Conley 217749 v. Shinn

• Court: District Court, D. Arizona
• Decided: January 10, 2023
• Docket: 2:22-cv-00985
• Status: Unknown

Opinion

1 2 3 NOT FOR PUBLICATION 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Joseph Lee Conley, No. CV-22-00985-PHX-SRB

10 Petitioner, ORDER

11 v.

12 David C Shinn, et al.,

13 Respondents. 14 15 The Court now considers Petitioner Joseph Lee Conley’s (“Petitioner”) Amended 16 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) and Motion 17 for Stay of Proceedings Pending Exhaustion of State-Court Remedies (“Motion”). (Doc. 1, 18 Pet.; Doc. 2, Mot. for Stay.) The matters were referred to Magistrate Judge Deborah M. 19 Fine for a Report and Recommendation (“R&R”). (Doc. 18, Mot. to Stay R&R; Doc. 19, 20 Pet. R&R.) For the following reasons, the Court overrules the Objections, adopts the 21 R&Rs, denies the Motion, denies the Petition, and dismisses the Petition with prejudice. 22 I. BACKGROUND 23 A. Factual Background 24 The background of this case was summarized in the R&R and is incorporated herein: In its decision on Petitioner’s direct appeal of his convictions and 25 sentences in Maricopa County Superior Court case CR2004-035015-001, the Arizona Court of Appeals summarized the events leading to Petitioner’s 26 charges, convictions, and sentences: In the early afternoon of May 12, 2004, [Petitioner] 27 broke into the victim’s home, located about a block away from the abandoned town house in which [Petitioner] was staying. 28 While in the home, he used the victim’s computer 1 intermittently to view pornographic websites. He also strung lines of transparent wire across the entrance to the hallway “as 2 a makeshift early warning device.”

3 The victim came home around 6:30 p.m. [Petitioner] stabbed her in the back with a butcher knife as she tried to flee 4 out the front door. [Petitioner] then loaded the victim’s vehicle with items he had taken from her home and attempted to steal 5 it. However, he could not shift into reverse because of an interlock device that had been installed in the vehicle. 6

[Petitioner] then went to the abandoned town house to 7 change clothes. After he changed he knocked on the door of a nearby town house where J.G. and J.I. lived. [Petitioner] 8 confessed to J.G. and J.I. that he had killed a woman after breaking into her home and that he had attempted to steal items 9 from her home as well as her vehicle but had been unable to engage the vehicle. He asked for J.G.’s and J.I.’s help. 10

J.G. and J.I. asked [Petitioner] to show them the home 11 he had broken into. They drove him to the victim’s home but did not go inside. J.G. and J.I. then drove [Petitioner] to the 12 abandoned town house and dropped him off. Next, J.I. drove J.G. back to the victim’s home. J.G. called the police and 13 waited for them to arrive at the victim’s home, and J.I. returned to his home. 14

The victim was dead when police arrived on the scene. 15 After briefly interviewing J.G., police surrounded the abandoned town house and apprehended [Petitioner] as he 16 attempted to escape through a window. Subsequently, the police discovered several items of evidence inside the 17 abandoned town house linking [Petitioner] to the burglaries and the victim’s murder, including a pair of blood-stained 18 pants, the keys to the victim’s home and vehicle, some jewelry, and a package of the same type of cigarettes the victim had 19 purchased at a drug store shortly before coming home. Later testing revealed the blood on the pants came from the victim 20 and DNA found on the waistband and zipper matched [Petitioner]. Additionally, the police discovered [Petitioner’s] 21 DNA and fingerprints on multiple items and in different locations in the victim’s home and vehicle. 22

A Maricopa County Grand Jury returned an indictment 23 charging [Petitioner] with one count of first-degree murder, a class one felony, in violation of Arizona Revised Statutes 24 (“A.R.S.”) section 13-1105 (Supp. 2008); one count of second- degree burglary, a class four felony, in violation of A.R.S. 25 § 131507 (2001); and one count of third-degree burglary, a class four felony, in violation of A.R.S. § 13-1506 (Supp. 26 2008). The case proceeded to trial, and the jury found [Petitioner] guilty on all three counts. The jury further found 27 two aggravating factors as to each of the two burglary counts. The superior court then sentenced [Petitioner] to concurrent 28 aggravated terms of natural life imprisonment on the first- 1 degree murder conviction, seven years imprisonment on the second-degree burglary conviction, and three years 2 imprisonment on the third-degree burglary conviction. Also as recounted by the court of appeals, Petitioner “committed the offenses 3 just before his eighteenth birthday.” During the trial court proceedings in Maricopa County Superior Court, Petitioner was represented by appointed 4 counsel in the Maricopa County Public Defender’s Office. 5 (Pet. R&R at 2–3.) 6 The R&R also recited the history of Petitioner’s post-trial litigation: 7 1. Petitioner’s direct appeal

8 Represented by different counsel in the Maricopa County Public Defender’s Office, Petitioner timely appealed his convictions and sentences. 9 (Doc. 14-1, Ex. A, 01/02/2009 Order at 1–2, 6.) On appeal, Petitioner argued that the trial court (1) improperly denied Petitioner’s request for production 10 of the murder weapon, (2) gave an improper jury instruction, (3) improperly limited cross-examination of a witness, and (4) improperly admitted other- 11 act evidence. (Id. at 1.) On January 2, 2009, the Arizona Court of Appeals affirmed Petitioner’s convictions and sentences. (Id. at 6.) The court of 12 appeals issued its mandate on April 17, 2009. (See Doc. 14-1, Ex. H, 08/07/2012 Order at 1.) 13 2. Petitioner’s first PCR action 14 On May 14, 2009, Petitioner filed a pro se PCR notice in the superior 15 court, in which he requested counsel be appointed to represent him. (Doc. 14-1, Ex. B, PCR Not. I at 1–5.) Through appointed counsel Michael Reeves, 16 Petitioner filed a PCR petition on August 23, 2010. (Doc. 14-1, Ex. C, PCR Pet. I at 1–15.) In the PCR petition, Petitioner argued that the trial court 17 abused its discretion by not granting Petitioner’s request to substitute trial counsel, thereby violating Petitioner’s Sixth Amendment right to counsel. 18 (Id. at 7–15.) The state filed a response to the PCR petition. (Doc. 14-1, Ex. D, Rule 32 Resp. at 1–10.) On February 10, 2011, the superior court denied 19 Petitioner’s PCR petition in a minute entry stating simply that the superior court had “received and considered [Petitioner’s] Petition for Post- 20 Conviction Relief and the State’s Response” and “[a]fter review, IT IS ORDERED [that Petitioner’s] Petition for Post-Conviction Relief is denied.” 21 (Doc. 14-1, Ex. E, PCR Order at 1.)

22 On April 13, 2011, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 14-1, Ex. F, 04/20/2011 Order at 1.) On April 20, 23 2011, the Arizona Court of Appeals issued an order stating that Petitioner was required to file a petition for review within 30 days of the trial court’s 24 order denying Petitioner’s PCR petition, but Petitioner had not done so. (Id. at 1–2.) The court of appeals therefore dismissed Petitioner’s petition for 25 review as untimely. (Id.) The record before this Court contains no evidence that Petitioner filed a motion for reconsideration in the Arizona Court of 26 Appeals or a petition for review in the Arizona Supreme Court.

