Opinion
CV 23-00689-PHX-DLR (DMF)
07-12-2023
Carlos Garcia Delgado, Petitioner, v. Ryan Thornell, et al., Respondents.
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine, United States Magistrate Judge
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 4 at 4)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-23-00689-PHX-DLR (DMF).
Petitioner Carlos Garcia Delgado (“Petitioner”), who is confined in the Arizona State Prison Complex in Kingman, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) on April 21, 2023. (Doc. 1)
The Petition was docketed by the Clerk of Court on April 24, 2023. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on April 21, 2023. (Id. at 11) This Report and Recommendation uses April 21, 2023, as the operative filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
On May 5, 2023, the Court dismissed Ground One of the Petition for failure to “include a statement that the Petitioner is in custody in violation of the Constitution or the laws or treaties of the United States.” (Doc. 4 at 2-3) The Court ordered Respondents to answer Ground Two of the Petition. (Id.)
On June 12, 2023, Respondents filed their Limited Answer to Ground Two of the Petition. (Doc. 8) On June 23, 2023, Petitioner timely filed a reply. (Doc. 9)
See footnote 2, supra.
For the reasons set forth below, it is recommended that the Petition (Doc. 1) be dismissed with prejudice as untimely and that a certificate of appealability be denied.
I. STATE COURT PROCEEDINGS
In Maricopa County Superior Court case number CR2015-130220, Petitioner plead guilty with a plea agreement resulting in a 17-year term of imprisonment for felony sexual conduct with a minor and lifetime supervised probation for two felony attempted child molestation convictions. (Doc. 8-1 at 12-15, 17-18, 20-25; Doc. 8-3 at 3-26, 28-58) Petitioner was represented by counsel in the trial court proceedings. (Id.) Petitioner's sentencing took place on July 20, 2018. (Doc. 8-1 at 20-25; Doc. 8-3 at 28-58)
Petitioner timely filed a notice of post-conviction relief (“PCR notice”) in the superior court in which Petitioner requested that counsel be appointed. (Doc. 8-1 at 27-29, 31) Subsequently, Petitioner's appointed counsel filed a notice stating that counsel had reviewed the record, transcripts, and trial counsel's file, and had consulted with Petitioner, but had been unable find a colorable claim to raise in an of-right PCR petition. (Id. at 3842; see also id. at 34-36) Thereafter, Petitioner timely filed a pro se PCR petition. (Id. at 47 to 107) On February 12, 2020, the superior court dismissed the PCR petition without a hearing. (Id. at 109-110) The superior court found that Petitioner waived claims one through four and six by his guilty plea, that Petitioner's claim seven failed to state a claim, and that Petitioner's claim eight was moot. (Id.) The superior court also found that Petitioner's claim five of ineffective assistance of counsel failed to assert a colorable claim as a matter of law. (Id. at 110) On March 27, 2020, the superior court denied Petitioner's motion for reconsideration. (Id. at 118; see also id. at 112-16) Petitioner did not file a petition for review to the Arizona Court of Appeals. (Doc. 8 at 2, 4; Doc. 8-2 at 113, 125)Over a year and a half later, in December 2021, Petitioner filed a second PCR proceedings detailing the grounds for requesting relief from the judgment and attaching pertinent exhibits. (Doc. 8-2 at 3-111) On May 3, 2022, the superior court dismissed Petitioner's second PCR proceedings because Petitioner's claims were waived by Petitioner's guilty plea and the omission of such claims from his previous PCR petition. (Id. at 113-114) Petitioner filed a petition for review with the Arizona Court of Appeals. (Id. at 116-122) The court of appeals denied review because of Petitioner's failure to comply with state procedural rules and because of Petitioner's failure to present any argument in support of his petition for review. (Id. at 124-126, 128-130)
The filing date is the operative date of the superior court's ruling. See Ariz. R. Crim. P. 1.3(c).
The superior court mislabeled claim 6 as claim 5 in its order. (Doc. 8-1 at 60-63; 109-10)
Also noteworthy is that a petition for review filed in the Arizona Court of Appeals is usually reflected in the superior court's docket. Here, the superior court docket does not reflect a petition for review to the court of appeals pertaining to the March 27, 2020, denial of the motion for reconsideration or otherwise regarding Petitioner's first PCR proceedings. See https://perma.cc/Y4CV-M87T (last accessed 7/12/2023).
