Opinion
CV-22-08237-PCT-ROS (DMF)
09-26-2023
Tyler Matthew Pierson-Haupt, Petitioner, v. Jeff Wrigley, et al., Respondents.
TO THE HONORABLE ROSLYN O. SILVER, SENIOR 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. 9 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-22-08237-PCT-ROS (DMF).
Petitioner Tyler Matthew Pierson-Haupt (“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 Writ of Habeas Corpus by a Person in State Custody (“Petition”) on December 12, 2022. (Doc. 1) On February 13, 2023, the Court dismissed the Petition without prejudice for failure to state a constitutional violation and ordered Petitioner to file an amended petition within thirty days of the Court's Order. (Doc. 5) Petitioner moved for reconsideration of the Court's Order dismissing the Petition. (Doc. 6) On March 14, 2023, the Court denied Petitioner's motion for reconsideration and ordered Petitioner to file an amended petition within 30 days of the Court's Order. (Doc. 7)
The Petition was docketed by the Clerk of Court on December 20, 2022. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing System on December 12, 2022. (Id. at 27) This Report and Recommendation uses ecember 12, 2022, as the operative filing date of the Petition. 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.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs, dates, and attested the petition was placed in the prison mailing system).
On April 1, 2023, Petitioner filed an Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Amended Petition”). (Doc. 8) On April 17, 2023, the Court ordered Respondents to answer the Amended Petition, allowing an answer limited to relevant affirmative defenses. (Doc. 9 at 3-4) On June 21, 2023, Respondents filed their Limited Answer to the Amended Petition. (Doc. 13) On August 10, 2023, Petitioner filed a reply. (Doc. 16)
See footnote 2, supra.
For the reasons set forth below, it is recommended that these proceedings be dismissed with prejudice as untimely, that the Clerk of Court be directed to terminate this matter, and that a certificate of appealability be denied.
I. BACKGROUND
A. Petitioner's Charges, Convictions, and Sentences in Mohave County Superior Court Case Numbers CR-2017-01420 and CR-2017-01152
On the first page of the Amended Petition, Petitioner lists only Mohave County Superior Court case number CR-2017-01420, in which Petitioner was convicted of one count of burglary in the first degree. (Doc. 8 at 1) However, Ground One of the Amended Petition pertains to Petitioner's convictions in Mohave County Superior Court case number CR-2017-01420 as well as in Mohave County Superior Court case number CR-2017-01152, in which Petitioner was convicted of aggravated assault by domestic violence. (Id. at 9-10) Petitioner lists his convictions for both burglary in the first degree and aggravated assault on the first page of the Amended Petition and refers to the 7.5-year sentence as imposed for both convictions. (Id. at 1) In their Limited Answer, Respondents also address Petitioner's convictions for aggravated assault by domestic violence in case number CR-2017-01152 and for burglary in the first degree in case number CR-2017-01420. (See Doc. 13 at 2)
Courts in the Ninth Circuit have interpreted Rule 2(e) of the Rules Governing Section 2254 Cases to allow petitioners to challenge judgments in the same court. See Aguilar v. Ryan, 2016 WL 8944352, at *1 n.1 (D. Ariz. Sept. 1, 2016); Sandefur v. Olsen, 2021 WL 5371564, at *1 (D. Nev. Oct. 20, 2021). Petitioner's convictions and sentences in case numbers CR-2017-01420 and CR-2017-01152 are both judgments from Mohave County Superior Court and may be challenged in the same habeas action.
