Opinion
No. CV-19-05016-PHX-DLR (JZB)
04-08-2020
Rickey Mora, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Petitioner Rickey Mora has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner was sentenced to 22.5 years imprisonment and lifetime probation on January 5, 2001 following a guilty plea. Petitioner filed an initial notice for post-conviction relief; however, he did not timely follow through with a petition, and that proceeding was dismissed. Seventeen years later, Petitioner filed a successive PCR petition, which was dismissed as untimely without excuse. The Court of Appeals upheld the dismissal. Subsequently, Petitioner filed a habeas petition with this court. The Petition is untimely as it was filed well past the one-year statute of limitations provided under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the Court will recommend the Petition be denied and dismissed with prejudice.
II. Background.
a. Facts and Trial Procedural History.
On November 30, 2000, Petitioner pleaded guilty to one count of child molestation and one count of attempted sexual conduct with a minor. (Doc. 11-1, Ex. E.) On January 5, 2001, the court sentenced Petitioner to 22.5 years of imprisonment for the crime of child molestation, to be served consecutively to a sentence he was serving in the California Department of Corrections, and lifetime probation for the crime of attempted sexual conduct with a minor. (Doc. 11-1, Ex. G.)
b. Petitioner's First Post-Conviction Relief Proceeding.
On March 30, 2001, Petitioner signed a notice of post-conviction relief (PCR), which was filed with the Superior Court of Maricopa County on April 11, 2001. (Doc. 11-1, Ex. H.) Counsel was appointed (doc. 11-1, Ex. I), and after reviewing the case, found no colorable claims for relief. (Doc. 11-1, Ex. J.) On August 29, 2001, the Superior Court granted Petitioner until October 11, 2001 to file a pro per PCR petition. (Doc. 11-1, Ex. K.) On October 26, 2001, having received no filing from Petitioner, the Superior Court dismissed the proceeding. (Doc. 11-1, Ex. L.) Petitioner did not appeal.
c. Petitioner's Second Post-Conviction Relief Proceeding.
On December 28, 2018, Petitioner completed a second PCR notice, which was filed with the Superior Court on January 2, 2019. (Doc. 11-1, Ex. M.) On January 28, 2019, the Superior Court dismissed Petitioner's notice as untimely "by more than 17 years" without excuse. (Doc. 11-1, Ex. N.) On February 6, 2019, Petitioner completed a petition for review with the Arizona Court of Appeals, which was filed on February 14, 2019. (Doc. 11-1, Ex. O.) On August 6, 2019, the Court of Appeals granted review and denied relief, holding the Superior Court did not abuse its discretion in denying the PCR petition. (Doc. 11-1, Ex. P.) The Court of Appeals issued the mandate on September 17, 2019. (Doc. 11-1, Ex. Q.)
d. Petitioner's Federal Habeas Petition.
On August 19, 2019, Petitioner executed the instant petition, which was filed on August 22, 2019. (Doc. 1.) Petitioner alleges his Sixth Amendment right to counsel was violated because, during "post-indictment and pre-trial lineup of a criminal proceeding," his defense counsel "did not guard against suggestive procedures given by the prosecution." (Id. at 5.) Petitioner is not seeking a reversal of his conviction, rather, he is seeking a reduction in his prison sentence and a modification from lifetime probation to standard probation. (Id. at 16.) In his discussion regarding the timeliness of his petition, Petitioner alleges he "only recently discovered" that he had the "opportunity" to present his legal issues to this court under the Sixth Amendment of the Constitution. (Id. at 14.)
After requesting an extension of time, Respondents filed their limited response on January 10, 2020. (Doc. 11.) On February 14, 2020, Petitioner filed his reply. (Doc. 12.)
III. The Petition.
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § § 2241 (c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. AEDPA provides a one-year statute of limitations concerning Petitions for Habeas Corpus. 28 U.S.C. § 2244(d)(1)(A), (d)(2).
a. Statutory Tolling.
AEDPA provides for 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). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed. See Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004). See also Ariz. R. Crim. P. 32.4(a) ("A proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred.").
Here, Petitioner's first post-conviction relief proceedings ended when the Superior Court dismissed the proceeding on October 26, 2001. Petitioner had 90 days to seek further review, but he did not. Therefore, Petitioner's first PCR proceeding was final on January 24, 2002. The period of direct review includes the 90-day period following entry of judgment "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." Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Petitioner's one-year limitation period to file a timely Petition ended on January 25, 2003, absent equitable tolling.
Petitioner's subsequent but untimely PCR petition did not entitle Petitioner to statutory tolling. A state petition that is not filed within the state's required time limit is not "properly filed," and, therefore, the petitioner is not entitled to statutory tolling. 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 the AEDPA's tolling provision). Petitioner's untimely PCR proceeding did not restart his deadline when AEDPA's statute of limitations had already run. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding "that section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed.").
b. Equitable Tolling.
Petitioner is not entitled to equitable tolling because he has not shown extraordinary circumstances. "A petitioner who seeks equitable tolling of AEDPA's one-year filing deadline must show that (1) some 'extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights." Holland v. Florida, 560 U.S. 631, 649 (2010); Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). Petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must show that "the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). "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) (citation omitted).
Here, the Petition was due by January 25, 2003, but was not executed until August 19, 2019, over sixteen years later. In the Petition, Petitioner argues that his defense counsel was ineffective during a "post-indictment and pre-trial lineup." (Doc. 1 at 5.) The facts of Petitioner's claim were known to him at the time of his sentencing on January 5, 2001. Petitioner's argument that he only "recently discovered" (id. at 13) his constitutional right to apply for habeas relief does not entitle him to 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."); Waldron-Ramsey, 556 F.3d at 1011 ("To apply the doctrine in 'extraordinary circumstances' necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances 'stood in his way' suggests that an external force must cause the untimeliness, rather than, as we have said, merely 'oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.'" (alteration in original) (citation omitted)). Petitioner is not entitled to equitable tolling.
IV. Conclusion.
Based on the above analysis, the Court finds that Petitioner's claim is untimely. Petitioner's claim was not statutorily tolled, and Petitioner fails to make any showing of extraordinary circumstances necessary for equitable tolling. The Court will therefore recommend that the Petition for Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (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 the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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. The parties shall have 14 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(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will 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.
Dated this 8th day of April, 2020.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge