Opinion
No. CV-17-00923-PHX-SPL (ESW)
10-25-2018
Edgar Contreras, Petitioner, v. Charles Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Edgar Contreras' ("Petitioner") "Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus" (the "Petition") (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition as untimely.
I. BACKGROUND
In 2002, a Maricopa County Grand Jury indicted Petitioner on one count of first degree murder and two counts of attempted first degree murder. (Bates Nos. 1-3). Petitioner entered into a plea agreement in which Petitioner pled guilty to first degree murder. (Bates Nos. 4-6). The trial court accepted Petitioner's guilty plea. (Bates Nos. 7-8). On September 9, 2002, the trial court sentenced Petitioner to life with the possibility of parole after 25 years. (Bates Nos. 19-22).
On January 24, 2003, Petitioner filed a Notice of Post-Conviction Relief ("PCR"), which the trial court dismissed as untimely. (Bates Nos. 25-29). Petitioner filed a second PCR Notice in November 2016, which the trial court also dismissed as untimely. (Bates Nos. 30-35). In June 2017, the trial court dismissed Petitioner's third PCR Notice as untimely and successive. (Bates Nos. 36-42). Petitioner filed a Petition for Review concerning the trial court's dismissal of the third PCR Notice. (Bates Nos. 43-52). In their Limited Answer, Respondents indicate that the Petition for Review remains pending. (Doc. 25-1 at 5).
The PCR Notice was docketed by the trial court's Clerk of Court on January 30, 2003. (Bates No. 25). Pursuant to the prison mailbox rule, Respondents concede that the filing date of the PCR Notice was January 24, 2003—the date Petitioner signed and delivered the Notice to prison authorities for filing. (Bates No. 28).
On March 28, 2017, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief.
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner must file his or her federal habeas petition within one year of the latest of:
A. 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); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
B. The date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the petitioner was prevented from filing by the State action;
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) ("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases."). Yet equitable tolling is applicable only "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. The Statute of Limitations Began Running on December 10, 2002
In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's 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). For purposes of the limitations period, "[f]inal judgment in a criminal case means sentence. The sentence is the judgment." Burton v. Stewart, 549 U.S 147, 156 (2007) (internal quotation marks and citation omitted); see also Ferreira v. Secretary, Dept. of Corrections, 494 F.3d 1286 (11th Cir. 2007) (holding that for purposes of AEDPA's statute of limitations, a petitioner's resentencing judgment is the relevant one, even if the habeas petition is directed only to earlier conviction).
Typically "direct review" means a defendant's direct appeal following his or her convictions and sentencing. But under Arizona law, a defendant in a non-capital case who pleads guilty waives his or her right to a direct appeal. See ARIZ.REV.STAT. § 13-4033(B). A plea-convicted defendant, however, is entitled to a Rule 32 of-right proceeding. See Ariz. R. Crim. P. 32.1 and 32.4. Under Ninth Circuit case law, an Arizona defendant's Rule 32 of-right proceeding is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A). See Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007). The Ninth Circuit explained that "treating the Rule 32 of-right proceeding as a form of direct review helps make the Arizona Constitution's guarantee of 'the right to appeal in all cases' a functioning reality rather than a mere form of words." Summers, 481 F.3d at 717. Therefore, when an Arizona petitioner's Rule 32 proceeding is of-right, AEDPA's statute of limitations does not begin to run until the conclusion of review or the expiration of the time for seeking such review. See id.
Here, Petitioner was sentenced on September 9, 2002. (Bates Nos. 19-22). Pursuant to Rule 32.4 of the Arizona Rules of Criminal Procedure, the deadline for filing a PCR notice in an of-right PCR proceeding is "ninety days after the entry of judgment and sentence . . . ." Here, ninety days from the September 9, 2002 judgment is December 8, 2002. However, because December 8, 2002 was a Sunday, the deadline for filing an of-right PCR notice expired on Monday, December 9, 2002. See Ariz. R. Crim. P. 1.3(a) (stating that in computing time periods, "[t]he last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which case the period shall run until the end of the next day which is neither a Saturday, Sunday nor a legal holiday."). Petitioner did not file a PCR notice within this timeframe. Therefore, Petitioner's judgment of conviction became final on December 9, 2002 and the limitations period commenced on December 10, 2002. Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a habeas petition expired on December 9, 2003, rendering the March 2017 Petition untimely by many years. Summers, 481 F.3d at 717; see Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (AEDPA's statute of limitations commences upon the expiration of the time for seeking review of petitioner's judgment in a state's highest court); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying the "anniversary method" of Rule 6(a) of the Federal Rules of Civil Procedure to calculate the expiration date of AEDPA's one-year statute of limitations).
