, 1996. The time for seeking review was 90 days. The Petitioner's conviction became final on December 17, 1996. She filed her notice of post-conviction relief on October 7, 1996, and the petition on August 3, 1998. The one-year statute of limitations was tolled while the petition for post-conviction relief was pending in the state courts.

This is the question before the Court. Respondent argues that the petition for post-conviction relief was no longer pending as of October 17, 2000, when the Arizona Court of Appeals issued the decision denying the petition for post-conviction relief. The Petitioner argues that for the purpose of tolling the statute of limitation period for habeas relief, 28 U.S.C. 2244(d)(2), the state petition was pending until the mandate issued on November 30, 2000.

Since Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir.2007), the answer for tolling the habeas statute of limitations has been that a state petition for post-conviction relief becomes final when appellate review is denied because then there is nothing for the state courts to do and, therefore, nothing remains pending. Id. at 1077. As Magistrate Judge Velasco noted, Hemmerle is factually distinct from the procedural posture of this case. The court in Hemmerle considered the finality of a post-conviction petition where Hemmerle sought review from the Arizona Supreme Court after the state court of appeals denied him review, after the trial court denied him relief. The court concluded that once the state supreme court decides to deny review, the appellate decision is final.

Here, the court of appeals granted review and denied the petition. Celaya did not seek review of the court of appeal's decision. Under such circumstances, the Arizona Rules of Criminal Procedure governing appeals and other post-conviction relief, Rule 31.23, provides: "if there has been no motion for reconsideration and no petition for review filed, the clerk of the Court of Appeals shall issue the mandate at the expiration of the time for the filing of such motion or petition." Motions for reconsideration must be filed within 15 days after the filing of a decision by the appellate court. Rule 31.18. A petition for review is filed within 30 days after the filing of a decision or within 15 days after the clerk has mailed a notice of the determination of a motion for reconsideration. Rule 31.19. Because the appellate court issued a decision denying relief and petitioner did not seek review, the appellate court issued the mandate 30 days after it had issued the decision. Under Arizona law, this concluded appellate review. (R & R at 1074-75) (citations omitted).

Hemmerle is inapplicable because there was no petition for review and no denial of review by any reviewing court. As Respondent notes, under the Arizona rules, there is no requirement for a mandate to issue from a denial of review. Under such circumstances, review is final when denied. There is nothing more for the reviewing court to do.

Here, the appellate court granted review and issued a decision, which became final when it issued the mandate as required by Rule 31.23. Here, once the appellate court issued its decision, it still needed to issue the mandate.

Speaking in respect to the one-year statute of limitations applicable to federal petitions for habeas relief pursuant to 28 U.S.C. ? 2255, the Supreme Court of the United States wrote: "Finality has a long-recognized, clear meaning in the post-conviction relief context: Finality attaches in that setting when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). The Court explained that while Congress had left the term undefined in the federal habeas statute, presuming of course that the term would be defined in conformity with Court precedent, id., it had defined the term in 28 U.S.C. ? 2244(d)(1), the parallel statutory provision for state habeas petitions. Both define when a direct appeal becomes final as: the date the judgment becomes final by conclusion of direct review or expiration of the time for seeking such review, id. at 530-32, 123 S.Ct. 1072. For a criminal defendant who does not file a petition for certiorari to the Supreme Court, the one-year limitation period starts to run when the time for seeking such review expires. Id. at 532, 123 S.Ct. 1072. See also, Wixom, 264 F.3d 894, 897 (9th Cir.2001) (describing finality the same for purposes of determining when a direct appeal is final under 28 U.S.C. ? 2244(d)(1)(A)).

For tolling purposes, however, state law determines finality. See Bunney v. Mitchell, 249 F.3d 1188, 1189 (9th Cir. 2001) (certifying the...

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