Opinion
CV-21-0290-PHX-SPL (JFM)
11-20-2023
Kristopher Ivon A. Dillon, Petitioner v. State of Arizona, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS AND COUNSEL'S MOTION TO WITHDRAW
James F. Metcalf, United States Magistrate Judge
Petitioner has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7). His appointed counsel has filed a motion to withdraw (Doc. 31) The Petitioner's Petition and counsels' Motion to Withdraw are now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
This case was dismissed after a dismissal for failure to prosecute due to Petitioner's failure to file a second amended petition after dismissal of the Amended Petition with leave to amend. On appeal, counsel was appointed to represent Petitioner. The judgment was reversed, and the matter remanded for consideration of the Amended Petition. (Mem. Dec., Doc. 23.) Defense counsel continued representation before this Court.
A. BACKGROUND
“Dillon pled guilty to molestation of a child, a Class 2 felony and dangerous crime against children, and two counts of attempted molestation of a child, Class 3 felonies and dangerous crimes against children. He was sentenced to an aggravated term of 24 years' imprisonment on the molestation charge and placed on lifetime probation on the remaining counts.” (Exh. S, Mem. Dec. 4/24/18 at ¶ 2.)
Exhibits to the Answer (Doc. 27) are referenced herein as “Exh. .”)
In his Amended Petition, Petitioner raises claims of ineffective assistance of counsel, prosecutorial misconduct, and evidentiary errors. (Order 4/14/23, Doc. 24 at 2.)
Respondents have filed a Limited Answer (Doc. 27) arguing the Petition is untimely and the claims procedurally defaulted and waived by Petitioner's guilty plea.
Petitioner's counsel filed a Motion to Withdraw as Counsel and for Leave to File a Pro Se Reply (Doc. 31), pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Counsel argued the claims presented were waived by Petitioner's plea. Petitioner responded (Doc. 33). The undersigned found Anders not controlling but instructive and granted Petitioner leave to file a pro per reply brief, and took under advisement the motion to withdraw pending consideration of the Petition. (Order 8/24/23, Doc. 34.)
Petitioner filed a pro per Reply (Doc. 37) arguing he has had “habeas” petitions pending since the filing of his first post-conviction relief (PCR) notice, has diligently pursued his state remedies, counsel was deficient in advising him to plead guilty and failed to pursue potential defenses from deficiencies in DNA evidence, and he has repeatedly presented all of his claims to the state courts.
The undesigned tentatively concluded that the Petition was barred by the statute of limitations, and because counsel had not addressed this defense, directed appointed counsel to file either a supplement to the Motion to Withdraw or the Reply to address this defense. Petitioner was given 14 days after service of a supplement to the Motion to Withdraw to respond. (Order 9/18/23, Doc. 38.) In response counsel filed a Supplement (Doc. 43) to the Motion to Withdraw, reviewing the record regarding commencement, statutory tolling, and equitable tolling, and asserting counsel had found no non-frivolous argument to avoid the statute of limitations. Petitioner did not timely file a response.
On October 23, 2023, Petitioner's counsel filed a Motion (Doc. 44) seeking a deadline of December 1, 2023 for Petitioner to file a pro per supplement to counsel's Supplement on the Motion to Withdraw. That request was denied based on the presumed expiration of the deadline and the inappropriateness of Petitioner supplementing the motion to withdraw, as opposed to either consenting to withdrawal or opposing it. (Order 10/23/23, Doc. 45.) Petitioner's counsel filed a Certificate of Service (Doc. 46) showing the Supplement was served on Petitioner by mail on September 28, 2023, making any pro per response by Petitioner due by October 16, 2023.
The undersigned concludes that the Petition is plainly barred by the habeas statute of limitations, and thus limits the discussion of the facts, procedural background and law to the matters relevant to such determination.
B. PETITION UNTIMELY
1. One Year Limitations Period
Respondents assert that Petitioner's Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed. Id.
2. Commencement of Limitations Period
The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. § 2244(d)(1)(B)-(D). Petitioner proffers no argument that any of these apply.