Respondents inaccurately describe these second PCR proceedings as having been filed “[t]en months after the state PCR court's [sic] dismissed” Petitioner's first PCR proceedings. (Doc. 8 at 4)
See also: https://perma.cc/Y4CV-M87T (last accessed 7/12/2023).
II. THESE HABEAS PROCEEDINGS
Petitioner filed his pro se Petition on April 21, 2023. (Doc. 1) In his Petition, Petitioner names Ryan Thornell as Respondent and the Arizona Attorney General as an Additional Respondent. (Id.) The Petition asserts two grounds for relief. (Id.) Petitioner designates Ground One as “Manifest Injustice, I.A.C. claims” and states that since 2019, he has been demonstrating that “the alle[]ged information . . . provided to the grand jury” did not match the discovery provided to him, and he has repeatedly requested that the state release the evidence to his defense attorney. (Id. at 6) In Ground Two, Petitioner contends that his rights under the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments were violated and that he was denied due process and equal protection regarding the “reasons for probable cause” and because he was “promised by the attorney that if he plead[ed] guilty, . . . the defense attorney would fight for him in a post-conviction relief under lack of evidence.” (Id. at 7) The Petition asserts regarding timeliness that “[t]he tolling process applies.” (Id. at 11). Also regarding timeliness, the Petition states that “the lower courts docket will show the tolling process between the superior court and the supreme courts.” (Id.)
See footnote 2, supra.
On May 5, 2023, the Court dismissed Petition Ground One for failure to “include a statement that the Petitioner is in custody in violation of the Constitution or the laws or treaties of the United States” as required by 28 U.S.C. §2254(a). (Doc. 4 at 2-3) The Court ordered Respondents to answer Petition Ground Two. (Id.)
Petitioner thereafter filed a “Notice of Communication Between Petitioner and the (A.A.G.) Assistant Attorney General (Good faith communication letter)” in which Petitioner wrote that he “is in fact communicating under good faith with the (A.A.G.) in the attempt to remedy this case” and “[i]n hopes that mercy will be given.” (Doc. 7)
On June 12, 2023, Respondents filed their Limited Answer to Petition Ground Two. (Doc. 8) Respondents assert that Ground Two is time-barred as well as procedurally defaulted without excuse. (Id.)
On June 23, 2023, Petitioner timely filed a reply. (Doc. 9) In his reply, Petitioner asserts that he controverts Respondents' Limited Answer, requests “reversal to the lower court[,]” requests a certificate of appealability, and requests an evidentiary hearing. (Id.)
See footnote 2, supra.
III. TIMELINESS
A threshold issue for the Court is whether these habeas proceedings are time-barred by the statute of limitations. The time bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2022).
A. AEDPA's One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas proceedings because he filed his Petition after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). For AEDPA statute of limitations purposes, this Report and Recommendation uses April 21, 2023, the date Petitioner signed and filed the Petition, as the applicable filing date. (Doc. 1)
Under AEDPA, there are four possible starting dates for the beginning of its one-year statute of limitations period:
(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;
(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 applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). The latest of the applicable possible starting dates is the operative start date. Id.
Because the Petition's claims arise from a final judgment and sentence and the habeas record does not present circumstances for a later start date based on 28 U.S.C. § 2244(d)(1) subsections (B), (C), or (D), AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A). AEDPA's one-year statute of limitations period runs from when the judgment and sentence 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).
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may seek review only by collaterally attacking his convictions through PCR proceedings under Arizona Rule of Criminal Procedure 32 (now Rule 33). See Ariz. R. Crim. P. 17.2(a)(5) (“the defendant's plea of guilty or no contest will waive the right to appellate court review of the proceedings on a direct appeal” and “the defendant may seek review only by filing a petition for post-conviction relief under Rule 32 and, if it is denied, a petition for review”); A.R.S. § 13-4033(B) (“In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.”).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
At the time of Petitioner's sentencing, Arizona Rule of Criminal Procedure 32.4(a)(2)(C) required that an of-right PCR notice be filed within 90 days after entry of judgment and sentence. When the Rule 32 (now Rule 33) of-right proceeding concludes or the time for filing such expires, a conviction becomes “final” for purposes of § 2244(d)(1)(A) of AEDPA. Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007); see also A.R.S. § 13-4033(B). When an Arizona petitioner's PCR 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. Summers, 481 F.3d at 711, 716-17.