27 3. Petitioner’s second PCR action

28 On July 5, 2012, Petitioner filed a second pro se PCR notice and requested appointment of counsel. (Doc. 14-1, Ex. G, PCR Not. II at 1–3.) In 1 his second pro se PCR notice, Petitioner argued that the United States Supreme Court’s June 25, 2012, decision in Miller v. Alabama, 567 U.S. 460 2 (2012), applied retroactively to Petitioner’s sentence imposed in May 2007. (Id. at 3.) 3 On August 17, 2012, the superior court dismissed Petitioner’s second 4 PCR notice as untimely. (08/07/2012 Order at 1–2.) The superior court determined that Petitioner’s second PCR notice was due to be filed by May 5 17, 2009, following the court of appeals’ issuance of an order and a mandate on April 17, 2009, regarding Petitioner’s first PCR proceedings. (Id. at 1.) 6 As part of its dismissal order of the second PCR proceedings as untimely, the superior court addressed Petitioner’s argument that Miller constituted a 7 change in the law that would allow Petitioner’s untimely PCR notice. In doing so, the superior court stated that: 8 [Petitioner] claims he should be allowed to file this untimely 9 notice based on a significant change in the law. Specifically [Petitioner] contends Miller v. Alabama __ U.S. __ (June 25, 10 2012), constitutes a significant change in the law that applies to his case. [Petitioner] states that Miller held that a juvenile 11 cannot be sentenced to life imprisonment. Miller does not place a categorical ban on juvenile life without parole. The Supreme 12 Court ruled out such a sentence as a mandatory requirement in murder cases. Hence, the judge or jury must have the 13 opportunity to consider mitigating circumstances prior to imposing the harshest sentence possible for a juvenile. 14 [Petitioner] sets forth no valid factual or legal basis to support his claim. Accordingly, [Petitioner] has failed to demonstrate 15 that Miller is a significant change in the law that applies to his case. 16 (Id. at 2.) 17 Thereafter, Petitioner petitioned the Arizona Court of Appeals for 18 review of the superior court’s dismissal of his second PCR proceedings. (Doc. 14-1, Ex. I, 10/17/2013 Order at 2.) On October 17, 2013, the court of 19 appeals granted review but denied relief, finding that:

20 Miller did not ban the imposition of sentences to life without the possibility of parole for juveniles. Rather, Miller held 21 mandatory sentences of life-without-parole for juvenile offenders violated the Eighth Amendment. [Miller, 132 S. Ct.] 22 at 2464. Because [Petitioner’s] sentence to natural life was not mandatory, he has failed to state a colorable claim for relief. 23 (Id. at 1–3.) 24 The court of appeals issued its mandate on December 10, 2013. The 25 record before this Court contains no evidence that Petitioner filed a motion for reconsideration in the Arizona Court of Appeals or a petition for review 26 in the Arizona Supreme Court.

27 3. Petitioner’s third PCR action 28 On January 6, 2017, Petitioner filed a third pro se PCR notice in the superior court and requested appointment of counsel. (Doc. 14-1, Ex. J, PCR 1 Not. III at 1–4.) In his third pro se PCR notice, Petitioner argued that Miller was retroactively applicable to his case pursuant to Montgomery v. 2 Louisiana, 577 U.S. 190 (2016) and Tatum v. Arizona, 137 S. Ct. 11 (2016). (Id. at 3.) Petitioner argued that he “was entitled to a hearing where the 3 sentencing court must decide whether the crime reflected ‘transient immaturity’ or ‘irreparable corruption’ before imposing the harshest 4 sentence of ‘natural life.’” (Id.) Through different PCR counsel than in Petitioner’s first PCR 5 proceedings, Petitioner filed a third PCR petition in the superior court on March 11, 2018. (Doc. 14-1, Ex. K, PCR Pet. III at 1–8.) In his third PCR 6 petition, Petitioner argued that Miller and Montgomery constituted a significant change in the law, entitling Petitioner to post-conviction relief and 7 subsequent resentencing. (Id. at 4–8.) In response, the state initially conceded that Petitioner was entitled to an evidentiary hearing under State v. Valencia, 8 241 Ariz. 206 (2016), and Ariz. R. Crim. P. 32.8. (Doc. 14-1, Ex. L, Resp. to PCR Pet. III at 1–2.) 9 On September 10, 2021, the superior court dismissed Petitioner’s third 10 PCR petition and granted the state’s motion to vacate the evidentiary hearing on Petitioner’s claim. (Doc. 14-1, Ex. M, 09/10/2021 Order at 1–2.) The 11 superior court determined that Petitioner was not entitled to an evidentiary hearing because Petitioner had not stated a colorable claim for relief. (Id.) 12 Specifically, the superior court stated that it found: no material issue of fact or law that would entitle [Petitioner] 13 to relief because, as this Court already found in 2012, Miller was not a significant change in the law applicable to 14 [Petitioner’s] case that would probably overturn his natural life sentence. Miller did not place a categorical ban on juvenile life 15 without parole. Rather the Supreme Court held that mandatory natural life sentences were unconstitutional. Miller, 567 U.S. 16 at 480. Because this Court had discretion to sentence [Petitioner] to life with the possibility of release after 25 17 years—a sentence less than natural life—his natural life sentence was not mandatory. 18 Montgomery thereafter only made Miller retroactive, 19 and thus, does not change this Court’s previous finding that Miller was not applicable to [Petitioner] because his natural life 20 sentence was not mandatory. Jones [v. Mississippi], 141 S. Ct. [1307] at 1314–16 [(2021)]. Nor does Tatum v. Arizona, 21 change this Court’s previous finding because its broadened interpretation of Miller by Montgomery was implicitly 22 overruled by Jones. Likewise, State v. Valencia, 241 Ariz. 206 (2016)’s interpretation of Montgomery as clarifying or 23 broadening Miller, based in part on Tatum, was implicitly overruled by Jones. Jones clarified that Miller was narrow and 24 that a natural life sentence for juveniles is constitutional “only so long as the sentencer has discretion to ‘consider the 25 mitigating qualities of youth’ and impose a lesser punishment.” 141 S. Ct. at 1314 (quoting Miller, 567 U.S. at 476.) See also 26 State v. Soto-Fong, 474 P.3d 34, 40, ¶¶ 19, 22–23 (2020) (confirming Jones’s narrow interpretation of Miller, that a 27 sentencer must only “consider ‘an offender’s youth and attendant characteristics’ before sentencing a juvenile to life 28 without the possible of parole,” and agreeing with Justice Scalia’s dissent in Montgomery that Miller’s holding was 1 narrow and “merely mandated that trial courts ‘follow a certain process— considering an offender’s youth and attendant 2 characteristics—before imposing a particular penalty.’”). Even assuming, without deciding, that Miller represents 3 a significant change in the law applicable to [Petitioner], it would not probably overturn his natural life sentence because 4 this Court considered [Petitioner’s] “youth and attendant characteristics” before imposing the sentence. Jones, 141 S. Ct. 5 at 1313, 1316. This is all Miller requires. Id. Miller does not require a “sentencer to make a separate finding of permanent 6 incorrigibility before imposing such a sentence,” find that [Petitioner] is the “rarest of juvenile offenders,” or provide any 7 on-the-record sentencing explanation. Id. at 1319–21. And “Montgomery did not purport to add to Miller’s requirements.” 8 Id. at 1316. Thus, even assuming Miller applied to [Petitioner’s] case, Miller was satisfied when this Court 9 considered [Petitioner’s] youth and attendant characteristics as outlined in Miller. 567 U.S. at 477–78. 10 (Id.) 11 On October 8, 2021, through PCR counsel, Petitioner moved for reconsideration of the superior court’s denial of relief, arguing that Jones v. 12 Mississippi did not affect Petitioner’s case; that Petitioner was sentenced under a mandatory sentencing scheme; and that Petitioner was entitled to an 13 evidentiary hearing. (Doc. 14-1, Ex. N, Mot. for Reconsideration at 1–6.) The superior court denied Petitioner’s motion for reconsideration on June 9, 14 2022, finding no good cause for reconsideration. (Doc. 14-1, Ex. O, 06/09/2022 Order.) 