Petitioner was sentenced on September 30, 2016. (Exh. I, Sentence.) (Exhibits to the Answer (Doc. 27) are referenced herein as “Exh. ___.”)
Petitioner did not file a direct appeal. (Amend. Petition, Doc. 7 at 2.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz. R. Crim. P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
For an Arizona noncapital pleading defendant, “Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 717 (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)). Thus, the conviction of a pleading defendant becomes “final” at the conclusion of the first “of-right” post-conviction proceeding under Rule 32, or the expiration of the time to do so.
Here, Petitioner filed on November 30, 2016 a PCR Notice (Exh. J), commencing a timely, of-right PCR proceeding. Following denial by the PCR court, Petitioner filed a timely petition for review with the Arizona Court of Appeals (Exh. Q), which remained pending until April 24, 2018, when that court denied review (Exh. S.)
Petitioner filed a motion for reconsideration (Exh. T), which was denied on May 8, 2018 (Exh. U). Thereafter, Petitioner had 30 days to seek review by the Arizona Supreme Court. See Ariz. R. Crim. P. 31.21(b)(2) (30 days after court of appeals decision or denial of motion for reconsideration). Accordingly, Petitioner's petition became final by conclusion of direct review on Thursday, June 7, 2018.
For purposes of 28 U.S.C. § 2244, “direct review" 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. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The Supreme Court “can review, however, only judgments of a ‘state court of last resort' or of a lower state court if the ‘state court of last resort' has denied discretionary review.” Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (citing U.S. Sup.Ct. R. 13.1 and 28 U.S.C. § 1257(a)). Here, Petitioner did not seek direct review by the Arizona Supreme Court. Accordingly, the time for seeking a writ of certiorari with the U.S. Supreme Court cannot be considered in determining when Petitioner's judgment became final. Id.
For purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Rule 6(a)(1)(A) directs that the “the day of the event that triggers the period” is excluded. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying “anniversary method” under Rule 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later on the anniversary of such adoption, April 24, 1997).
Accordingly, without further tolling, Petitioner's one year commenced running on June 8, 2018 and expired on Friday, June 7, 2019.
3. Statutory Tolling for Second PCR
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
On January 22, 2018, while his first PCR proceeding was continuing, Petitioner commenced his second post-conviction application by filing a “Motion to Review Sentence” (Exh. W), relying on Blakely v. Washington, 542 U.S. 296 (2004). The undersigned assumes arguendo (in Petitioner's favor) that this qualified as a postconviction or collateral review application. This proceeding remained pending at least until June 14, 2018 when the Arizona Court of Appeals denied (Exh. AA) Petitioner's Petition for Review.
However, for purposes of statutory tolling under § 2244(d), a post-conviction application remains pending until the expiration of time allowed to seek further review, even if such review is not sought. Melville v. Shinn, 68 F.4th 1154, 1160 (9th Cir. 2023). Petitioner had 30 days to seek review by the Arizona Supreme Court. See Ariz. R. Crim. P. 31.21(b)(2) (30 days after court of appeals decision or denial of motion for reconsideration). Petitioner did not seek reconsideration or file a petition for further review. (Exh. BB, Mandate 7/30/18.) Accordingly, Petitioner's time for further review expired on Monday, July 16, 2018. His one year began running the following day, and without further tolling expired on Tuesday, July 16, 2019.
Respondents calculate the finality of Petitioner's conviction as one day later, July 17, 2018 (and July 18, 2018 as the commencement date), apparently on the assumption that finality did not occur until the day after Petitioner's last day to file his state petition for review. (Answer, Doc. 27 at 10.) To the contrary, finality occurred on July 16, 2018, and at 12:00 a.m. on July 17, 2018, Petitioner's conviction was already final, and all of that day counted against Petitioner's one year. See Gonzalez v. Thaler, 565 U.S. 134, 154 (2012).
