Opinion
CV-22-01193-PHX-DJH (MTM)
06-14-2023
Kirk Douglas Ball, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
Petitioner Kirk Douglas Ball has filed a Second Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. 9.
I. SUMMARY OF CONCLUSION
In May 2006, Petitioner pled no contest to charges of kidnapping, attempted sexual assault and attempted kidnapping. On July 7, 2022, Petitioner mailed a petition for a writ of habeas corpus. Doc. 1. Because the petition is untimely by over fourteen years and Petitioner is not entitled to statutory or equitable tolling, the Court recommends the petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction and Sentencing
On May 19, 2006, Petitioner pled no contest to kidnapping, attempted sexual assault and attempted kidnapping. Doc. 13-1 at 16. The presentence report summarized the facts as follows:
A factual basis for the plea may be established by a pre-sentence report. State v. Varela, 587 P.2d 1173, 1175 (Ariz. 1978).
On February 17, 2005, twenty-one-year-old [victim] called police because she had just escaped from someone who kidnapped and attempted to rape her. She told police she was walking on a city street when [Petitioner] approached her in his white Jeep Cherokee and offered her a ride . . . he told her he had a gun and that if she did not get in the vehicle he would shoot her[]. She entered his vehicle. [Petitioner] began driving through a neighborhood and said several times that he was going to rape her and then kill her . . . When he attempted to make her perform oral sex on him, she grabbed the keys and remote and made the vehicle alarm sound. The struggle continued and she scratched his face. She was able to unlock the door and escape . . . .
On March 3, 2005, twenty-year-old [second victim] was walking to work at approximately 5:00 a.m. when [Petitioner] approached her in his vehicle and offered her a ride. She turned him down, and he drove off. He approached her a second time, asked her again if she wanted a ride, and she again said no. He then pulled into a nearby parking lot, turned off the lights on his vehicle, and yelled to her “get in the car, I have a gun[].” She became extremely fearful because she thought he was going to shoot her in the back. She began calling 911 with her cell phone when a police car approached her and asked if she needed assistance . . . [Petitioner] was contacted and detained and was identified by the victim as the person who threatened her.Id. at 22. On June 19, 2006, Petitioner was sentenced to consecutive terms of imprisonment totaling 25 years followed by lifetime probation. Id. at 29.
B. Post-Conviction Relief
Between 2007 and 2021, Petitioner initiated seven proceedings for post-conviction relief (“PCR”). Doc. 13-1 at 37-251. The PCR Court dismissed each proceeding for being untimely or successively filed. Id.
i. First PCR Proceeding
On June 7, 2007, Petitioner mailed a PCR notice. Doc. 13-1 at 37-40. Petitioner argued the failure to file a timely PCR notice was without fault on Petitioner's part because he was under the influence of psychotropic medications and he was actually innocent. Id. at 39. The PCR Court dismissed the PCR proceeding as untimely because Petitioner failed to file the PCR notice within 90 days of sentencing pursuant to Arizona Rule of Criminal Procedure 32.4(a). Id. at 58. The PCR Court found Petitioner did not show the untimely filing should be excused and did not raise claims that can be decided in an untimely PCR proceeding. Id. Petitioner did not file a petition for review to the Arizona Court of Appeals.
ii. Second PCR Proceeding
On January 7, 2008, Petitioner mailed a second PCR notice. Id. at 61-64. The PCR Court dismissed the PCR notice as untimely and successive, finding Petitioner waived his arguments by failing to raise them in a timely PCR proceeding. Id. at 66.
iii. Third PCR Proceeding
On April 1, 2008, Petitioner mailed a third PCR notice and a PCR petition. Id. at 69-72. The PCR Court dismissed the notice and petition for being untimely filed. Id. at 84. On June 4, 2008, Petitioner filed a motion for reconsideration. Id. at 87. On August 14, 2008, Petitioner filed a second motion for reconsideration. Id. at 101. On November 10, 2009, the PCR Court denied the motions for reconsideration. Id. at 134.
iv. Fourth PCR Proceeding
On January 20, 2012, Petitioner filed a fourth PCR notice. Id. at 136-39. On January 27, 2012, the PCR Court dismissed the notice for being untimely and successively filed. Id. at 143. On May 24, 2012, Petitioner filed a petition for review to the Arizona Court of Appeals. Id. at 147. On June 5, 2012, the Arizona Court of Appeals dismissed the petition for review. Id. at 159.