15 On June 14, 2022, through PCR counsel, Petitioner filed a petition for 16 review in the court of appeals, challenging the superior court’s dismissal of his PCR petition and denial of his motion for reconsideration. (Doc. 14-1, 17 Ex. P, Pet. for Review at 1–9.) Petitioner’s petition for review remains pending in the state courts. (See Mot. for Stay at 1; Doc. 15, Resp. to Mot. 18 for Stay at 5.) 19 Petitioner’s Habeas Claim Petitioner asserts one ground for relief in his June 7, 2022, Petition: 20 that his “natural life sentence, imposed for crimes committed when he was a juvenile, violates the Eighth Amendment as articulated in Miller v. Alabama, 21 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016).” (Pet. at 21–26.) Petitioner argues that the Arizona legislature’s enactment of 22 Arizona Revised Statutes § 13-716, providing parole eligibility for juvenile offenders following the completion of mandatory minimum terms, did not 23 apply to Petitioner and did not cure the Miller violation in his case. (Id. at 24–25.) Petitioner argues that he is entitled to a new sentencing hearing 24 because Petitioner’s sentencing court did not consider the effect of “youth and its attendant characteristics[.]” (Id. at 25–26.) In their Limited Answer to 25 the Petition, Respondents assert one defense: that Petitioner’s Petition is time-barred under 28 U.S.C. § 2244(d)(1)(A) and 28 U.S.C. § 2244(d)(1)(C) 26 of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (Doc. 15, Ans. at 5–8.) Respondents argue that for purposes of 28 U.S.C. 27 § 2244(d)(1)(C), AEDPA’s one year limitations period began on the issuance of Miller, not Montgomery. (Id.) In reply, Petitioner argues that Montgomery 28 and the Arizona Supreme Court’s decision in State v. Valencia, 241 Ariz. 206 (2016), required the state court to provide an evidentiary hearing in 1 Petitioner’s case. (Doc. 16, Reply to Resp. at 1–4.) Petitioner asserts that the state courts could not decide his constitutional claim prior to Supreme Court 2 precedent on such an issue. (Id. at 4.) In essence, Petitioner argues that for purposes of 28 U.S.C. § 2244(d)(1)(C), AEDPA’s statute of limitations 3 began on the issuance of Montgomery, not Miller. 4 (Pet. R&R at 3–9) (cleaned up). 5 B. Procedural History 6 Petitioner filed the Petition and Motion on June 7, 2022, to which Respondents 7 David Shinn and the Attorney General of Arizona (collectively, “Respondents”) filed their 8 Responses in Opposition on August 17, 2022. (Pet.; Mot. for Stay; Resp. to Mot. for Stay.) 9 The Magistrate Judge issued her R&Rs on September 27, 2022, recommending that the 10 Court: (1) deny the Motion; (2) dismiss and deny the Petition with prejudice; and (3) deny 11 a certificate of appealability “because the dismissal of the Petition is justified by a plain 12 procedural bar and jurists of reason would not find the procedural ruling debatable.” (Mot. 13 to Stay R&R at 7; Pet. R&R at 22.) Petitioner timely filed his Objections on October 5, 14 2022, to which Respondents replied on October 13, 2022. (Doc. 20, Obj. to R&R (“Obj.”); 15 Doc. 21, Reply to Obj.) 16 II. LEGAL STANDARD 17 A district court “must make a de novo determination of those portions of the 18 report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in 19 part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). 20 A court need review only those portions objected to by a party, meaning a court can adopt 21 without further review all portions not objected to. United States v. Reyna-Tapia, 328 F.3d 22 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district judge must review the magistrate 23 judge’s findings and recommendations de novo if objection is made, but not otherwise.”). 24 For those portions of a Magistrate Judge’s findings and recommendations to which neither 25 party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 26 474 U.S. 140, 152 (1985) (“There is no indication that Congress . . . intended to require a 27 district judge to review a magistrate’s report to which no objections are filed.”). 28 III. OBJECTIONS 1 Petitioner objects to the R&R’s conclusion that the Petition is time-barred.1 2 Specifically, Petitioner asserts that the Magistrate Judge should not have concluded that 3 the limitations period on Petitioner’s Eighth Amendment claim began to run after the 4 Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012). (See Obj. at 2–3.) 5 For the following reasons, the Court agrees with the Magistrate Judge. 6 AEDPA sets one-year statutes of limitations for different habeas claims. While a 7 petitioner may be required to present his habeas claim within a year after his conviction 8 became final,2 AEDPA also provides for a one-year statute of limitations after the “date on 9 which the constitutional right asserted was initially recognized by the Supreme Court, if 10 the right has been newly recognized by the Supreme Court and made retroactively 11 applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). On June 25, 2012, 12 the Supreme Court decided Miller, but the Supreme Court did not hold that Miller applied 13 retroactively until it decided Montgomery v. Louisiana, 577 U.S. 190 (2016) four years 14 later. The Supreme Court has since clarified that “Montgomery did not purport to add to 15 Miller’s requirements.” Jones v. Mississippi, 141 S. Ct. 1307, 1316 (2021). Further, when 16 interpreting statutory language functionally identical to § 2244(d)(1)(C), the Supreme 17 Court reasoned: 18 That clause—“if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review”—imposes a 19 condition on the applicability of this subsection. See Webster’s Third New