4. No Statutory Tolling for Third PCR
Even though an Arizona PCR proceeding is ordinarily commenced by filing a PCR Notice, see Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 9/13/04), the undersigned assumes arguendo in Petitioner's favor that Petitioner commenced his next PCR proceeding on December 9, 2019, when he filed what the PCR court construed as a PCR Petition (Exh. CC), labeled “Continuation from Question 6.” The Court further assumes arguendo (in Petitioner's favor) that this filing is entitled to application of the prison mailbox rule and should be deemed filed as of the date it was signed, December 1, 2019. (Exh. CC at 27.) Petitioner was ordered to file a PCR Notice (Exh. DD, Order 2/4/20), which he did on February 13, 2020 (Exh. EE).
Petitioner's “Continuation from Question 6” asserted that it was a “continuation of the original PCR filed Dec. 2016,” presumably Petitioner's first PCR proceeding. However, as discussed in paragraph B(2) hereinabove, that proceeding had ceased to be pending in the PCR court on April 24, 2018, when that court denied review (Exhibit S), and Arizona law makes no provision for a party to unilaterally “continue” a PCR proceeding that has long since been terminated. Thus this filing was a new post-conviction application.
At the time Petitioner signed this “Continuation,” on December 1, 2019, his one year had been expired for some 138 days. Once the statute has run, a subsequent postconviction or collateral relief filing does not reset the running of the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Moreover, the PCR court dismissed this filing as “untimely and successive.” (Exh. GG, Order 3/23/20 at 1.) Statutory tolling of the habeas limitations period only results from state applications that are “properly filed,” and an untimely application is never “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005). “If a [state] court has held that a state habeas petition was timely or untimely, we are bound by that decision.” Valdez v. Montgomery, 918 F.3d 687, 692 (9th Cir. 2019).
Even if the state court provided an alternative ground (in this case “successive”) for disposing of the state application, a ruling that the application was untimely precludes it from being “properly filed” and tolling the limitations period. Carey v. Saffold, 536 U.S. 214, 225-26 (2002).
5. Untimely or Improper “Notice of Appeal” Irrelevant
Petitioner filed a “Notice of Appeal” (Exh. HH) on April 13, 2020, and dated April 10, 2020. It was dismissed as untimely on April 22, 2020, with the Arizona Court of Appeals noting that the time to appeal had expired twenty days after the September 30, 2016 sentence, and any other review was available in a post-conviction relief proceeding. (Exh. II, Order 4/22/20.)
This filing did not extend the pendency of Petitioner's third PCR proceeding. Review in such proceedings is not by way of a notice of appeal, but rather a Petition for Review.
This filing did not delay the commencement of the limitations period. It is true that “where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet “final” for purposes of § 2244(d)(1)(A).” Jimenez v. Quarterman, 555 U.S. 113, 121 (2009). But here, the delinquent appeal was not permitted, but rejected as untimely.
This filing also did not result in statutory tolling as a separate PCR proceeding because it was filed after the limitations period expired. Moreover it was deemed untimely.
6. Even Original Petition Untimely
The undersigned assumes arguendo (in Petitioner's favor) that his Amended Petition (Doc. 7) relates back in time to the filing of his original Petition. See Fed.R.Civ.P. 15(d) (relation back of amended pleadings). Petitioner's original Petition (Doc. 1) was filed on February 16, 2021. As discussed hereinabove, Petitioner's limitations period had been expired since no later than July 16, 2019. Accordingly, his original Petition was at least 19 months delinquent, and thus his Amended Petition was at least that delinquent.
Petitioner argues in his Reply that he has not violated the statute of limitations because (citing the Oxford American Dictionary) “habeas” is simply a challenge to detention and he has been diligently challenging his detention since his conviction through his state PCR proceedings. (Reply, Doc. 37 at 2.) But the federal habeas statute of limitations is not satisfied by filing just any habeas proceeding. It requires the timely filing of a federal habeas petition. At best, the filing of state habeas petitions can result in statutory tolling under 28 U.S.C. § 22244(d)(2). But for the reasons discussed hereinabove, Petitioner has not show sufficient statutory tolling to make his federal petition timely.
7. Equitable Tolling
Petitioner argues he has been diligently and timely pursuing relief in the state courts. "Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but 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 his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
To the contrary, as discussed hereinabove in Sections A(4) and A(5) Petitioner has not been timely with all of his state filings.