On September 28, 2017, in Mohave County Superior Court case number CR-2017-01420, a grand jury indicted Petitioner with six crimes: one count of burglary in the first degree, a class 2 felony; one count of aggravated assault, a class 3 felony; one count of aggravated assault, a class 4 felony; one count of assault by domestic violence, a class 1 misdemeanor; one count of disorderly conduct by domestic violence, a class 1 misdemeanor; and one count of criminal damage by domestic violence, a class 1 misdemeanor. (Doc. 13-1 at 3-6) On February 23, 2018, the state filed an addendum to the indictment against Petitioner in case number CR-2017-01420, alleging that Petitioner would be a repetitive offender once Petitioner was convicted of pending charges in case number CR-2017-01152, that Petitioner committed the offenses in case number CR-2017-01420 while on felony release in case number CR-2017-01152, that the offenses of one count of burglary in the first degree and both counts of aggravated assault as charged in the indictment were dangerous offenses, and that aggravating factors existed. (Id. at 8-10)
In Mohave County Superior Court case number CR-2017-01152, Petitioner was charged with one count of aggravated assault by domestic violence, a class 4 felony; one count of sexual conduct with a minor, a class 6 felony; and one count of threatening or intimidating by domestic violence, a class 6 felony. (See id. at 16-17)
On February 23, 2018, in case numbers CR-2017-01420 and CR-2017-01152, the Mohave County Superior Court held a settlement conference and change of plea hearing with Petitioner, Petitioner's counsel, and the prosecutor. (Id. at 12-14) After the trial court discussed the state's plea offer with Petitioner, Petitioner stated that he wished to enter into the plea agreement. (Id. at 12) Pursuant to the terms of the plea agreement, Petitioner plead guilty to one count of burglary in the first degree, a class 2 felony, in case number CR-2017-01420 and one count of aggravated assault by domestic violence, a class 4 felony, in case number CR-2017-01152. (Id. at 13, 16-19) The plea agreement stipulated that the remaining charges against Petitioner in case numbers CR-2017-01420 and CR-2017-01152 would be dismissed and that Petitioner would receive a 7.5-year total term of imprisonment on both charges, that Petitioner would pay restitution including for dismissed counts, and that all other terms were in the trial court's discretion. (Id. at 17)
During the hearing, the trial court advised Petitioner of possible penalties and consequences of a felony conviction. (Id. at 13) The trial court also found that Petitioner's trial counsel had explained the terms of the plea agreement to Petitioner, that Petitioner had read the plea agreement, and that Petitioner understood the plea agreement. (Id.) During the hearing, the trial court also advised Petitioner of his rights as well as advised Petitioner of his rights being given up by entering the plea agreement, including the right to appeal. (Id.) The trial court confirmed that Petitioner had signed the plea agreement, that the plea agreement contained all the agreements between the parties, and that no force or threats were used to induce Petitioner to enter into the plea agreement. (Id. at 13, 18) Further, the trial court found that Petitioner knowingly, intelligently, and voluntarily entered the guilty pleas, found that there was a factual basis for the pleas, and accepted Petitioner's guilty pleas. (Id. at 13)
On March 28, 2018, the trial court sentenced Petitioner in case numbers CR-2017-01152 and CR-2017-01420. (Id. at 21-25) In case number CR-2017-01152, the trial court imposed a presumptive sentence of 2.5 years' imprisonment with three days of credit for time served. (Id. at 22) In case number CR-2017-01420, the trial court imposed a presumptive sentence of five years' imprisonment with 188 days of credit for time served, to run consecutively to Petitioner's sentence in case number CR-2017-01152. (Id. at 23) The trial court further imposed a one-year term of community supervision to be served consecutive to Petitioner's term of imprisonment. (Id.) The trial court also set a restitution hearing. (Id. at 24) The total 7.5-year prison sentence arising from the convictions was in accordance with Petitioner's plea agreement. (Id. at 16-19)
In Petitioner's later filings in the state courts, Petitioner describes that the restitution proceedings did not resolve until October 31, 2018, over seven months after Petitioner's sentencing. (Id. at 44) Petitioner recounts that during the seven months following his March 2018 sentencing in the two cases, Petitioner was represented by counsel in the restitution proceedings, that counsel failed to object in the superior court to the lack of support for the restitution claim, that Petitioner “did so” himself, and that the state needed additional time for the restitution hearing for obtaining documentation, which delayed finalization of restitution proceedings in the superior court until October 31, 2018. (Id.)