20 1 Petitioner appears to make only one objection to the separate R&R regarding his Motion. (See Obj. at 2–3.) He asserts that the Magistrate Judge inaccurately stated that “Petitioner 21 claimed that his [Eighth] Amendment claim is potentially meritorious,” when in fact “this court stated that [Petitioner’s Eighth] Amendment claim is meritorious.” (Id.) Petitioner 22 mischaracterizes the Court’s previous Order, wherein the Court summarized Petitioner’s arguments in support of the Motion and stated that it was “unclear” if Petitioner’s state 23 court proceedings were procedurally appropriate. (See Doc. 8, 07/08/2022 Order at 2.) Petitioner’s objection is overruled, and the Report and Recommendation is adopted with 24 respect to the Motion. 2 Petitioner objects to the Magistrate Judge’s threshold finding that he has not brought this 25 Petition within one year of the date his conviction became final on direct review. (See Obj. at 1.) Specifically, Petitioner argues that he is not challenging his conviction, rather “the 26 constitutionality of the Petitioner’s sentence.” (Id.) But the R&R’s analysis on this point is merely applying § 2244(d)(1)(A), one of the “four possible starting dates for the beginning 27 of [AEDPA’s] one-year statute of limitations period.” (See Pet. R&R at 9–13.) Petitioner’s objection to this portion of the R&R’s analysis is overruled, and the Report and 28 Recommendation is adopted with respect to the Magistrate Judge’s § 2244(d)(1)(A) analysis. 1 International Dictionary 1124 (1993) (the definition of “if” is “in the event that” or “on condition that”). It therefore limits [the clause’s] application to 2 cases in which applicants are seeking to assert rights “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 3 review.” § 2255, ¶ 6(3). That means that ¶ 6(3)’s date—“the date on which the right asserted was initially recognized by the Supreme Court”—does not 4 apply at all if the conditions in the second clause—the right “has been newly recognized by the Supreme Court and made retroactively applicable to cases 5 on collateral review”—have not been satisfied. As long as the conditions in the second clause are satisfied so that ¶ 6(3) applies in the first place, that 6 clause has no impact whatsoever on the date from which the 1–year limitation period in ¶ 6(3) begins to run. Thus, if this Court decides a case 7 recognizing a new right, a federal prisoner seeking to assert that right will have one year from this Court’s decision within which to file his § 2255 8 motion. He may take advantage of the date in the first clause of ¶ 6(3) only if the conditions in the second clause are met. 9 Dodd v. United States, 545 U.S. 353, 358–59 (2005) (analyzing 28 U.S.C. § 2255, ¶ 6(3), 10 which mandated that the statute of limitations for habeas claims from federal detainees ran 11 from “the date on which the right asserted was initially recognized by the Supreme Court, 12 if that right has been newly recognized by the Supreme Court and made retroactively 13 applicable to cases on collateral review.”) (emphasis added). 14 Petitioner objects to the Magistrate Judge’s conclusion that Dodd and Jones control 15 the outcome of the Petition. (See Obj. at 1–3; see Pet. R&R at 14–17.) Petitioner is 16 incorrect. The one-year statute of limitations for habeas claims under Miller began to run 17 on June 25, 2012, the date the case was decided. Petitioner filed his second PCR petition 18 on July 5, 2012, in which he argued that he was entitled to retroactive relief under Miller. 19 (Pet. R&R at 17 (citing PCR Not. II at 1–3).) In December 2013, the Court of Appeals 20 denied Petitioner relief. (Id.) AEDPA provides that the statute of limitations was tolled on 21 Petitioner’s claim during the pendency of his PCR petition. See 28 U.S.C. § 2244(d)(2). 