To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances ma[de] it impossible to file a petition on time.Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations omitted). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.' ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)).
Even if extraordinary circumstances prevent a petitioner from filing for a time, equitable tolling will not apply if he does not continue to diligently pursue filing afterwards. “If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.” Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 2000). Ordinarily, thirty days after elimination of a roadblock should be sufficient. See Guillory v. Roe, 329 F.3d 1015, 1018, n.1 (9th Cir. 2003).
Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); 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.”).
While diligence is required for equitable tolling, it is not sufficient. Rather, the petitioner must show extraordinary circumstances making it impossible for him to file his federal petition on time. Petitioner proffers no such circumstances, and the undersigned finds none.
Petitioner does complain that his original Petition was dismissed with leave to amend for his failure to use the proper form. (Reply, Doc. 37 at 1.) But as discussed hereinabove, even if the Court treats the filing of the original Petition as the effective date of his federal filing, his Amended Petition remains untimely.
Petitioner points to his untrained, pro se status throughout much of the history of his attempts to obtain relief from his conviction and sentence. “It is clear that pro se status, on its own, is not enough to warrant equitable tolling.” Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). 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). See also Rasberry v. Garcia, 448 F.3d 1150, 1154 (9thCir. 2006) (“a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling”).
Petitioner references his exhaustion of state court remedies. (Reply, Doc. 37 at 6.) In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Supreme Court analyzed the potential catch-22 between the habeas limitations period and the requirement to exhaust state remedies, where a state petitioner has filed a state post-conviction relief proceeding which may ultimately be deemed untimely, thus not properly filed, and resulting in the expiration of his habeas limitations period. “A prisoner seeking state postconviction relief might avoid this predicament, however, by filing a ‘protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” Id. at 416. Petitioner proffers no reason why this avenue was not available to him to allow him to exhaust his state remedies and still file a timely federal petition.
Moreover, diligence and tenaciousness are two different things. While diligence is a prerequisite to equitable tolling, it is diligence in pursuing a federal petition, not diligence in the state court proceedings, that is required. See United States v. Oriakhi, 394 Fed.Appx. 976, 977 (4th Cir. 2010) (unpublished decision) (“Although the record shows that Oriakhi doggedly pursued a transcript, he has failed to show that he diligently pursued his [federal habeas petition”); and Parker v. Neven, 2014 WL 3592424, at *9 (D. Nev. July 18, 2014) (“Dogged pursuit of other litigation in other courts, including a federal action in Arkansas, does not demonstrate that petitioner pursued his rights diligently with regard to federal postconviction relief.”).
Moreover, diligence is required, but not sufficient. Rather, Petitioner must also show that “extraordinary circumstances ma[de] it impossible to file a petition on time.” Ramirez, 571 F.3d 997. Petitioner has not done so.
8. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383 (2013). To invoke this exception to the statute of limitations, 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.'” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This exception, referred to as the “Schlup gateway,” applies “only when a petition presents ‘evidence of innocence 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. at 400 (quoting Schlup, 513 U.S. at 316). “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-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324.
Although Petitioner insists on his innocence (Reply, Doc. 37 at 4, 6), Petitioner makes no claim of actual innocence based on new credible evidence, and the record reveals none.
At best, Petitioner complains of conflicting or insufficient evidence. (Reply, Doc. 37 at 3-4.) That does not justify equitable tolling. A finding of "actual innocence" is not to be based upon a finding that insufficient evidence to support the charge was presented at trial, but rather upon affirmative evidence of innocence. See U.S. v. Ratigan, 351 F.3d 957 (9th Cir. 2003) (lack of proof of FDIC insurance in a bank robbery case, without evidence that insurance did not exist, not sufficient to establish actual innocence). “It is important to note in this regard that ‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Further, an actual innocence analysis does not invite a simple reconsideration of the evidence at trial, but requires consideration of new evidence. “To meet this standard, [the Petitioner] must first furnish ‘new reliable evidence ... that was not presented at trial.' ” Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (quoting Schlup, 513 U.S. at 324). Moreover, a petitioner may not simply allege that such evidence exists, but must present it to the habeas court, through affidavit of the witness, etc. See Weeks v. Bowersox, 119 F.3d 1342, 1352-1353 (8th Cir. 1997). It is not sufficient for a petitioner to claim actual innocence if he fails to proffer anything other than conclusory allegations to support a claim of actual innocence. See James v. Borg, 24 F.3d 20, 26 (9th Cir.1994) (stating that unsupported, conclusory allegations do not warrant habeas relief). As Chief Judge Kozinksi observed in his special concurrence in Lee v. Lampert, "[t]he Court certainly did not hold that a petitioner may invoke Schlup whenever he wants a trial do-over.”