After Petitioner was sentenced pursuant to his guilty pleas and plea agreement, Petitioner timely filed his of-right PCR notice. Those proceedings concluded in the superior court on March 27, 2020. Under Arizona Rule of Criminal Procedure 33.16(a)(1), Petitioner had 35 days, until May 1, 2020, in which to file a petition for review in the Arizona Court of Appeals. He failed to do so. Thus, AEDPA's one-year statute of limitations therefore commenced to run on May 2, 2020, and the period for Petitioner to file a timely habeas petition expired on Monday, May 3, 2021. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998...”).
Because May 2, 2021, was a Sunday, Petitioner had until Monday, May 3, 2021, to file his habeas petition. See Fed.R.Civ.P. 6(a)(1)(C).
Petitioner did not file these habeas proceedings until April 21, 2023, almost two years after AEDPA's statute of limitations expired. (Doc. 1) Accordingly, these habeas proceedings were untimely filed unless statutory tolling, equitable tolling, and/or the actual innocence gateway apply to render these proceedings timely filed.
B. Statutory Tolling
AEDPA expressly provides for statutory tolling of the limitations period when a “properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending.” 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). This includes compliance with filing deadlines. A state post-conviction relief petition not filed within the state's required time limit is not “properly filed,” and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post-conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414).
Once the statute of limitations has run, subsequent state court 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).
Petitioner's second PCR proceedings were filed over seven months after AEDPA's limitations period had expired and did not restart the limitations period. See Jiminez, 276 F.3d at 482; Ferguson, 321 F.3d at 823. Thus, there is no applicable statutory tolling of AEDPA's limitation period. Accordingly, these habeas proceedings were untimely filed unless equitable tolling and/or the actual innocence gateway apply to render these proceedings timely filed.
C. Equitable Tolling
The U.S. Supreme Court has held “that § 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. Id. at 645-46. Petitioner bears the burden of establishing 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.”).
The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA's limitations period “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner must show “(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way” to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the first prong, Petitioner “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith, 953 F.3d at 59899 (expressly rejecting the “stop-clock” approach to equitable tolling). The second prong is met “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Id. at 600.
“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and quotations omitted). Whether to apply the doctrine of equitable tolling “‘is highly fact-dependent,' and [the petitioner] ‘bears the burden of showing that equitable tolling is appropriate.'” EspinozaMatthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable in most cases,” and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted).
In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[E]quitable tolling is available only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of the prisoner's untimeliness.”). A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where “it would have technically been possible for a prisoner to file a petition,” so long as the prisoner “would have likely been unable to do so.”).
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, 448 F.3d at 1154 (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”); see also Ballesteros v. Schriro, 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). A prisoner's “proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from filing a timely petition for habeas corpus. Accordingly, equitable tolling is not appropriate on this record and does not apply here to render these proceedings timely filed.
D. Actual Innocence
In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the “actual innocence gateway” to federal habeas review that applies 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. See Schlup, 513 U.S. at 329 (petitioner must make a credible showing of “actual innocence” by “persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”).
To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). 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.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). “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.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
“Evidence that merely undercuts trial testimony or casts doubt on the petitioner's guilt, but does not affirmatively prove innocence, is insufficient to merit relief on a freestanding claim of actual innocence.” Jones v. Taylor, 763 F.3d 1242, 1251 (9th Cir. 2014). To satisfy the actual innocence exception to an untimely filed petition, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. at 324, and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327).
Here, Petitioner plead guilty to the charges which are the subject of these habeas proceedings. Petitioner has not met his burden to establish actual innocence that would excuse Petitioner's failure to timely file a habeas action.
E. These Proceedings Are Untimely Under AEDPA
Given the above, the April 21, 2023, filing of this action was untimely, and neither statutory tolling, equitable tolling, nor the actual innocence gateway renders this action timely filed. Therefore, these untimely proceedings should be dismissed with prejudice and terminated.
IV. CONCLUSION
For the reasons set forth above, the April 21, 2023, filing of the Petition was untimely. Therefore, it is recommended that the Petition be dismissed with prejudice without an evidentiary hearing and that this matter be terminated. Because of the untimeliness of the filing of the Petition, Respondents' procedural default argument is not addressed herein.
Assuming the recommendations herein are followed in the District Judge's judgment, the undersigned recommends that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE RECOMMENDED that Petitioner Carlos Garcia Delgado's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) be dismissed with prejudice and that this matter be terminated.
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 Rule 4(a)(1) of the 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); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any 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 determination 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.