REPORT AND RECOMMENDATION

MICHELLE H. BURNS, Magistrate Judge.

TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT

On February 12, 2018, Petitioner Johnny Dominguez Amarillas, who is confined in the Arizona State Prison, Yuma-Cheyenne Complex, Yuma, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (hereinafter "habeas petition"). (Doc. 1.) On May 31, 2018, Respondents filed a Limited Answer, and on August 15, 2018, Petitioner filed a Reply. (Docs. 10, 15.)

BACKGROUND

On November 5, 1995, Petitioner was indicted, along with a co-defendant, by a Maricopa County Grand Jury on three counts of armed robbery, class 2 dangerous felonies, and one count of aggravated assault, a class 3 dangerous felony. (Doc. 10, Exh. A.) The victims of the three robberies and assault were, as identified by their initials: JB (count one); JM (count two — aggravated assault); PM (count three); and CF (count four). (Id.) The facts adduced at trial in support of conviction were as follows1

Robbery One — Subway — 9/30/95

On September 30, 1995, JB and JM were working their shifts at a Subway store in Glendale, Arizona. At 10:30 p.m., JM was outside smoking a cigarette and getting ready to close the store when a male and female approached the store. (Exh. D at 186.) JM testified that the female pushed him into the store and toward the back, meanwhile lifting her shirt to display a black semi-automatic 9- or 3-millimeter gun. (Id. at 187-88.) JM described the female as 5' 3"-4" tall, 120-130 pounds, late 20's, wearing a white t-shirt and black pants, and possibly having a teardrop tattoo on her face. (Id.) JM identified Petitioner's co-defendant Garza in court as the female robber. (Id.) JM described the male robber as 5' 5"-6" tall, thin, white t-shirt, tattoos up and down his arms, late 30's-early 40's, Hispanic with a mustache. (Id. at 190.) JM was unable to identify Petitioner in court, but had picked Petitioner's recent photograph out of a lineup on October 26, 1995, presented to him by Detective Bruce Lowe. (Exh. E. at 215-219.)

The male robber instructed JM to put all of the money into a Subway bag. (Exh. D at 192.) JM's coworker JB took the cash out of the register and safe, totaling approximately $300-$400. (Id. at 192-94.) The male robber then instructed JM and JB to get on the floor and to not look up until he and the female robber were gone. JB testified similarly that he was working his shift inside the Subway that night when the female robber began pushing JM back into the store from outside. (Exh. G at 8-10.) He described the female as Hispanic, curly long black hair, 5' 8"-9", medium built, 20-26 years old, wearing a white shirt and black pants. (Id.) JB identified Petitioner's co-defendant Garza in court. (Id. at 10.) JB described the male as shorter than Garza, with a shaved head, black mustache, medium build, 5'5"-6" tall, with tattoos on his arms and maybe one on his neck, wearing a white t-shirt and black pants. (Id. at 12.) JB identified Petitioner in court. (Id. at 14.)

JB testified that he had seen both Petitioner and his co-defendant many times shopping the area of the Subway. (Exh. G at 15, 24.) He also picked Petitioner and his co-defendant out of the photo lineup shown to him by Detective Lowe on October 31, 1995. (Exh. E at 218-220.) Petitioner was charged with and convicted of one count of armed robbery (count one), and one count of aggravated assault on JM (count two) relating to this incident.

Robbery Two — Subway — 10/1/1995

On October 1, 1995, PM was working his shift at Subway in Sun City, Arizona, at 8:30 p.m. when a male carrying an ice cream cone, and a female entered the store together. (Exh. E. at 129-31.) The female was described as Hispanic, early 20's, 5' 8" tall, approximately 135 pounds, black hair tied up, wearing a white t-shirt and baggy pants. (Id. at 131-32.) PM identified Petitioner's co-defendant Garza in court. (Id.) PM described the male as Hispanic, with a buzz hair cut, black air, mustache, with tattoos on his right arm from upper elbow to lower arm, wearing a navy t-shirt. (Id. at 132.) The female demanded all the money, and brandished a gun from under her shirt that had a black or brown grip. (Id. at 133-34.) The male robber demanded PM's wallet, watch and ring, and the money from the safe in the back, and then ordered PM to lay on the floor as the robbers exited the store. (Id. at 139-140.) PM selected Petitioner's photo as the male robber out of a photographic lineup presented to him by Detective Bruen on October 26, 1995. (Id. at 143.)

When Petitioner was arrested on October 26, 1995, he was found wearing a watch that was seized by Detective Lowe. (Exh. E. at 221-22.) PM identified that watch as the one taken from him during the robbery on October 1, 1994. (Id. at 144.) PD was called as a witness to the events of October 1, 1995. She testified that she was working at a Baskin and Robbins ice cream store just three doors down from the Subway. (Id. at 58.) She sold ice cream to a male and female at approximately 8:30 p.m. (Id. at 59.) She described the male as approximately 5' 7" tall, Hispanic with short dark hair, a mustache, wearing a dark t-shirt and baggy pants. (Id.) PD identified both Petitioner and his co-defendant in court. (Id. at 60-61.) She also had selected Petitioner's photograph out of a lineup presented to her on October 25, 1995 by Detective Strang. (Id., 231-33.)

Petitioner was charged with and convicted of one count of armed robbery (count three) relating to this incident.

Robbery Three — Subway — 10/7/1995

On October 7, 1995, CF was working her shift at the same Subway in Sun City, that was robbed on October 1, 1995, when at 10:15 p.m., a male and female entered the store. (Exh. D. at 138-39.) The male yelled "I will knock this fucking shit off," and displayed a gun handle. (Id. at 143.) The female began telling her what to do, to take money out of the register and put it into plastic Subway bags. (Id.) The robbers demanded her watch and fanny pack, and instructed her to lay on the floor face-down until they left exited the building. (Id. at 143-46.) She described the female as tall, Hispanic, long black hair with a grey streak in it, with a tattoo on the side of her fact. (Id. at 139-41.) CF described the male as shorter, with crew-cut hair, mustache wearing a white t-shirt. (Id. at 142-43.) CF was unable to identify Petitioner in court, and identified a woman in the back of the courtroom as the female robber. (Id.)

A store videotape of the incident was played for the jury, after which CF identified both Petitioner and his co-defendant in court as the male and female robbers. (Exh. D. at 162-66.) Petitioner was charged and convicted of one count of armed robbery (count four) relating to this incident.

Detective Bruce Lowe testified that when he arrested Petitioner, he observed that Petitioner had a "sleeve" tattoo on his left arm and tattoos on his right arm, a small cross tattoo on the corner of his right eye, and some tattoos on his neck. (Exh. E. at 211-12.)

On July 10, 1996, the jury found Petitioner guilty on all counts. (Exh. F. at 179-81.) At sentencing, the trial court found as aggravating factors on each count that Petitioner had numerous prior felony convictions, the presence of an accomplice, and that the crimes were committed for pecuniary gain, and found no mitigating factors. (Exh. G at 15.) On August 30, 1996, Petitioner was sentenced to 12 years' imprisonment on Count One, 8 years' imprisonment on Count Two, 14 years' imprisonment on Count Three, treating it as a second dangerous felony offense for A.R.S. § 13-702.02 purposes, and 21 years' imprisonment on Count 4. (Id. At 15-16.) The trial court ordered Counts One and Two to be served concurrently, and that Count Three and Four be served concurrently, but consecutive to Counts One and Two. (Id.) Petitioner's counsel then advised the court that it had a duty, pursuant to A.R.S. § 13-702.02, to confer with counsel prior to imposing an aggravated sentence. (Id. At 19.) The trial court agreed and reset sentencing on Counts Three and Four. (Id.)

On October 3, 1996, sentencing resumed, and the trial court again sentenced Petitioner to 14 years' imprisonment on Count Three, and 21 years' imprisonment on Count Four; however, the sentence on Count Four was made to run consecutive to the sentence on Count Three. (Exh. H at 5-6.). The trial court later, on its own motion, reduced the sentence on Count Four to be 18 years. (Exh. I. at 12.)

A. Direct Appeal.

Petitioner, through counsel, filed a timely direct appeal asserting that (I) reversible error occurred when the trial court failed to allow [Petitioner] to represent himself, and (II) a new sentencing should be ordered because of the irregularities occurring at the two sentencing proceedings in the case. (Exh. I.) On July 24, 1997, the Arizona Court of Appeals analyzed the merits and affirmed Petitioner's convictions and sentences. (Exh. K.) Petitioner did not file a motion for reconsideration or a petition for review in the Arizona Supreme Court, and the Arizona Court of Appeals issued its mandate on September 4, 1997. (Exh. L.)