v. Fifth PCR Proceeding
On June 20, 2012, Petitioner mailed a fifth PCR notice. Id. at 163-67. On July 10, 2012, the PCR Court dismissed the PCR proceeding as untimely and successive. Id. at 170.
vi. Sixth PCR Proceeding
On December 24, 2014, Petitioner mailed a sixth PCR notice and a PCR petition. Id. at 173-180. On February 12, 2015, the PCR Court dismissed the PCR proceeding as untimely and successive. Id. at 182. On April 10, 2015, Petitioner filed a petition for review to the Arizona Court of Appeals. Id. at 187. On April 29, 2015, the Arizona Court of Appeals dismissed the petition for review. Id. at 192.
vii. Seventh PCR Proceeding
On September 13, 2021, Petitioner filed an “Unconstitutional Application of Law in Accordance with the United States Constitution.” Id. at 204-13. On October 20, 2021, the PCR Court denied the “Unconstitutional Application of Law in Accordance with the United States Constitution” without prejudice. Id. at 215. On November 2, 2021, Petitioner filed a “Motion to dismiss charge of 04, A04 Attempted Kidnapping,” and a “Motion to change sentencing to new Directive of Probation to conform to A.R.S. 13-902.” Id. at 21724. On November 5, 2021, Petitioner filed a PCR petition. Id. at 226-46. On March 25, 2022, the PCR Court dismissed the PCR proceeding as untimely and successive. Id. at 24851. On March 30, 2022, Petitioner filed a petition for review to the Arizona Court of Appeals. Id. at 262-98. On October 25, 2022, the Arizona Court of Appeals accepted review and denied relief. Id. at 303-04.
III. PETITION FOR A WRIT OF HABEAS CORPUS
On July 7, 2022, Petition filed a “Special Action” in federal court. Doc. 1. On August 2, 2022, the Court, construing the “Special Action” as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, dismissed the petition with leave to amend. Doc. 3. On August 24, 2022, Petitioner filed an Amended Petition. Doc. 6. On September 7, 2022, the Court dismissed the Amended Petition with leave to amend. Doc. 8. On September 16, 2022, Petitioner filed a Second Amended Petition raising three grounds for relief. Doc. 9. In an order dated October 11, 2022, the Court dismissed Ground Three and required Respondents to answer Grounds One and Two of the Second Amended Petition. Doc. 10 at 1-2. As stated in the Court's Order, Petitioner argues the following in Grounds One and Two:
Under the “prison mailbox rule,” a habeas petition is deemed filed on the day the petitioner delivers it to prison authorities for mailing. Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001) (citation omitted). Petitioner stated the petition was “submitted” on July 7, 2022. Doc. 1 at 5.
In Ground One, Petitioner asserts that his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments were violated because his counsel was ineffective. Petitioner claims
his “voice was silenced and never heard,” and his counsel never addressed any of his concerns “before the court and on the record.” Specifically, Petitioner contends that a result of his counsel's ineffectiveness, “two different DR numbers were placed illegally on the record,” and the grand jury “did not hear the two different DR numbers.” Petitioner also asserts that because of counsel's failure to raise the issue, the State did not have to obtain a second indictment that did not refer to “two separate matters.” Thus, Petitioner asserts, he was subject to double jeopardy with respect to the charges for kidnapping and attempted kidnapping, which could not be joined together unless the grand jury was “aware of the joinder of these two cases.”
In Ground Two, Petitioner asserts that his rights under the Sixth and Fourteenth Amendments were violated because the State purposely joined two DR numbers so that Petitioner would have an “alle[]ged prior,” which the State did to enhance the range of Petitioner's sentence. Petitioner contends the State joined the two cases without the grand jury's approval. Petitioner further claims that his counsel did not “fight for [Petitioner's] defense.” Petitioner asserts that when he “first attempted to argue a point,” the judge “shut him up” and told him that his attorney “would do as the court allowed.” Petitioner claims this rendered his counsel ineffective.Doc. 10 at 2-3.
