Opinion
CV-22-01181-PHX-GMS (MTM)
07-03-2023
Robert Lane Luke, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Petitioner Robert Lane Luke has filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
I. SUMMARY OF CONCLUSION
On December 11, 2018, Petitioner pled guilty to sexual exploitation of a minor and two counts of attempted sexual exploitation of a minor. He was sentenced to a 14-year term of imprisonment followed by lifetime probation. Petitioner timely filed a notice of postconviction relief (“PCR”) and then moved to voluntarily dismiss the PCR proceeding. Approximately two years later, Petitioner filed a second PCR notice, which was dismissed as untimely. On July 12, 2022, Petitioner filed the instant habeas petition. Because the petition is untimely and Petitioner is not entitled to statutory or equitable tolling, the Court will recommend the petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction and Sentencing
On December 11, 2018, Petitioner pled guilty to one count of sexual exploitation of a minor and two counts of attempted sexual exploitation of a minor. Doc. 12-1 at 3. On January 23, 2019, Petitioner was sentence to a 14-year term of imprisonment followed by lifetime probation. Id. at 14-16. Petitioner did not file a direct appeal.
B. Post-Conviction Relief
On April 11, 2019, Petitioner filed a PCR notice. Id. at 21-23. On October 23, 2019, Petitioner moved to dismiss his PCR proceeding, stating that he “no longer wish[ed] to contest a judgment of guilt or the sentence entered against [him] in this case.” Id. at 38. On December 3, 2019, the court dismissed the PCR proceeding. Id. at 43.
On December 17, 2021, Petitioner filed a second PCR notice. Id. at 45-49. He filed the PCR petition on December 23, 2021. Id. at 51-61. On February 2, 2022, the PCR court dismissed the PCR proceeding as untimely. Id. at 103-05. On February 15, 2022, Petitioner filed a petition for review with the Arizona Court of Appeals. Id. at 107-14. On November 15, 2022, the Arizona Court of Appeals granted review and denied relief. Id. at 120-21.
III. PEITION FOR A WRIT OF HABEAS CORPUS
On July 12, 2022, Petitioner filed a “Special Action,” which the Court construed as a Petition for a Writ of Habeas Corpus. Doc. 1. The Court dismissed the petition without prejudice. Doc. 3. On August 23, 2022, Petitioner filed an Amended Petition raising three grounds for relief. Doc. 4. As stated in the Court's Order, Petitioner argues the following:
In Ground One, Petitioner alleges that he received ineffective assistance of counsel, in violation of his Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights. He states that “P.T.S.D. does exist” and that his sentencing attorney knew “about all the illegal practices that were conducted,” apparently including the removal of Petitioner's judge from the bench “due to unprofessional conduct with inmates?”'
In Ground Two, Petitioner asserts a claim for judicial misconduct, citing the Due Process and Equal Protection Clauses. He claims the judge assigned to his case “was held in contempt of violating Judicial Rules of Office” and that the county attorney “assisted in covering up [her] misconduct.” Petitioner further alleges that the trial court “knew . . . [it] could
violate the Petitioner's rights” without his knowledge and that his sentencing attorney “knew this all along.”
In Ground Three, Petitioner asserts an access-to-courts claim, alleging that Respondent and the ASP-Kingman librarian are hindering his access to legal assistance and copies of legal documents by prohibiting him from receiving assistance from a “jailhouse lawyer” who possesses “the cred[]entials of a . . . Certified Legal Assistant/Paralegal Certification.”Doc. 7 at 2.
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 state-court 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 January 23, 2019. Doc. 12-1 at 14-16. On April 11, 2019, Petitioner filed a PCR notice. Id. at 21-23. On December 3, 2019, the court granted Petitioner's motion to dismiss and dismissed the PCR proceeding. Id. at 43.
Petitioner signed and dated the PCR notice on April 11, 2019. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding for pro se prisoners, a filing is deemed filed when it is delivered to prison authorities for mailing).
Petitioner's conviction became final upon the conclusion of the time for seeking direct review. See 28 U.S.C. § 2244(d)(1)(A). Because Petitioner pled guilty, his PCR proceeding was of-right review under AEDPA. See Summers, 481 F.3d at 711. After the PCR court dismissed his PCR proceeding, Petitioner had 35 days to file a petition for review with the Arizona Court of Appeals, until January 7, 2020. See Ariz. R. Crim. P. 32.9(c)(1)(A) (2018) (stating a petition for review may be filed within 30 days); Ariz. R. Crim. P. 1.3(a) (adding five days to the time period when service is effectuated by mail to the petitioner); Ariz. R. Crim. P. 1.3(a)(1) (stating the day starting the time period is excluded from time calculation). Therefore, Petitioner's conviction became final the following day when the time for seeking further review concluded, on January 8, 2020. The AEDPA limitations period expired one year later, on January 8, 2021. See 28 U.S.C. § 2244(d). Petitioner filed the instant petition on July 12, 2022. Doc. 1 at 6. The petition is therefore untimely by one and a half years.
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 filed his second PCR notice on December 17, 2021. Doc. 12-1 at 45-49. The AEDPA limitations period had already expired on January 8, 2021. Petitioner's second PCR proceeding did not serve to restart the expired limitations period. See Ford, 683 F.3d at 1237. Moreover, Petitioner's second PCR proceeding was dismissed as untimely and was therefore not a “properly filed” PCR petition that would toll the AEDPA limitations period. See. Pace, 544 U.S. at 410. Therefore, Petitioner is not entitled to statutory tolling to excuse the untimely filing of the petition.
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 argued or shown he is entitled to equitable tolling. He has not shown an extraordinary circumstance existed which prevented him from timely filing the petition. In addition, Petitioner has not explained why he waited two years after the voluntary dismissal of his first PCR proceeding to file a second PCR notice, or why he could not have prepared and filed a federal habeas petition in that time before the AEDPA limitations period expired. Petitioner has therefore not shown he was pursuing his rights diligently. Accordingly, Petitioner is not entitled to equitable tolling. See Ford, 683 F.3d at 1237; Pace, 544 U.S. at 418. Petitioner has also not argued he is actually innocent. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or expiration of the AEPA statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 383-84 (2012). “Actual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615 (1998). Because petitioner has not shown that he is entitled to equitable tolling or argued he is actually innocent, no exception applies to excuse the untimely filing of the habeas petition.
V. CONCLUSION
The Court concludes that Petitioner's habeas petition is untimely, and Petitioner is not entitled to statutory or equitable tolling to excuse the untimely filing.
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 Amended Petition (doc. 4) 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.