Opinion
CV-22-01244-PHX-DJH (JZB)
03-17-2023
Donald Marvin Collins, Petitioner, v. Mark Brnovich, et al., Respondents.
REPORT AND RECOMMENDATION
John Z. Boyle, United States Magistrate Judge
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
On July 12, 2022, Petitioner Donald Marvin Collins, who is confined in the Arizona State Prison Complex-Tucson, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) On September 29, 2022, the Court dismissed the Petition and gave Petitioner 30 days to file an amended petition that cured the deficiencies identified in the Order. (Doc. 6.) On October 5, 2022, Petitioner filed an amended § 2254 Petition. (Doc. 7.)
Under the “mailbox rule,” a document filed by a pro se prisoner is deemed “filed” the day the prisoner delivered it to a prison official for mailing. Stewart v. Cate, 757 F.3d 929, 933 n.3 (9th Cir. 2014). Petitioner signed his Petition on July 12, 2022. (Doc. 1 at 1.) The Court presumes Petitioner delivered it to prison officials for mailing that same day. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (“We assume that [petitioner] turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.”).
I. Summary of Conclusion.
Petitioner was convicted in Maricopa County Superior Court, case #CR 2009048694-001, of armed robbery and was sentenced to a 17-year term of imprisonment. In his amended Petition, Petitioner raises four grounds for relief. However, the habeas petition is untimely by over nine years and Petitioner is not entitled to equitable tolling. Accordingly, the Court will recommend that the amended Petition be denied and dismissed with prejudice.
II. Background.
A. Conviction & Sentencing.
On April 12, 2010, Petitioner pleaded guilty in Maricopa County Superior Court, case #CR 2019-048694-001, to one count of armed robbery, a class two dangerous felony. (Doc. 11-1, Exhs. A, B.) Petitioner was sentenced to a 17-year term of imprisonment on June 3, 2010. (Doc. 11-1, Exh. C.)
B. Post-Conviction Review.
On August 25, 2010, Petitioner filed a notice of post-conviction relief (PCR). (Doc. 11-1, Exh. D.) Thereafter, the superior court appointed counsel to represent Petitioner, (Doc. 11-1, Exh. E), and Petitioner filed a PCR petition on August 26, 2011 (Doc. 11-1, Exh. F). On April 6, 2012, the superior court denied the PCR petition. (Doc. 11-1, Exh. H.) The record reflects that Petitioner did not seek review of the superior court's decision, but rather, he sent the superior court a letter dated September 26, 2012, requesting information regarding the status of his case. (Doc. 11-1, Exh. I.)
Almost nine years later, on September 3, 2021, Petitioner filed a document entitled “Writ of Habeas Corpus” in the superior court. (Doc. 11-1, Exh. J.) The superior court construed the document as a second PCR petition and dismissed the proceeding on July 13, 2022, finding the petition “untimely by more than nine years.” (Doc. 11-1, Exh. K at 2.) According to the record, Petitioner never filed a petition for review of the superior court's decision.
III. Amended Petition for Writ of Habeas Corpus.
In his amended Petition for Writ of Habeas Corpus, Petitioner raises four grounds for relief. As summarized by the Court in its November 22, 2022 screening Order, Petitioner alleges the following:
In Ground One, Petitioner alleges that his sentence was excessive, in violation of the Sixth and Fourteenth Amendments and that he received ineffective assistance of counsel in violation of the Sixth Amendment. In Ground Two, Petitioner claims his due process rights were violated when evidence was destroyed. In Ground Three, Petitioner asserts his Fifth, Sixth, and Fourteenth Amendment rights were violated during sentencing. In Ground Four, Petitioner alleges his Sixth Amendment rights were violated when he was coerced into accepting an excessive plea.(Doc. 8.) On January 3, 2023, Respondents filed a Limited Answer arguing the amended Petition should be denied and dismissed as untimely and because Petitioner's grounds for relief are procedurally defaulted without excuse. (Doc. 11.) Petitioner did not file a reply despite having the opportunity to do so.
In its screening Order, the Court stated that Petitioner may file a reply within 30 days from the date of service of the answer. (Doc. 8.) The record reflects that the Answer was served on Petitioner by mail on January 3, 2023. No reply has been filed and the time for doing so has expired.
IV. Timeliness Under the AEDPA.
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005); see 28 U.S.C. § 2244(d)(1). In most cases, the limitations period runs from the date “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); see Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). In a criminal case, “[t]he sentence is the judgment.” Burton v. Stewart, 549 U.S. 147, 156 (2007) (quotation marks and citation omitted). “‘[A] properly filed application for State post-conviction or other collateral review' tolls AEDPA's statute of limitations for the pendency of the state court proceedings.” Curiel v. Miller, 830 F.3d 864, 868 (9th Cir. 2016) (quoting 28 U.S.C. § 2244(d)(2)). To toll the statute, the application must have been “‘properly filed,'” meaning that it complied with “the applicable laws and rules governing filings,” including “time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). “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). To qualify for equitable tolling, the petitioner must establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418.