IV. TIMELINESS
A. Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), this Court may review petitions for a writ of habeas corpus from individuals held in custody under a statecourt judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). The AEDPA imposes a one-year statute of limitations for state prisoners to file habeas petitions. 28 U.S.C. § 2244(d); Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1059 (9th Cir. 2007). The timeliness of a habeas petition is a threshold issue for the Court to resolve. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). Under AEDPA, the one-year limitation runs from “the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Where a petitioner pleads guilty, a PCR proceeding is “of-right” rather than collateral review, and the statute of limitations does not begin to run until “the conclusion of the Rule 32 of-right proceeding and review of that proceeding.” Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). “To bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to the Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of his or her intent to file a Petition for Post-Conviction Review.” Id. at 715 (citing Ariz. R. Crim. P. 32.4(a)).
B. The Petition is Untimely
Petitioner was sentenced on June 19, 2006. Doc. 13-1 at 29. A PCR notice was required to be filed within 90 days of sentencing, on September 18, 2006. See Ariz. R. Crim. P. 33.4(b)(3)(A). Petitioner did not file a PCR notice within that time and thus Petitioner's conviction became final on September 18, 2006. See 28 U.S.C. § 2244(d)(1)(A). The AEDPA statute of limitations began running on September 19, 2006, and expired one year later, on September 18, 2007. See id.; see also Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (excluding the day the conviction became final from calculation of the AEDPA statute of limitations).
Because the 90-day period concluded on Sunday, September 17, 2006, Petitioner's PCR notice was due on Monday, September 18, 2006. See Ariz. R. Crim. P. 1.3(a)(2) (where the last day is a weekend or holiday, the time period ends on the next day).
Petitioner filed a habeas petition on July 7, 2022, over fourteen years after the expiration of the AEDPA limitations period. Doc. 1. The habeas petition is thus untimely filed.
C. Statutory Tolling
The AEDPA one-year limitations period is statutorily tolled for the period “during which a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). An untimely post-conviction petition is not “properly filed” and does not toll the statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 410, 414 (2005) (“When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”) (citations and internal quotation marks omitted); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under the AEDPA's tolling provision). A PCR proceeding filed after the running of the AEDPA statute of limitations does not serve to restart the limitations period. See Ford v. Gonzalez, 683 F.3d 1230, 1237 n.4 (9th Cir. 2012).
Petitioner is not entitled to statutory tolling of the AEDPA limitations period. Petitioner mailed the first PCR notice on June 7, 2007, approximately one year after sentencing. Doc. 13-1 at 37. The PCR court found the PCR notice was untimely filed because Petitioner did not file the notice within 90 days of sentencing. Id. at 58. Because an untimely PCR proceeding is not “properly filed,” Petitioner's first PCR notice did not serve to toll the AEDPA statute of limitations period. Pace, 544 U.S. at 410, 414.
Petitioner's six additional PCR notices were filed between 2008 and 2021, after the expiration of the AEDPA limitations period on September 18, 2007. Doc. 13-1 at 37-251. The six additional PCR proceedings did not restart the expired limitations period. See Ford, 683 F.3d at 1237 n.4. Moreover, the PCR court ruled the PCR proceedings were untimely and successive. Doc. 13-1 at 37-251; Pace, 544 U.S. at 410, 414. Therefore, Petitioner is not entitled to statutory tolling.
D. Equitable Tolling
Courts have equitably tolled AEDPA's statute of limitations in certain circumstances. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). Equitable tolling applies if a petitioner shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Ford, 683 F.3d at 1237 (internal quotations and citations omitted). “[Extraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time and the extraordinary circumstances [must be] the cause of the prisoner's untimeliness.” Id. (citation omitted). Petitioner bears the burden of establishing equitable tolling's requirements. Pace, 544 U.S. at 418.
Petitioner has not alleged or shown that extraordinary circumstances prevented him from filing a timely habeas petition or that he pursued his rights diligently. Although he filed numerous PCR notices in state court, Petitioner did not file a federal habeas petition until sixteen years post-sentencing. Docs. 1; 13-1 at 29. Petitioner makes no argument that his untimely filing should be excused. Therefore, Petitioner has not shown he is entitled to equitable tolling. See Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness.”). Petitioner has not shown that he is entitled to statutory or equitable tolling to excuse the untimely filing of the habeas petition.
V. CONCLUSION
The Court concludes that Petitioner's habeas petition is untimely without excuse. The record is sufficiently developed, and the Court finds an evidentiary hearing is unnecessary for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS RECOMMENDED the Petition (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENED a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.