1. Statutory Tolling Does Not Apply
A statutory tolling analysis under AEDPA begins by determining whether the collateral review petition was "properly filed." This is because statutory tolling does not apply to collateral review petitions that are not "properly filed." Pace, 544 U.S. at 417; 28 U.S.C. § 2244(d)(2). A collateral review petition is "properly filed" when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th Cir. 2014) (court looked to Nevada state filing requirements in determining whether habeas petitioner's PCR petition was a "properly filed" application that is eligible for tolling). This includes compliance with filing deadlines. An untimely state collateral review petition is not "properly filed." Pace, 544 U.S. at 417 (holding that "time limits, no matter their form, are 'filing' conditions," and that a state PCR petition is therefore not "properly filed" if it was rejected by the state court as untimely).
Here, the trial court dismissed all three of Petitioner's PCR Notices as untimely. Further, as Respondents correctly note (Doc. 25-1 at 7), even if the first PCR proceeding statutorily tolled the limitations period, Petitioner waited almost thirteen years before filing the second PCR Notice. Once the statute of limitations has run, subsequent collateral review petitions do not "restart" the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, Petitioner is not entitled to statutory tolling.
2. Equitable Tolling Does Not Apply
It is a petitioner's burden to establish that equitable tolling is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) ("Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate."). As mentioned, a petitioner seeking equitable tolling must establish that: (i) he or she has been pursuing his or her rights diligently and (ii) that some extraordinary circumstances stood in his or her way. A petitioner must also show that the "extraordinary circumstances" were the "but-for and proximate cause of his [or her] untimeliness." Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001) (per curiam); see also Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., 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.").
In the Petition, Petitioner offers the following explanation for failing to initiate this action within the limitations period:
I was told I couldn't appeal by the para legal [sic]. I have no knowledge of the law. There is no para legal [sic] assigned to this unit. The prison resource library is open 8 hours a month and only accepts 10 people per building a week the request[s] are enforced in a random manner so I have had no access to the library.(Doc. 1 at 11). As the Ninth Circuit has explained, the lack of inmate assistance is not an extraordinary circumstance "given the vicissitudes of prison life." Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (rejecting petitioner's argument that delay in filing habeas petition was justified due to petitioner's "pro se status, a prison library that was missing a handful of reporter volumes, and reliance on helpers who were transferred or too busy to attend to his petitions"). There is no indication in the record that the circumstances of Petitioner's incarceration made it "impossible" for Petitioner to timely file a federal habeas petition. Id. (finding that equitable tolling did not apply where there was "no indication in the record that [circumstances] made it 'impossible' for [prisoner] to file on time"); Norwood v. Lockyer, 390 F. App'x 762, 763 (9th Cir. 2010) ("limited law library access, being moved to different cells, temporary lockdowns" "do not show circumstances that are out of the ordinary for prison life or that would have made it 'impossible' to file on time").
Further, ignorance of the law is insufficient to warrant equitable tolling. See Johnson, 544 U.S. at 311 ("[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"); Rasberry, 448 F.3d at 1154 ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.").
Johnson involved a collateral review proceeding filed by a federal prisoner under 28 U.S.C. § 2255. Section 2254 petitions and Section 2255 motions are treated the same for purposes of determining whether equitable tolling applies. United States v. Battles, 362 F.3d 1195, 1196-97 (9th Cir. 2004) ("The two sections have the same operative language and the same purpose. We fail to see any reason to distinguish between them in this respect.").
The undersigned finds that Petitioner has failed to show the existence of "extraordinary circumstances" that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a "prisoner must show that the 'extraordinary circumstances' were the cause of his untimeliness"). Accordingly, the undersigned does not find that equitable tolling applies in this case. The undersigned finds that the Petition (Doc. 1) is untimely. Finally, Petitioner makes no claim that the Court should apply the "actual innocence gateway" to excuse the untimeliness of the Petition. The undersigned recommends that the untimely Petition (Doc. 1) be dismissed with prejudice.
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the "actual innocence gateway" to federal habeas review that was applied to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518 (2006) extends to petitions that are time-barred under AEDPA. Petitioner does not proffer any new reliable evidence to support actual innocence. See Schlup, 513 U.S. at 324 ("To be credible, such a claim requires 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.").
Moreover, it is unclear "whether the Schlup actual innocence gateway always applies to petitioners who plead guilty." Smith v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir. 2007) ("We are aware of a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas. . . . For purposes of our analysis, however, we assume without deciding that the actual innocence gateway is available to [the plea-convicted habeas petitioner]."). Decisions in which the Ninth Circuit or United States Supreme Court have considered gateway claims of actual innocence in a plea context involved subsequent case law that arguably rendered the defendant's acts non-criminal. See, e.g. Bousley, 523 U.S. at 621-23; Vosgien v. Persson, 742 F.3d 1131, 1134-35 (9th Cir. 2013); United States v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).
IV. CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that the Petition (Doc. 1) be 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 dismissal of the Petition is justified by a plain procedural bar.
This Report and 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 fourteen days from the date of service of a copy of this Report and 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 fourteen 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.
Dated this 25th day of October, 2018.
/s/_________
Eileen S. Willett
United States Magistrate Judge