PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

J. THOMAS RAY, Magistrate Judge.

INSTRUCTIONS

The following Recommended Disposition ("Recommendation") has been sent to United States District Judge Susan Webber Wright. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

Mail any objections to:

I. Background

Petitioner, Christopher Lee Dunn ("Dunn"), is serving an aggregate sentence of life imprisonment, without the possibility of parole, based on his 1998 guilty plea to charges of capital murder and attempted capital murder. On September 11, 2012, Dunn initiated this § 2254 habeas action collaterally attacking his convictions. Doc. 1.

On November 30, 2012, United States Magistrate Judge H. David Young entered a Recommended Disposition (doc. 10) recommending that this case be dismissed, as untimely. On December 18, 2012, United States District Judge Susan Webber Wright adopted Judge Young's Recommended Disposition and declined to issue a certificate of appealability. Doc. 12. Dunn did not subsequently request a certificate of appealability from the Eighth Circuit Court of Appeals.

On November 16, 2015, Dunn filed a Motion for Relief from Judgment, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.1 Doc. 14. For the reasons discussed below, the Court recommends that the Motion be denied.

II. Discussion

Dunn argues that the merits of the ineffective assistance of counsel claims he asserted in his original habeas Petition should now be considered pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012). In Martinez, the Court recognized a "limited" and "narrow" equitable exception to the procedural default doctrine in jurisdictions where an ineffective assistance of trial counsel claim must be raised for the first time in an "initial-review collateral proceeding": "[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Id. at 1320.

Martinez has no application in this case, because Dunn's § 2254 habeas petition was dismissed on the ground it was untimely filed. The Martinez exception is an equitable exception to the procedural default doctrine, but does not apply to excuse an untimely habeas petition under AEDPA's statute of limitations. See, e.g. Coleman v. Atty Gen., 2015 WL 6749891, at *1 (D. Ariz. Nov. 5, 2015) (Martinez is "not applicable when the issue is whether a claim is untimely due to the running of the AEDPA limitations period.") (citing cases); Toby v. Lamas, 2015 WL 4878708, *10 (M.D. Pa. Aug. 14, 2015) ("Martinez did not deal with the statute of limitations; it addressed procedural default of state claims. And Martinez does not provide a basis for equitable tolling of the statute of limitations.") (citing cases); Britton v. Cain, 2015 WL 4755102 (E.D. La. Aug.6, 2015) ("the Magistrate Judge properly determined that because Martinez concerned the procedural default doctrine, and not the AEDPA's statute of limitations, it is inapplicable here and does not excuse Petitioner's failure to seek federal relief in a timely manner.") (citing cases).

III. Conclusion

IT IS THEREFORE RECOMMENDED THAT Petitioner's Motion for Relief From Judgment (doc. 14) and Amended Motion for Relief (doc. 18) be DENIED. IT IS FURTHER RECOMMENDED THAT a Certificate of Appealability be DENIED pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases.