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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

James EK Francis, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-18-08014-PCT-JAT

ORDER 

 Pending before this Court is Petitioner James Francis’s Petition for Writ of Habeas 

Corpus (“Petition”). (Doc. 1). The Magistrate Judge issued a Report and Recommendation 

(“R&R”) recommending that the Petition be denied and dismissed because it is barred by 

the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) statute of limitations and, 

alternatively, is either procedurally defaulted or procedurally barred. (Doc. 12 at 4–11). 

The R&R further recommended that a Certificate of Appealability be denied. (Id. at 11). 

Petitioner filed an Objection to the Report and Recommendation (“Objection”). (Doc. 13). 

I. REVIEW OF AN R&R 

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). It is “clear that 

the 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 
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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) (“[T]he court shall make a de novo 

determination of those portions of the [R&R] to which objection is made.”). In this case, 

Petitioner filed an Objection, (Doc. 13), and the Court will review the relevant portions of 

the R&R de novo. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

The R&R summarized the factual and procedural history of this case and neither 

party objected to this history. (Doc. 12 at 1–4). Therefore, the Court adopts that portion of 

the R&R. 

III. STATUTE OF LIMITATIONS 

The R&R recommends that the Petition be denied as barred by the AEDPA’s statute 

of limitations. (Id. at 4–8). As explained by the Magistrate Judge, the AEDPA provides a 

one-year statute of limitations for state prisoners to file a petition for writ of habeas corpus 

in federal court. (Id. at 4); see also 28 U.S.C. § 2244(d). That period generally commences 

on “the date on which the judgment became final by the conclusion of direct review of the 

expiration of the time for seeking such review.” (Id. (quoting 28 U.S.C. § 2244(d)(1)(A))). 

Examining Petitioner’s procedural history in state court, the Magistrate Judge determined 

that Petitioner’s conviction became final on November 1, 2011. (Id. at 5). Therefore, 

AEDPA’s one-year statute of limitations period commenced the next day and expired on 

November 1, 2012. (Id.). Consequently, the Petition filed in January 2018 is untimely 

absent any statutory or equitable tolling. (Id.). 

Regarding statutory tolling, the Magistrate Judge explained that the “AEDPA 

provides for tolling of the limitations period when a ‘properly filed application for State 

post-conviction or other collateral review with respect to the pertinent judgment or claim 

is pending.’” (Id. (quoting 28 U.S.C. § 2244(d)(2))). An untimely application is never 

“properly filed” within the meaning of Section 2244(d)(2). (Id. (citing Pace v. DiGugliemo, 

544 U.S. 408, 414 (2005))). Petitioner never filed a PCR notice, and his 2016 motion for 

clarification—assuming arguendo it is a PCR notice under A.R.S. § 13-4234—was filed 
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“after the statute of limitations expired.” (Id. at 6). Therefore, the Magistrate Judge 

concluded that “no statutory tolling applies.” (Id.). 

Turning to equitable tolling, the Magistrate Judge explained that the Ninth Circuit 

permits “equitable tolling of AEDPA’s limitations period ‘only if extraordinary 

circumstances beyond a prisoner’s control make it impossible to file a petition on time.’” 

(Id. (quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999))). To receive equitable 

tolling, “a petitioner must show ‘(1) that he has been pursuing his rights diligently and (2) 

that some extraordinary circumstances stood in his way’ to prevent him from timely filing 

a federal habeas petition.” (Id. (quoting Holland v. Florida, 560 U.S. 631, 645 (2010))). 

Petitioner did not argue for, and the record does not suggest that, equitable tolling applies. 

(Id.). Accordingly, the Magistrate Judge concluded that Petitioner is not entitled to 

equitable tolling. (Id. at 6–8). 

Finally, the Magistrate Judge noted that a finding of actual innocence can excuse 

the untimeliness of a federal habeas petition. (See id. (citing McQuiggen v. Perkins, 569 

U.S. 383, 391–96 (2013))). For the excuse to apply, a “petitioner must make a credible 

showing of ‘actual innocence’ by ‘persuad[ing] the district court that, in light of the new 

evidence,’ no juror, acting reasonably, would have found him guilty beyond a reasonable 

doubt.” (Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995))). Noting that Petitioner 

“did not argue” for actual innocence, the Magistrate Judge concluded that he did not qualify 

for this excuse. (Id.). 

Based on Petitioner’s failure to file his habeas action within the statute of limitations 

and his failure to state a sufficient basis for statutory tolling, equitable tolling, or actual 

innocence, the Magistrate Judge concluded that the Petition must be dismissed with 

prejudice as untimely. (Id. at 4–8). 

IV. Petitioner’s Objections 

Petitioner’s Objection did not address the AEDPA’s statute of limitations, statutory 

tolling, equitable tolling, or actual innocence. (Doc. 13). Instead, the Objection raised 

arguments going to the merits of Petitioner’s Petition. See, e.g., (Id. at 9 (“The Arizona 
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statutory scheme for protection of child molestation rest upon the improper assignment of 

the burden of disproving, or negating, ‘sexual motivation’ implicit in the offense to accused 

by a preponderance of the evidence at trial.”)). Accordingly, Petitioner does not object to 

the Magistrate Judge’s application of the AEDPA’s statute of limitations to his procedural 

history or the determination that Petitioner’s one-year statute of limitations had expired 

because Petitioner failed to establish that statutory tolling, equitable tolling, or actual 

innocence should apply. (Doc. 13). The Court therefore accepts those recommendations. 

V. ALTERNATIVE RECOMMENDATION OF THE R&R 

The R&R alternatively recommends that even if the Petition were timely, the 

Petition should be denied because Petitioner’s claims are procedurally defaulted or were 

procedurally barred, and thus are barred from federal habeas review. (Id. at 8–9 (citing 

Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002))). Petitioner does not object to these 

findings by the Magistrate Judge. 

Because the Court has concluded that the Petition is untimely, the Court will not 

reach the alternative recommendations in the R&R regarding Petitioner’s state remedies 

on his claims being procedurally defaulted or procedurally barred. Accordingly, all of the 

objections are overruled. 

VI. Certificate of Appealability 

The R&R recommends that the Court deny a certificate of appealability. (Id. at 11). 

Petitioner does not object to this recommendation. The Court agrees with the R&R because 

“dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would 

not find the procedural ruling debatable.” (Id. at 11–12); see Slack v. McDaniel, 529 U.S. 

473, 484 (2000).

VII. Conclusion 

Based on the foregoing, 

IT IS ORDERED that the Report and Recommendation (Doc. 12) is accepted and 

adopted; the Objection (Doc. 13) is overruled. The Petition is thus denied with prejudice, 

and the Clerk of the Court shall enter judgment accordingly. 
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IT IS FURTHER ORDERED that the Court denies issuance of a certificate of 

appealability pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the event 

Petitioner files an appeal. 

Dated this 7th day of February, 2019.