Petitioner's account of the ongoing restitution proceedings and their resolution in both cases on October 31, 2018, is consistent with the limited information on the Arizona Judicial Branch Public Access to Court Information: https://perma.cc/7LUC-QJ9B (last accessed 9/21/2023). The Arizona Judicial Branch Public Access to Court Information does not reflect any PCR notice filed by Petitioner in either Mohave County Superior Court case until August 2021. Id.
Petitioner asserts that in February 2021, Petitioner filed a “Motion for Credit Time Spent in Jail Awaiting Disposition of Case” in the superior court. (Id. at 44) Petitioner thereafter filed a notice of appeal of the superior court's order denying Petitioner's “Motion for Credit Time Spent in Jail Awaiting Disposition of Case” in case number CR-2017-01420. (Id. at 27) On March 16, 2021, the Arizona Court of Appeals dismissed Petitioner's appeal for lack of jurisdiction and stated that if Petitioner “wishes to seek review of his conviction or sentence, [Petitioner] must proceed by way of Arizona Rule of Criminal Procedure 33. See Ariz. Rev. Stat. § 13-4033(B); State v. Ward, 211 Ariz. 158, 161-162, ¶9 (App. 2005).” (Id.)
Arizona Judicial Branch Public Access to Court Information reflects a notice of appeal in early March 2021 and reflects the superior court receipt of the court of appeals order on the appeal as May 4, 2021: https://perma.cc/7LUC-QJ9B (last accessed 9/21/2023). See also Doc. 13-1 at 27.
B. Petitioner's Post-Conviction Relief (“PCR”) Proceedings in Mohave County Superior Court Case Numbers CR-2017-01420 and CR-2017-01152
On August 17, 2021, which was over three years after his sentencing hearing, Petitioner filed a PCR notice in the superior court in case numbers CR-2017-01152 and CR-2017-01420. (Id. at 29) On September 1, 2021, the superior court dismissed Petitioner's PCR notice as untimely, stating:
As the superior court found, the prison mailbox rule applied to Petitioner's August 2021 PCR notice. Melville, 68 F.4th at 1159 (“‘We assume that [Melville] ‘turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.' Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam).”). Although Petitioner's PCR notice is not in the record before the Court, the superior court stated that Petitioner signed his PCR notice on August 17, 2021, and that Petitioner's PCR notice was filed in the superior court on August 23, 2021. (Doc. 13-1 at 29) The electronic docketing system maintained by the Arizona Judicial Branch reflects a Rule 33 PCR notice docketed in cases CR-2017-01420 and CR-2017-01152 on August 23, 2021. See https://perma.cc/7LUC QJ9B (last accessed September 18, 2023).
On March 28, 2018, pursuant to the terms of a Felony Plea Agreement, the [Petitioner] was sentenced to serve 7.5 years in the Arizona Department of Corrections. Pursuant to Rule 33.4, Arizona Rules of Criminal Procedure, the Notice of Post-Conviction must be filed no later than 90 after entry of judgment and sentence. The [Petitioner] dated his notice 1,238 days after entry of judgment and sentence; consequently, the [Petitioner]'s notice is not timely. However, the [Petitioner] alleges that the untimely filing was not the fault of the [Petitioner] because trial counsel withheld from him the grand jury transcript, a photocopy of the plea agreement, and the transcript of the change of plea hearing. Assuming this is true, this would not have prevented the [Petitioner] from filing a timely notice. The Court does not accept this as a valid reason for the untimely filing. Further, the [Petitioner] claims that the Notice of Post-Conviction Relief he executed was entrusted with staff at the Mohave County Jail and the notice was never delivered to the Court. The Court does not accept this as valid reason. The Court does not find this allegation to be credible. If the [Petitioner] did provide a Notice of PostConviction Relief to jail staff to deliver to the Court, and the notice was not delivered, the [Petitioner] would not have waited over three (3) years to raise this issue. The Notice of Post-Conviction Relief was not filed in a timely manner.(Id. at 29-31)
On October 4, 2021, Petitioner filed a petition for review in the court of appeals.(Id. at 33-75) On January 25, 2022, the court of appeals granted review but denied relief, finding that Petitioner did not establish that the superior court abused its discretion in dismissing Petitioner's PCR notice. (Id. at 77)
Petitioner's petition for review stated only that Petitioner was challenging his conviction in case number CR-2017-01420 (see Doc. 13-1 at 33), but the court of appeals addressed Petitioner's petition for review as to both Mohave County Superior Court case numbers CR-2017-01152 and CR-2017-01420 (Id. at 77).