9. Summary re Statute of Limitations
Taking into account the available statutory tolling, Petitioner's one year habeas limitations period commenced running on July 17, 2018, and expired on July 16, 2019, making his Amended Petition (even if deemed to relate back to the original Petition) no less than 19 months delinquent. Petitioner has shown no basis for additional statutory tolling, and no basis for equitable tolling or actual innocence to avoid the effects of his delay. Consequently, the Petition must be dismissed with prejudice.
C. OTHER DEFENSES
The undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations. Accordingly, Respondents' waiver and procedural default defenses are not reached.
D. MOTION TO WITHDRAW
In the Order filed August 24, 2023 (Doc. 34), the Court addressed Petitioner's counsel's Motion to Withdraw (Doc. 31), and concluded that there was no controlling authority extending Anders v. California, 386 U.S. 738, 744 (1967) (procedure for withdrawal of appointed appellate counsel faced with no non-frivolous grounds for appeal) to federal habeas proceedings under 28 U.S.C. § 2254. Nonetheless, the Court concluded that Anders provided an appropriate framework for resolving Petitioner's counsel's assertion that pressing a petition counsel had found untenable would amount to an ethical violation.
Counsel's original motion was based on the purported lack of non-frivolous arguments to avoid Respondents' waiver-by-guilty-plea arguments, “regardless whether Mr. Dillon's claims are timely or procedurally proper.” (Motion, Doc. 31 at 13.) Counsel provided a detailed review (some 13 pages worth) of the underlying facts, state procedural history and federal procedural history. Because the undersigned had tentatively concluded that the Petition was plainly untimely, counsel was ordered to, and did, supplement the Motion to Withdraw by reviewing the record relevant to the statute of limitations issues, including commencement, statutory tolling, equitable tolling, and actual innocence. (Supplement, Doc. 43.)
Under Anders, counsel's brief (or motion to withdraw) does not serve the purpose of providing the reviewing court a basis for finding the “appeal” frivolous, but “of assisting the court in determining both that counsel in fact conducted the required detailed review of the case and that the appeal is indeed so frivolous that it may be decided without an adversary presentation.” Penson v. Ohio, 488 U.S. 75, 81-82 (1988). Counsel's Motion and Supplement have fulfilled that purpose.
Counsel's representation in this Court is governed by the Arizona Supreme Court's Rules of Professional Responsibility (the Ethics Rules). LRCiv 83.2(e).
These Rules present counsel with potentially competing obligations:
“A lawyer shall act with reasonable diligence and promptness in representing a client.”ER 1.3.
“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor.”ER 1.3, Comment 1 to 2003 Amendment.
“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not frivolous, which may include a good
faith and nonfrivolous argument for an extension, modification or reversal of existing law.”ER 3.1. Thus, counsel must vigorously represent his client, but he cannot ethically argue claims he believes are frivolous. Where these two obligations conflict, counsel may be permitted to withdraw. The undersigned's review of the record and briefs in this case indicates no non-frivolous basis to argue against the statute of limitations defense, and such defense is dispositive of the Petition.
Accordingly, counsel's motion to withdraw should be granted.
E. CERTIFICATE OF APPEALABILITY
“When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Counsel's Motion to Withdraw (Doc. 31) be GRANTED.
(B) Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 7) be DISMISSED WITH PREJUDICE.
(C) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”