B. State Post-Conviction Proceedings.

Petitioner initiated his first post-conviction proceeding by filing a notice of post conviction relief ("PCR") on September 4, 1996. (Exh. M.) On July 18, 1997, the trial court dismissed the proceedings, as Petitioner had not filed a timely petition, despite having been given 3 extensions. (Exh. N.) Petitioner initiated a second post-conviction proceeding nearly 5 years later, on August 13, 2001, by filing a notice of post-conviction relief. (Exh. O.) In his notice, Petitioner checked the boxes on the form indicating he was raising the issues of newly discovered evidence, and a significant change in the law that would probably overturn his conviction or sentence. (Id. at 3.) Petitioner also indicated that he did not want the court to appoint counsel to represent him. (Id. at 2.) The trial court dismissed the proceedings on August 21, 2001, as Petitioner had not presented meritorious reasons for filing a successive, untimely petition. (Exh. P.) Petitioner filed a petition for review of that decision in the Arizona Court of Appeals, which was denied on June 5, 2002. (Exhs. Q, R.).

Over four years later, on July 28, 2004, Petitioner filed a third PCR notice raising a claim that the Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004), entitled him to a reduced sentence. (Exh. S.) The trial court dismissed Petitioner's notice on August 3, 2004, finding that he was not entitled to relief, as the Blakely decision did not apply retroactively to convictions, like Petitioner's, that had become final. (Exh. T.) Petitioner did not seek review of that decision.

Petitioner filed a fourth PCR notice on April 18, 2005, again asserting that Blakely applied to his sentences. (Exh. U.) The trial court, citing its previous ruling, dismissed Petitioner's notice. (Exh. V.) Petitioner filed a petition for review of that decision, which was denied summarily by the Arizona Court of Appeals on July 1, 2005. (Exhs. W, X.)

On May 15, 2012, nearly 7 years subsequent to his fourth PCR proceeding, Petitioner filed another petition for post-conviction relief, seeking relief based upon a claim that he was denied the right to self-representation at trial. (Exh. Y.) On May 25, 2012, the trial court dismissed the petition as untimely, as Petitioner's claim was not a claim that could be raised in an untimely or successive post-conviction relief proceeding. (Exh. Z.) On June 26, 2012, Petitioner filed a petition for review of that decision in the Arizona Court of Appeals. (Exh. AA.) On September 24, 2013, the appellate court denied review. (Exh. BB.)

On September 30, 2014, Petitioner filed a Petition for Habeas Corpus in the trial court. (Exh. CC.) In his state habeas petition, Petitioner claimed that his trial should have been severed from his co-defendant, that his charges should have been severed, that the trial court permitted an impermissibly suggestive in-court identification, that he received ineffective assistance of counsel, and that he is actually innocent. (Id.) On February 17, 2015, the trial court, treating the habeas petition as a notice of PCR, denied relief, finding that the claims were precluded in an untimely, successive PCR proceeding. (Exh. DD.) On June 11, 2015, Petitioner sought review in the Arizona Court of Appeals. (Exh. EE.) The appellate court granted review, but denied relief, in a Memorandum Decision on June 22, 2017. (Exh. FF; State v. Amarillas, 2017 WL 2686460 (Ariz. Ct. App. 6/22/2017)). The court held that the trial court properly treated Petitioner's habeas petition as a PCR notice, and that the trial court properly held that Petitioner's claims were not claims that could be raised in an untimely or successive PCR proceeding. (Id.)

HABEAS PROCEEDINGS

On February 12, 2018, Petitioner filed the instant habeas petition, in which he raises five claims. (Doc. 1.) In Ground One, Petitioner claims that his constitutional rights under the Sixth Amendment were violated when the trial court denied his request to represent himself; in Ground Two Petitioner claims that his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments were violated when the trial court denied his motions to sever; in Ground Three Petitioner claims that his constitutional rights under the Due Process Clause of the Fourteenth Amendment were violated through the impermissibly suggestive in-court identification; in Ground Four Petitioner claims that his constitutional rights under the Sixth and Fourteenth Amendments when he was denied effective assistance of trial and appellate counsel; and in Ground Five Petitioner claims actual innocence. (Id.) Respondents assert that Petitioner's habeas petition is untimely, and all of his claims are procedurally defaulted, and therefore should be denied and dismissed with prejudice. (Doc. 10.)

LEGAL ANALYSIS

I. Timeliness under the AEDPA.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides

"[T]he period of `direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition." Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A state petition that is not filed, however, within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). "When a postconviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414.