Petitioner did not file a motion for reconsideration or a petition for review to the Arizona Supreme Court. (Id. at 79) On March 9, 2022, the court of appeals issued its mandate regarding Mohave County Superior Court case numbers CR-2017-01420 and CR-2017-01152. (Id.)
II. PETITIONER'S HABEAS CLAIMS
In his Amended Petition, Petitioner raises six grounds for relief. In Ground One, Petitioner asserts that he could not lawfully be convicted of the crimes of aggravated assault and burglary in the first degree due to insufficient factual bases and that his convictions violate due process under the Fifth, Sixth, and Fourteenth Amendments. (Doc. 8 at 5-12) In Ground Two, Petitioner asserts that the state court did not have subject matter jurisdiction to enter judgment and impose a sentence, thereby violating the Fifth, Sixth, and Fourteenth Amendments. (Id. at 12-15) In Ground Three, Petitioner asserts that his sentence was unauthorized and void in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments because the trial court lacked subject matter and personal jurisdiction. (Id. at 15-18) In Ground Four, Petitioner asserts that his plea agreement was not supported by a sufficient factual basis, violating Petitioner's Fifth, Sixth, and Fourteenth Amendment due process rights. (Id. at 18-20) In Ground Five, Petitioner asserts that his counsel provided ineffective assistance in violation of the Fifth Amendment. (Id. at 20-21) In Ground Six, Petitioner asserts that the state courts abused their discretion in dismissing his PCR proceedings as untimely because Petitioner timely handed a PCR notice to correctional staff. (Id. at 21-22) Petitioner also asserts in Ground Six that the issues presented to the state courts were not precluded under Ariz. R. Crim. P. 33.2(a)(3) and were exempt from a time limitation for filing. (Id.) Petitioner asserts that these proceedings were timely filed, stating that he had one year from the date of the state court's final denial of his PCR proceedings, or until January 2023, to file the Petition. (Id. at 25)
Although Petitioner states on the first page of his Amended Petition that he is challenging his conviction in case number CR-2017-01420, in Ground One Petitioner refers to both his conviction for burglary in the first degree (case number CR-2017-01420) and to his conviction for aggravated assault by domestic violence (case number CR-2017-01152). (Doc. 8 at 9-10)
In their Limited Answer to the Amended Petition, Respondents assert that these proceedings were untimely filed without excuse. (Doc. 13 at 6-9) Respondents further assert that Grounds One, Two, Three, and Six of the Amended Petition are non-cognizable in these proceedings, that Petitioner waived Grounds One through Five by Petitioner's guilty pleas, and that each ground of the Amended Petition is procedurally defaulted without excuse. (Id. at 9-20)
In his reply in support of the Amended Petition, Petitioner asserts that these proceedings were timely filed because he handed his state court PCR notice to correctional staff in a timely manner, “trusting that the jail staff would responsibly and honorably treat the matter with the import it was given” and then “simply wait[ed,]” including through the state of emergency declared in 2020 due to Covid-19. (Doc. 16 at 2-4) Petitioner asserts that correctional staff did not file his April 2018 first PCR notice, causing Petitioner to file his August 17, 2021, PCR notice after the ninety days had already passed. (Id.) Further, Petitioner asserts that the date of filing of his PCR notice should relate back to the date on which he allegedly handed a timely PCR notice to correctional staff. (Id. at 5-6) Petitioner also asserts that Grounds One, Two and Three of the Amended Petition rely on federal constitutional law; that Ground Six “is not a ground for relief so much as it is a contention showing how the State court misapplied Supreme Court precedent and misconstrued the facts”; that Petitioner's guilty plea does not act as a waiver of his claims; and that Petitioner's claims are not unexhausted because the state had an opportunity to address Petitioner's claims during Petitioner's PCR proceedings. (Id. at 6-10)
Petitioner also wrongly asserts in his reply that the Respondents disobeyed an order by filing an answer limited to affirmative defenses. (Doc. 9 at 3-4; Doc. 16 at 5-6)
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. Starting Date of AEDPA's Limitations Period
1. Applicable Filing Date
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)).
Petitioner filed the Petition initiating these proceedings on December 12, 2022, and asserted six grounds for relief: (1) Petitioner could not be lawfully convicted of the charged offenses due to an insufficient factual basis; (2) the state court did not have subject matter jurisdiction to enter a judgment or impose a sentence; (3) Petitioner's sentence was unauthorized and void; (4) the plea agreement was not supported by a sufficient factual basis; (5) Petitioner received ineffective assistance of counsel; and (6) the state courts abused their discretion in denying Petitioner's PCR petition. (Doc. 1 at 5-22)
In dismissing the Petition with leave to amend, the Court determined that Petitioner had not raised any ground for relief that Petitioner was in custody in violation of the Constitution or United States law. (Doc. 5 at 2) The Court warned that Petitioner must:
specifically allege in each ground the particular federal constitutional right allegedly violated, with supporting facts. For example, if Petitioner claims his due process rights are violated, he must also include the federal rights violated, such as the Fifth and Fourteenth Amendments of the United States Constitution. Likewise, if Petitioner claims his right to effective assistance of counsel was violated, he must also include the federal right violated, such as the Sixth Amendment of the United States Constitution.(Doc. 5 at 3)
On April 1, 2023, Petitioner filed his Amended Petition and asserted six grounds for relief: (1) Petitioner could not be lawfully convicted of the charged offense due to an insufficient factual basis, and Petitioner's conviction violated due process under the Fifth, Sixth, and Fourteenth Amendments; (2) the state court did not have subject matter jurisdiction to enter a judgment or impose a sentence, in violation of the Fifth, Sixth, and Fourteenth Amendments; (3) Petitioner's sentence was unauthorized and void in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (4) Petitioner's plea agreement was not supported by a sufficient factual basis, violating due process and the Fifth, Sixth, and Fourteenth Amendments; (5) counsel provided ineffective assistance in violation of the Fifth, Sixth, and Fourteenth Amendments; and (6) the state courts abused their discretion in denying Petitioner's PCR petition. (Doc. 8 at 5-22)
A habeas petitioner may amend or supplement a petition “as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Pursuant to Fed.R.Civ.P. 15(c), an amended petition will relate back to the date of the original petition when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading[.]” The filing date of an amended petition will not relate back to the filing date of the initial petition “when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). Relation back is “ordinarily allowed ‘when the new claim is based on the same facts as the original pleading and only changes the legal theory[.]'” Id. at 664 n.7 (quoting 3 J. Moore, et al., Moore's Federal Practice § 15.19[2], [. 15-82 (3d ed. 2004)).
