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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

John Michael Northrop, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents. 

No. CV-17-04765-PHX-DGC (JFM) 

ORDER 

 Petitioner John Michael Northrop filed a petition under 28 U.S.C. § 2254 to vacate, 

set aside, or correct his sentence. Doc. 1. Magistrate Judge James F. Metcalf issued a 

Report and Recommendation (“R&R”) recommending that the Court deny the petition as 

untimely and without merit. Doc. 15 at 5, 16-22. The Court will accept the R&R and deny 

the petition. 

I. Background. 

 Petitioner pled guilty to one count of sexual conduct and two amended counts of 

attempted sexual conduct relating to a victim under 15 years of age, both designated as 

dangerous crimes against children. Docs. 15 at 2; 1 at 2. Petitioner was sentenced to 14 

years in prison followed by lifetime probation. Doc. 15 at 2. In his § 2254 petition, 

Petitioner asks the Court to discharge him from custody, restore his rights, and return seized 

property. Doc. 1 at 8. Petitioner argues that the Arizona Superior Court lacked subject 

matter jurisdiction over his criminal case, and he asserts various deficiencies in his 

indictment and conviction. Id. 
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II. Legal Standard. 

This Court “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “[T]he district 

judge must review the magistrate judge’s findings and recommendations de novo if 

objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 

(9th Cir. 2003) (en banc). District courts are not required to conduct “any review at all . . . 

of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 

(1985); see also 28 U.S.C. § 636(b)(1). 

III. Discussion. 

 Petitioner filed four objections to the R&R. See Doc. 16 at 5-13. Petitioner objects 

to Judge Metcalf’s findings that: (1) the Arizona Superior Court was not acting as a de 

facto federal court when it convicted and sentenced Petitioner; (2) Petitioner’s § 2254 

motion is untimely; (3) Petitioner’s crime of conviction is properly considered a dangerous 

crime against children under state law; and (4) Petitioner’s argument regarding the 

Enactment Clause of the Arizona Constitution is without merit. Id. The Court will first 

address the timeliness of Petitioner’s petition.

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a 

one-year deadline for filing an initial habeas petition, running 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.” 28 U.S.C. § 2244(d). Arizona’s Rule 32 of-right proceeding, 

available to criminal defendants who plead guilty, is considered a form of direct review for 

purposes of determining whether the statute of limitations has run. Summers v. Schriro, 

481 F.3d 710, 716-17 (9th Cir. 2007). Defendants convicted in Arizona state court have 

90 days after sentencing to file a timely petition for post-conviction relief (“PCR”). See

Ariz. R. Crim. P. 32.4.1

 

 

1

 Respondents and Judge Metcalf disagree on whether Arizona Rule of Criminal 

Procedure 1.3(a) applies in this case, which might have provided an additional five days for Petitioner to file a timely PCR petition. See Doc. 12 at 9; 15 at 10. But the applicability of Rule 1.3 is not dispositive because Petitioner filed his first PCR petition on January 8, 2018, more than four years after his sentencing. Doc. 15 at 2-3. 
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 Petitioner was sentenced on September 25, 2013, and his conviction became final 

on December 24, 2013, when the 90-day deadline expired and Petitioner had not filed 

notice of a PCR petition. Doc. 15 at 10. Petitioner had one year from December 25, 2013 

to file his § 2254 petition for a writ of habeas corpus. 28 U.S.C. § 2244(d). Petitioner did 

not file his petition until December 27, 2017. Doc. 1. Thus, in the absence of equitable 

tolling, the Court must dismiss Petitioner’s petition as untimely. 

 A petitioner bears the burden of showing that equitable tolling is appropriate. 

Raspberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). To do so, a petitioner must 

show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 

circumstance stood in his way.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 

(2005)). 

 Petitioner argues that “there was no conviction and there is no deadline” because 

“no conviction was entered” in the Arizona Superior Court. Doc. 16 at 7-8. He also argues 

that he is entitled to equitable tolling because the State violated the Sixth and Fourteenth 

Amendments by “depriv[ing] Petitioner of his due process right to be informed of the 

nature and cause of the accusation,” and that he had no knowledge of the “facts necessary 

to constitute the offenses of convictions and opportunity for objection to them.” Id. at 8. 

 To the extent Petitioner advances substantive or procedural arguments regarding his 

trial, plea, or conviction, his objection fails to provide a basis for equitable tolling. Nor 

does he otherwise address the R&R’s findings regarding his untimely petition. Petitioner 

filed his § 2254 petition more than three years after the deadline. He fails to show how he 

was diligently pursuing his rights and what extraordinary circumstance stood in his way. 

Nor does he allege any other basis for determining that the statute of limitations began 

running later than December 25, 2013. Because Petitioner’s petition is untimely, the Court 

lacks jurisdiction to consider his claims. 28 U.S.C. § 2244; Pace, 544 U.S. at 419. 

 IT IS ORDERED: 

1. Magistrate Judge James F. Metcalf’s R&R (Doc. 15) is accepted as set forth 

in this order. 
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 2. The Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 

§ 2254 (Doc. 1) is denied. 

 3. The Clerk of Court shall terminate this action. 

 4. A certificate of appealability is denied. 

 Dated this 30th day of November, 2018.