A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004), rev'd on other grounds sub nom; Evans v. Chavis, 546 U.S. 189 (2006). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition is not filed until later. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004). An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See Biggs, 339 F.3d at 1048; see also Cross v. Sisto, 676 F.3d 1172, 1179 (9th Cir. 2012) ("Petitioners are not entitled to statutory tolling between rounds of state [post-conviction] petitions.").

A post-conviction proceeding initiated after the statute of limitations has already run does not re-start the limitations period. See Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

A. Statutory Tolling.

Petitioner's convictions and sentenced were affirmed by the Arizona Court of Appeals on July 24, 1997. As Petitioner did not file a petition for review, his convictions became final 35 days later, on August 29, 1997, when the time for seeking review in the Arizona Supreme Court expired. See Ariz.R.Crim.P. 32.9(c)(1)(A) (petition for review due no later than 30 days after trial court decision); 1.3 (five days added when service is by mail). Thus, the AEDPA statute of limitations began to run on August 29, 1997, and ended on August 28, 1998. Although Petitioner's first PCR proceeding was filed on September 4, 1996, it was not "properly filed" as the trial court dismissed that proceeding as untimely, and thus Petitioner is not entitled to statutory tolling of the time period, from September 4, 1996, to July 18, 1997, while that proceedings was pending. "When a postconviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)." Pace, 544 U.S. at 414. Even if the proceedings were timely, Petitioner would not be eligible for tolling, as the proceedings were initiated and concluded before the statute of limitations period had begun.

Petitioner's next post-conviction filing, nearly five years later, and all subsequent PCR proceedings were all initiated after the statute of limitations had already expired2, and thus, do not toll the statute of limitations. His post-conviction proceeding was initiated after the statute of limitations has already run and therefore does not re-start the limitations period. See, Ferguson, 321 F.3d at 823. Additionally, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See Biggs, 339 F.3d at 1048; see also Cross, 676 F.3d at 1179 ("Petitioners are not entitled to statutory tolling between rounds of state [post-conviction] petitions."). Petitioner's habeas petition is thus untimely under the AEDPA statute of limitations by nearly 20 years.

B. Equitable Tolling.

The Ninth Circuit recognizes that the AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). Tolling is appropriate when "`extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." Id.; see Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Holland v. Florida, 130 S.Ct. 2549, 2562-65 (2010); see Pace, 544 U.S. at 418-19. Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007). Petitioner's burden of establishing entitlement to equitable tolling is a heavy one. Rubin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2014).

The circumstances in this case do not support a finding that Petitioner pursued his rights diligently or that extraordinary circumstances prevented him from filing a timely habeas petition. As the record demonstrates, Petitioner had until August 27, 1998, in which to file a timely petition for writ of habeas corpus with respect to his conviction or sentence, unless the time was tolled by a "properly filed" application for state post conviction relief. However, after Petitioner's convictions and sentences became final on August 27, 1998, Petitioner did initiate post-conviction proceeding until August 13, 2001, nearly 5 years later. Petitioner then chose to continue to seek post-conviction relief by filing subsequent petitions for another 14 years, all of which were dismissed as untimely or successive. Petitioner fails to proffer any reason why it took him multiple years to come forward in federal court with (1) his claim that there was insufficient evidence to support his conviction, or (2) his claim of "new evidence," which was in fact information available to Petitioner during his trial3. Thus, the Court concludes that this is not a case where Petitioner has been diligently pursuing his rights, and Petitioner has not described any extraordinary circumstance which prevented him from filing a timely habeas petition.

C. Actual Innocence.

Despite the Court finding that Petitioner has not been diligently pursuing his rights, Petitioner contends that the "actual innocence gateway" of Schlup v. Delo, applies to him and, as such, the statute of limitations should not apply to his claims for habeas relief.

In Lee v. Lampert,4 the Ninth Circuit held that a credible showing of "actual innocence" under Schlup, excuses the statute of limitations period established by the AEDPA. See Lee, 653 F.3d 929, 931 (9th Cir. 2011). "[A] petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits." Id. at 932. To pass through the Schlup gateway, a "petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327. This standard "permits review only in the `extraordinary' case, but it `does not require absolute certainty about the petitioner's guilt or innocence.'" House v. Bell, 547 U.S. 518, 538 (2006). The "petitioner must produce sufficient proof of his actual innocence to bring him `within the narrow class of cases . . . implicating a fundamental miscarriage of justice.'" Lee, 653 F.3d at 937 (quoting Schlup, 513 U.S. at 314-15). "The evidence of innocence must be `so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Id. (quoting Schlup, 513 U.S. at 316). As noted in Lee, "Schlup requires a petitioner `to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory, scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.'" Id. (quoting Schlup, 513 U.S. at 324). The habeas court considers all the evidence, both old and new, incriminating and exculpatory, admissible at trial or not, and based on the complete record, "the court makes a probabilistic determination about what reasonable, properly instructed jurors would do." Lee, 653 F.3d at 938 (internal quotations omitted).

1. Insufficiency of the Evidence Claim

In Petitioner's habeas petition and Reply brief he claims that he is innocent, arguing that the evidence presented at trial was "insufficient" because none of the witnesses identified him in court, or only identified him after improper suggestion by the prosecutor. Petitioner must, however, do more than argue that the facts presented at trial were insufficient to convict. Petitioner must support his innocence claim with new evidence. See, Lee, 653 F.3d at 938 ("to pass through the Schlup gateway, a petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.") (emphasis added). Lee specifically states

Id. (quoting Schlup) (emphasis added); see also id. at 945-46 (Kozinski, C.J., concurring). As such, Petitioner cannot meet the gateway actual innocence standard by merely alleging that there was insufficient evidence presented at trial to support a finding of guilt. Although Schlup's actual innocence gateway contemplates that the new evidence of innocence will be viewed in light of the evidence presented at trial, it is not simply another vehicle for challenging the evidence produced at trial.

Petitioner's assertion that there was insufficient evidence to convict him of the charges is, in any event, belied by the record. More than sufficient evidence was presented to support a finding that the three armed robberies were committed by the same two individuals, given the remarkable similarities. The three robberies were all of Subways (the second and third were of the same Subway), were all committed within one week, and were committed by a male and female, who were described similarly. They also involved a similar modus operandi: a gun or gun handle was brandished, money was demanded from the register and safe, the victims were instructed to lie on the floor as the robbers exited, and in the latter two robberies, the robbers demanded the victim's watch.

As to the identification of Petitioner during trial, one of the victim employees of the first Subway that was robbed, JB identified Petitioner in court. JB also recognized both Petitioner and his co-defendant as she had seen them shopping several times before the date of the robbery in the area of the Subway.

Although the victim of the second robbery, PM, did not identify Petitioner in court, PM did identify a watch seized from Petitioner upon his arrest as the watch taken from him during the robbery. Also, PM had picked Petitioner's photo out of a photo-line-up. PM also testified that the male robber came into the store carrying an ice cream cone. A witness who was working at a nearby Baskin and Robbins store, PD, identified both Petitioner and his co-defendant in court as having purchased ice cream from the store just prior to that robbery. In the third robbery, although victim CF did not identify Petitioner in court, she did identify him after viewing a store videotape of the crime.

Petitioner does not produce sufficient proof of his actual innocence to bring him within the narrow class of cases implicating a fundamental miscarriage of justice. Petitioner asserts that an affidavit from his co-defendant, in which she purportedly asserts that Petitioner was not the person who she was with when she committed the robberies, and evidence that another man with similar characteristics was in jail and being investigated for committing robberies with a female accomplice at the time of his trial, is evidence of his innocence. He does not provide a copy of the affidavit, or any indication that his co-defendant would be available and willing to testify on his behalf over 20 years later. Additionally, though sworn, affidavits are not convincing evidence of innocence because "the affiants' statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations." Herrera v. Collins, 506 U.S. 390, 417 (1993).

With respect to Petitioner's suggestion that another man in jail may have been responsible for the robberies, the only evidence he cites in support of this claim is trial testimony by a defense investigator, who testified that he interviewed an individual depicted in one of the photo-line-up pictures, and that this individual told him that he was in jail being investigated for armed robberies committed by a male and female suspect. This is not competent evidence, much less persuasive evidence of Petitioner's innocence of the charges.

CONCLUSION

Having determined that Petitioner's claims in his habeas petition are untimely, that Petitioner is not entitled to equitable tolling, and that Petitioner has not demonstrated that a fundamental miscarriage of justice occurred, the Court will recommend that Petitioner's habeas petition be denied and dismissed with prejudice.

IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) DENIED and DISMISSED WITH PREJUDICE;

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be 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.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.