Petitioner's claims in the Amended Petition assert claims arising out of the same events and occurrences that Petitioner attempted to set out in the original Petition filed with this Court on December 12, 2022. Petitioner's claims in the Amended Petition are nearly identical to Petitioner's claims in the original Petition, with the addition of federal constitutional language, and Petitioner sets forth facts in the Amended Petition that do not differ in time or type from the facts set forth in the original Petition. Petitioner's added language only changes the underlying legal theory for his claims by providing federal constitutional bases for his claims. See id. Petitioner adds no new claims in the Amended Petition. Because Petitioner's grounds for relief in the Amended Petition are supported by and arise out of the same facts and events as Petitioner's grounds for relief in the original Petition, the date of filing of the Amended Petition will relate back to the date of filing of the Petition. Therefore, for AEDPA statute of limitations purposes, this Report and Recommendation uses December 12, 2022, the date Petitioner placed the Petition in the prison mailing system, as the applicable filing date for the Amended Petition. See id. at 664.
See footnote 2, supra.
2. AEDPA's Start Date
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 Amended Petition's claims arise from a final judgment and sentence, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless a later start date applies under 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Here, the record does not present any basis for a later start date pursuant to 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Under 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.”
Petitioner's assertion, which was rejected by the Mohave County Superior Court as not credible (Doc. 13-1 at 30), that Petitioner timely handed prison officials his state PCR notice in 2018 but that the PCR notice was not sent by prison officials to the superior court for filing does not constitute an argument that there was state action which impeded Petitioner's filing of a habeas proceeding in this Court. See 28 U.S.C. § 2244(d)(1)(B). Petitioner does not claim that he tried to file his federal habeas petition earlier than the original Petition in this action. (Doc. 1)
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 Ariz. R. Crim. P. 32 (now Rule 33). See Ariz. R. Crim. P. 17.2(3); A.R.S. § 13-4033(B). At the time of Petitioner's sentencing, Rule 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.
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.
Petitioner was sentenced in Mohave County Superior Court case numbers CR-2017-01420 and CR-2017-01152 on March 28, 2018. (Doc. 13-1 at 21-25) Following sentencing, Petitioner had 90 days, until June 26, 2018, to file a PCR notice in the superior court. The superior court record is clear that no PCR notice was filed with the superior court within 90 days of sentencing. Indeed, no PCR notice was filed with the superior court until August 2021, more than three years after the PCR notice deadline. When the time to file a Rule 32 (now Rule 33) notice expired on June 26, 2018, Petitioner's convictions and sentences became final. Summers, 41 F.3d at 711, 716-17. AEDPA's one-year statute of limitations therefore commenced to run on June 27, 2018, and the period for Petitioner to file a timely habeas petition expired on June 26, 2019. 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...”). Petitioner did not file these habeas proceedings until December 12, 2022, three and a half 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.
In the equitable tolling section, infra, the Court will address Petitioner's assertion, which was rejected by the Mohave County Superior Court as not credible (Doc. 13-1 at 30), that Petitioner timely handed prison officials his state PCR notice in 2018 but that the PCR notice was not sent by prison officials to the superior court for filing.
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 PCR 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).
The superior court determined that Petitioner's August 17, 2021, PCR notice was untimely by over three years. (Doc. 13-1 at 29-31) The superior court found that Petitioner did not file his PCR notice within 90 days of sentencing, see Ariz. R. Crim. P. 33.1, 33.4(B)(3)(A), and did not provide sufficient reasons to excuse his untimely PCR notice, see Ariz. R. Crim. P. 33.2(b)(1). (Doc. 13-1 at 29-31) Because an untimely PCR notice does not statutorily toll AEDPA's limitations period, Pace, 544 U.S. at 414, Petitioner's untimely PCR notice did not toll the limitations period. In any event, because Petitioner's August 2021 PCR notice was filed after AEDPA's limitations period expired in June 2019 (Doc. 13-1 at 29), Petitioner's PCR notice could not restart AEDPA's 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 limitations 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).