The limitations period may also be triggered by other events not relevant here. See 28 U.S.C. §§ 2244(d)(1)(B) (state-created impediment to filing), (d)(1)(C) (newly recognized constitutional right), (d)(1)(D) (when the basis for a claim became apparent).
V. Discussion.
The Court finds that Petitioner's amended Petition is untimely. Petitioner pleaded guilty and was sentenced to a 17-year term of imprisonment on June 3, 2010, (Doc. 11-1, Exh. C), thereby waiving his right to a direct appeal. See Gelleh v. Shinn, No. CV-18-04944-PHX-NVW (ESW), 2020 WL 3130418, at *2 (D. Ariz. May 14, 2020) (“[U]nder Arizona law, a defendant in a non-capital case who pleads guilty waives his or her right to a direct appeal.” (citing A.R.S. § 13-4033.B)), adopted by 2020 WL 3129428 (D. Ariz. June 12, 2020). Petitioner, nonetheless, could obtain review of his conviction through an of-right proceeding under Ariz. R. Crim. P. 32, which “is a form of direct review” for purposes of 28 U.S.C. § 2244(d)(1)(A). Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007); see Ariz. R. Crim. P. 32.1 (“A defendant who pled guilty or no contest ... may file an of-right notice of post-conviction relief.”). Petitioner did so by initiating PCR proceedings on August 25, 2010. (Doc. 11-1, Exh. D.) However, Petitioner's conviction was upheld when the superior court denied his PCR petition on April 6, 2012. (Doc. 11-1, Exh. H.) Petitioner then had 30 days from that date -- or until May 7, 2012 -- to seek review by the Arizona Court of Appeals. See Ariz. R. Crim. P. 32.9(c)(1)(A) (“No later than 30 days after the entry of the trial court's final decision on a petition or a motion for rehearing, an aggrieved party may petition the appropriate appellate court for review of the decision.”). Petitioner failed to do so and, thus, his conviction became final on May 8, 2012. See Gonzalez, 565 U.S. at 134 (stating that if a petitioner does not appeal to the “State's highest court,” his judgment becomes final “when his time for seeking review with the State's highest court expired”). Petitioner's habeas petition was due one year later - on May 8, 2013. See 28 U.S.C. § 2244(d)(1)(A). Accordingly, the habeas petition filed on July 12, 2022, is untimely by over nine years.
Effective January 1, 2020, Rule 32 was divided into two new rules based on whether a defendant was convicted at trial (new Rule 32) or by plea (new Rule 33). Ariz. Sup. Ct. Order No. R-19-0012. The new rules do not differ substantively from former Rule 32. See generally State v. Mendoza, 249 Ariz. 180, 182 n.1 (App. 2020). Any references to Rule 32 in this Report are to the pre-amendment version unless otherwise noted.
Because the 30th day fell on a weekend, the last day for Petitioner to file his petition for review would have been Monday, May 7, 2012.
Petitioner's commencement of his second PCR proceeding on September 3, 2021, did not toll the limitations period. The proceedings were filed after the limitations period had already expired, and, therefore, did not toll the limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the [federal 1-year] limitations period that has ended before the state petition was filed.”). Furthermore, the superior court dismissed the PCR proceeding, finding the petition “untimely by more than nine years.” (Doc. 11-1, Exh. K at 2.) Thus, the PCR petition was not “properly filed” under 28 U.S.C. § 2244(d)(2). See, e.g., Pace, 544 U.S. at 414-17; Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005) (recognizing and applying Pace).
Petitioner does not qualify for equitable tolling. Petitioner fails to argue any ground for equitable tolling in his amended Petition and he never filed a reply to Respondents' Answer. Petitioner simply fails to establish, much less address, that has been diligently pursuing his rights, or assert that some extraordinary circumstance prevented him from filing a timely habeas petition. And, although Petitioner mentions a general inability to articulate his legal proceedings due to a lack of education, a petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”). Therefore, the habeas petition is untimely without excuse and Petitioner not entitled to any period of statutory or equitable tolling.
VI. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Proceedings, 28 U.S.C. § 2254. The district court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made that showing here. Therefore, the Court recommends that a certificate of appealability be denied.
VII. Conclusion.
Because the amended Petition is untimely and Petitioner is not entitled to statutory or equitable tolling, IT IS RECOMMENDED that the amended Petition for Writ of Habeas Corpus (Doc. 7) be denied and dismissed with prejudice;
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 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); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to file timely 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 to file timely objections 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 or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.