22 Factoring in the pendency of his appeal, the statute of limitations for Petitioner’s Miller 23 claim expired in December 2014. (See Pet. R&R at 18.) The Supreme Court acknowledged 24 “the potential for harsh results” under the statute but confirmed that “an applicant who files 25 a second or successive motion seeking to take advantage of a new rule of constitutional 26 law will be time barred except in the rare case in which this Court announces a new rule of 27 constitutional law and makes it retroactive within one year.” Dodd, 545 U.S. at 359. 28 Petitioner’s objections to this portion of the R&R’s analysis are overruled, and the Report 1 and Recommendation is adopted with respect to the Magistrate Judge’s § 2244(d)(1)(C) 2 analysis. 3 Petitioner relatedly objects to the R&R’s conclusion that Montgomery did not 4 recognize a new constitutional right. (Obj. at 3.) Petitioner is again incorrect. Petitioner 5 argues that Miller did not require courts to consider whether a juvenile’s crime was the 6 product of “transient immaturity,” yet Miller addresses this precise concern. (See id.); 7 Miller, 567 U.S. at 479–80 (“Although we do not foreclose a sentencer’s ability to make 8 that judgment [whether a crime reflects transient immaturity or irreparable corruption] in 9 homicide cases, we require it to take into account how children are different, and how those 10 differences counsel against irrevocably sentencing them to a lifetime in prison.”). Miller, 11 not Montgomery, set the statute of limitations for Petitioner’s instant claim of a Miller 12 violation. Petitioner appends the opinion in State v. Wagner, 510 P.3d 1083 (Ariz. 2022) 13 to his Objections, but this decision does not negate AEDPA’s statute of limitations, nor 14 does any Arizona precedent change how this statute of limitations runs for an alleged Miller 15 violation. (See Obj. at 4–5 (citing State v. Valencia, 386 P.3d 392 (Ariz. 2016)); Doc. 20, 16 Ex. E, State v. Wagner Ruling.) 17 Lastly, Petitioner objects to the Magistrate Judge’s statement that Petitioner’s 18 “[second] PCR was dismissed because it was untimely,” instead asserting that the state 19 court addressed the merits of Petitioner’s PCR. (Obj. at 2.) Not only does this point have 20 no effect on the outcome of the Petition, but the Magistrate Judge explained that the state 21 court also reached the merits of Petitioner’s claim. (Pet. R&R at 5–6.) Petitioner’s 22 objections are overruled and the Report and Recommendation is adopted in full. 23 IV. CONCLUSION 24 Finding the Petition to be time-barred, the Court overrules the Objections, adopts 25 the Report and Recommendations, denies the Motion and Petition, and dismisses the 26 Petition with prejudice. 27 IT IS ORDERED overruling the Objections to the Magistrate’s Report and 28 Recommendation (Doc. 20). 1 IT IS FURTHER ORDERED adopting the Report and Recommendations 2|| of the Magistrate Judge as the Order of this Court (Doc. 18; Doc. 19). 3 IT IS FURTHER ORDERED denying Petitioner’s Motion for Stay of 4|| Proceedings Pending Exhaustion of State-Court Remedies (Doc. 2). 5 IT IS FURTHER ORDERED denying Petitioner’s Petition for Writ of 6 || Habeas Corpus and dismissing the Petition with prejudice (Doc. 1). 7 IT IS FURTHER ORDERED denying a Certificate of Appealability and 8 || leave to proceed in forma pauperis on appeal because dismissal of the petition is 9|| justified by a plain procedural bar and jurists of reason would not find that 10 || procedural ruling debatable. 11 IT IS FURTHER ORDERED directing the Clerk to enter Judgment || accordingly. 13 Dated this 10th day of January, 2023. 14 15 ° Sen fiabton 17 Susan R. Bolton 18 United States District Judge 19 20 21 22 23 24 25 26 27 28

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