ORDER

STEVEN P. LOGAN, District Judge.

Petitioner Victor Valenzuela, who is confined in the Arizona State Prison Complex-Kingman, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable David K. Duncan, United States Magistrate Judge, issued a Report and Recommendation ("R&R") (Doc. 11), recommending that the petition be denied as untimely. Petitioner has objected to the R&R. (Docs. 12, 13.) For the following reasons, the Court accepts and adopts the R&R, and denies the petition.

I. Background

Following a jury trial in the Pinal County Superior Court, Case No. 2008-01519, Petitioner was found guilty of possession of a dangerous drug for sale, possession of drug paraphernalia, and possession of marijuana. (Doc. 8-1, Exh. C.)1 On September 8, 2010, Petitioner was sentenced to concurrent terms of incarceration, the longest of which was a 10-year term of imprisonment. (Doc. 8-1, Exh. D.)

On November 6, 2014, Petitioner filed the instant Petition for Writ of Habeas Corpus raising four claims for relief. (Doc. 1.) Respondents filed a limited answer, in which they argue that the petition should be dismissed because the petition is untimely, and as procedurally defaulted and barred in the alternative. (Doc. 8.)

II. Standard of Review

The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). However, a party is not entitled as of right to de novo review of evidence and arguments raised for the first time in an objection to the R&R, and whether the Court considers the new facts and arguments presented is discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).

III. Discussion

Having reviewed the objected to recommendations de novo, the Court finds that the Magistrate Judge correctly concluded that Petitioner's claims are time-barred.

The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a State court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").2 28 U.S.C. § 2244. The AEDPA imposes a 1-year statute of limitations in which "a person in custody pursuant to the judgment of a State court" can file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1).

A. Commencement of Limitations Period

Here, the 1-year limitations period began to run when the time for seeking direct review expired. See 28 U.S.C. § 2244(d)(1)(A) (the 1-year limitations period runs from the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking such review). Following a timely direct appeal, the Arizona Court of Appeals issued its decision affirming Petitioner's convictions on March 23, 2011. (Doc. 8-2, Exh. H.) Petitioner did not file a timely petition for review to the Arizona Supreme Court. (Doc. 8-2, Exh. I.) Therefore, judgment became final on April 23, 2011, when the time for filing a petition for review by the Arizona Supreme Court expired. See Ariz. R. Crim. P. 31.19(a) ("Within 30 days after the Court of Appeals issues its decision, any party may file a petition for review with the clerk of the Supreme Court"); White v. Klitzkie, 281 F.3d 920, 924, fnt. 4 (9th Cir. 2002) ("it is the decision of the state appellate court, rather than the ministerial act of entry of the mandate, that signals the conclusion of review"). It follows that, absent any tolling, the one-year limitations period would have commenced the following day.

B. Statutory Tolling of Limitations Period

Petitioner properly filed a notice of post-conviction relief on April 15, 2011. (Doc. 8-2, Exh. J.) Petitioner's first post-conviction relief proceeding remained pending and statutorily tolled the limitations period until August 14, 2013, when the Superior Court dismissed the petition. (Doc. 8-2, Exh. P.) See 28 U.S.C. § 2244(d)(2) (one-year limitations period is tolled during the time that a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending"). Because Petitioner did not timely seek review of the petition (see Doc. 8-3, Exh. R), no application for post-conviction relief was pending following the Superior Court's denial and the limitations period began to run again the following day on August 15, 2013. See Evans v. Chavis, 546 U.S. 189, 191 (2006) (an application for state post-conviction review is "pending" during the period between a lower court's adverse determination and the filing of a timely appeal); Robinson v. Lewis, 795 F.3d 926, 928-29 (9th Cir. 2015); Stewart v. Cate, 757 F.3d 929, 935 (9th Cir. 2014) ("The time between the denial of a petition in a lower . . . court and the filing of a subsequent petition in the next higher state court does not toll the statute of limitations pursuant to 28 U.S.C. § 2244(d)(2) if the latter petition is not timely filed") (citing Carey v. Saffold, 536 U.S. 214, 225 (2002)).3

Because Petitioner's second post-conviction relief petition was dismissed as untimely, it was not properly filed and did not toll the limitations period. (Doc. 8-3, Exhs. V, Y); State v. Valenzuela, 2014 WL 4629065, at *1 (Ariz. Ct. App. Sept. 16, 2014.4 See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) ("Because the state court rejected petitioner's PCRA petition as untimely, it was not `properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2)"). Thus, unless equitable tolling or an exception applies, the one-year limitations period ran until it expired just short of three months prior to the filing of his federal habeas petition on November 6, 2014.

C. Equitable Tolling of Limitations Period

The Court finds that the Magistrate Judge also correctly found that Petitioner is not entitled to equitable tolling of the limitations period. See Holland v. Florida, 560 U.S. 631, 649 (2010) ("a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing" his federal habeas petition (internal quotations omitted)).

Petitioner objects to the R&R on the basis that he received ineffective assistance of counsel and is therefore entitled to equitable tolling pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012). (Doc. 12, 13.) This argument is without merit. The equitable rule in Martinez "applies only to the issue of cause to excuse the procedural default of an ineffective assistance of . . . counsel claim that occurred in a state collateral proceeding" and "has no application to the operation or tolling of the § 2244(d) statute of limitations" for filing federal habeas petitions. Chavez v. Sec'y, Fla. Dep't of Corr., 742 F.3d 940, 943 (11th Cir. 2014) (citing Arthur v. Thomas, 739 F.3d 611, 629-631 (11th Cir. 2014)). See Manning v. Epps, 688 F.3d 177, 189 (5th Cir. 2012) (Martinez does not extend to the statute of limitations period under 28 U.S.C. § 2244(d)(1)(B)); Madueno v. Ryan, 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").

D. Exception to the Limitations Period

Lastly, Petitioner does not argue, nor does the record show, that the "fundamental miscarriage of justice exception" is applicable and compels review of his time-barred claims. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013) ("an actual-innocence gateway claim" may serve as an exception to AEDPA's limitations period) (adopting Schlup v. Delo, 513 U.S. 298, 314-15 (1995)).

IV. Conclusion

Having reviewed the record as a whole, Petitioner's federal habeas claims are time-barred, and his objections are without merit. The R&R will therefore be adopted in full. Accordingly,

IT IS ORDERED:

1. That the Magistrate Judge's Report and Recommendation (Doc. 11) is accepted and adopted by the Court;

2. That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice;

3. That a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable; and

4. That the Clerk of Court shall terminate this action.