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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Bradley William Kennedy,

Petitioner, 

v. 

Gerald Thompson, et al., 

Respondents.

No. CV-17-04300-PHX-GMS

AMENDED ORDER 

 Pending before the court is Petitioner Bradley William Kennedy’s Amended 

Petition for a Writ of Habeas Corpus. (Doc. 6). Magistrate Judge Eileen S. Willett’s Report 

and Recommendation (“R&R”), (Doc. 14), recommends that Kennedy’s petition be 

dismissed and that no certificate of appealability be granted. Kennedy timely filed 

Objections. (Doc. 15). The Attorney General of the State of Arizona filed a Response to 

the Objections. (Doc. 16). Kennedy’s Petition is untimely and is therefore dismissed with 

prejudice. 

BACKGROUND

 Because no party has objected to the factual and procedural background as set forth 

in the R&R, the Court adopts the background as an accurate account. 

DISCUSSION

 In his petition, Kennedy asserts several grounds for habeas relief. (Doc. 1). 

However, the initial inquiry is whether Kennedy’s petition is timely under the AntiTerrorism and Effective Death Penalty Act (“AEDPA”). The R&R correctly concludes 
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that Kennedy’s petition is untimely and should therefore be dismissed with prejudice. 

I. Legal Standards 

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) (emphasis in original). 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). 

II. Analysis 

AEPDA established a strict statute of limitations for the filing of federal habeas 

petitions. Such a petition must be filed within one year of the latest of four circumstances. 

See 28 U.S.C. § 2244(d)(1). The relevant period for this case is “the date on which the 

judgment became final by the conclusion of direct review or the expiration of the time for 

seeking such review.” Id. (d)(1)(a). The one-year period, however, is often subject to 

tolling. AEDPA tolls the limitations period during the “time during which a properly filed 

application for State post-conviction relief or other collateral review with respect to the 

pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). AEDPA’s statute of 

limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 

(2010). But equitable tolling is not frequently available. To qualify, a petitioner must 

establish that (1) he has been pursuing his rights diligently and (2) extraordinary 

circumstances prevented him from filing their habeas petition on time. Pace v. 

DiGuglielmo, 544 U.S. 408, 418 (2005). 

The parties do not contest that Kennedy’s limitations period began running on June 

6, 2013. Kennedy, however, contends that his limitations period should be equitably tolled. 

Because he fails to demonstrate that extraordinary circumstances prevented him from filing 

his petition before the expiration of AEDPA’s limitations period, his petition is untimely 

and should be dismissed with prejudice. 
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A. Equitable Tolling 

Kennedy objects to the R&R’s conclusion that equitable tolling does not apply. 

Kennedy contends that it should apply such that the limitations period did not end until 

February 15, 2017. Kennedy bears the burden of establishing that equitable tolling is 

warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 

2006). 

To establish that equitable tolling applies, Kennedy must demonstrate that 

extraordinary circumstances were the proximate cause of his untimeliness. Spitsyn v. 

Moore, 345 F.3d 796, 799 (9th Cir. 2003). In his objections to the R&R, Kennedy asserts 

the “extraordinary circumstance” of “ineffective assistance of counsel during his state postconviction proceeding.” (Doc. 15 at 2). But Kennedy fails to explain why this alleged 

ineffectiveness of PCR counsel prevented him from filing his federal habeas petition within 

the required time. He therefore does not “show a causal connection between the unlawful 

impediment and his failure to file a timely habeas petition.” Bryant v. Arizona Attorney 

General, 499 F.3d 1056, 1060–61 (9th Cir. 2007). 

Further, Martinez v. Ryan, 566 U.S. 1 (2012), does not apply here. Martinez

recognized a narrow set of circumstances in which the procedural default of a claim of 

ineffective assistance of trial counsel can be excused because of the ineffectiveness of 

counsel in PCR proceedings. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012). See also 

Davila v. Davis, ___ U.S. ___, 137 S. Ct. 2058, 2062–63 (2017) (stating that Martinez

applies “in a single context—where the State effectively requires a defendant to bring [an 

ineffective-assistance-of-trial counsel] claim in state postconviction proceedings rather 

than on direct appeal.”). But that is not the situation here. Martinez does not apply to 

tolling the limitations of § 2244(d). See Lambrix v. Sec’y, Florida Dept. of Corr., 756 F.3d 

1246, 1249 (11th Cir. 2014) (“the equitable rule in Martinez applies only to the issue of 

cause to excuse the procedural default of an ineffective assistance of trial counsel claim 

that occurred in a state collateral proceeding and has no application to the operation or 

tolling of the § 2244(d) state of limitations for filing a § 2254 petition”); Madueno v. Ryan, 
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No. CV-13-01382-PHX-SRB, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014) 

(“Martinez has no application to the statute of limitations in the AEDPA which governs 

Petitioner's filing in federal court.”). 

“[T]he threshold necessary to trigger equitable tolling under AEDPA is very high.” 

Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (alterations omitted). Kennedy has 

failed to establish that extraordinary circumstances prevented him from timely filing his 

habeas petition. Pace, 544 U.S. at 418. He has failed therefore to demonstrate that the 

limitations period in § 2244(d) should be tolled because of equitable concerns. 

B. Actual Innocence 

Kennedy objects to the R&R’s observation that Kennedy “ma[de] no claim that the 

Court should apply the “actual innocence gateway” to excuse the timeliness of this 

proceeding.” (Doc. 14 at 6). In McQuiggin v. Perkins, the Supreme Court held that an 

actual innocence claim may serve as a “gateway” to overcome a statute of limitations bar 

to a habeas claim. 569 U.S. 383, 386 (2013). To access this gateway, however, a petitioner 

must “persuade[] the district court that, in light of the new evidence, no juror, acting 

reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. 

Kennedy’s petition presents no new evidence that would prevent a reasonable juror from 

finding him guilty beyond a reasonable doubt. Thus, even assuming that Kennedy did 

bring an actual innocence claim in his petition (which is far from clear), the claim would 

fail and does not therefore allow Kennedy to avoid the limitations period of § 2244(d). 

C. Certificate of Appealability 

A certificate of appealability should issue “when the prisoner shows . . . that jurists 

of reason would find it debatable whether the petition states a valid claim of the denial of 

a constitutional right and that jurists of reason would find it debatable whether the district 

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Jurists of reason would not find it debatable whether Kennedy’s petition states valid claims 

of the denial of his constitutional rights, nor would they debate whether Kennedy’s claims 

were untimely under § 2244(d). If Kennedy appeals this ruling, the Court declines to issue 
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a certificate of appealability. 

CONCLUSION

IT IS THEREFORE ORDERED that the Report and Recommendation of 

Magistrate Judge Willett (Doc. 14) is adopted. 

IT IS FURTHER ORDERED that Petitioner Bradley William Kennedy’s 

Amended Petition for a Writ of Habeas Corpus (Doc. 6) is DENIED and DISMISSED 

WITH PREJUDICE. 

IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action 

and enter judgment accordingly. 

 Dated this 8th day of March, 2019.