In the Amended Petition, Petitioner asserts that he completed a PCR notice “with the assistance of another prisoner” and handed the PCR notice to correctional staff in April 2018. (Doc. 8 at 8) Petitioner states that he was advised by an unknown party that the state court could take up to two years to act on a PCR petition and that he “accepted” that any PCR filing would be delayed by the subsequent spread of Covid-19. (Id.) Petitioner states that in February 2021, the prisoner who had assisted Petitioner with the 2018 PCR notice told Petitioner that due to Covid-19, it might take the superior court longer to process the PCR notice. (Id.) Nevertheless, after the state court addressed a motion regarding Petitioner's pre-sentence credits on February 25, 2021, he began to question why the state court had not acted on his 2018 PCR notice. (Id. at 8-9) A “complex paralegal” then told Petitioner that “courts were still closed for hearings, but would address simple issues by motion.” (Id. at 9) Petitioner then “chose to await action by the court.” (Id.) Petitioner also asserts that in July 2021, another prisoner told him that PCR petitions were being processed and that Petitioner should file another PCR notice. (Id.; see also Doc. 16 at 4)
In Petitioner's reply in support of the Amended Petition, Petitioner cites the prison mailbox rule and asserts that a PCR notice is filed on the date that Petitioner signs and hands a notice to correctional staff. (Doc. 16 at 2-4) Petitioner again asserts that he provided a timely PCR notice to correctional staff in April 2018, that this PCR notice was never filed, and that he filed his August 2021 PCR notice upon learning that the April 2018 PCR notice was not filed. (Id.) Petitioner asserts that he had no ability to monitor the filing of a PCR notice and that he alerted the state court to correctional staff's failure to file his April 2018 PCR notice in his August 2021 PCR notice. (Id. at 4) Further, Petitioner asserts that under Fed.R.Civ.P. 15(c)(1)(B) and 10(c), the filing date of his August 17, 2021, state court PCR notice should relate back to the date he allegedly handed a timely state court PCR notice to correctional staff. (Id. at 5)
Insofar as Petitioner's argument regarding relation back of his state PCR notice, the Federal Rules of Civil Procedure apply to “all civil actions and proceedings in the United States district courts,” but not to proceedings in state court. Fed.R.Civ.P. 1. As such, Fed.R.Civ.P. 15(c)(1)(B) and 10(c) cannot apply to Petitioner's August 2021 PCR notice. Further, in dismissing Petitioner's August 17, 2021, PCR notice, the superior court recognized that the filing date of the August 2021 PCR notice was the date it was signed by Petitioner. (Doc. 13-1 at 29) The superior court then addressed Petitioner's arguments regarding timeliness of Petitioner's PCR notice:
On March 28, 2018, pursuant to the terms of a Felony Plea Agreement, the [Petitioner] was sentenced to serve 7.5 years in the Arizona Department of Corrections. Pursuant to Rule 33.4, Arizona Rules of Criminal Procedure, the Notice of Post-Conviction must be filed no later than 90 after entry of judgment and sentence. The [Petitioner] dated his notice 1,238 days after entry ofjudgment and sentence; consequently, the [Petitioner's notice is not timely. However, the [Petitioner] alleges that the untimely filing was not the fault of the defendant because trial counsel withheld from him the grand jury transcript, a photocopy of the plea agreement, and the transcript of the change of plea hearing. Assuming this is true, this would not have prevented [Petitioner] from filing a timely notice. The Court does not accept this as a valid reason for the untimely filing. Further, [Petitioner] claims that the Notice of Post-Conviction Relief he executed was entrusted with staff at the Mohave County Jail and the notice was never delivered to the Court. The Court does not accept this as valid reason. The Court does not find this allegation to be credible. If [Petitioner] did provide a Notice of PostConviction Relief to jail staff to deliver to the Court, and the notice was not delivered, [Petitioner] would not have waited over three (3) years to raise this issue. The Notice of Post-Conviction Relief was not filed in a timely manner.(Id. at 29-30)
Similarly, regarding these habeas proceedings, Petitioner has not shown that any extraordinary circumstance prevented him from filing a timely federal habeas petition or that he acted with reasonable diligence in filing his federal habeas petition. All of Petitioner's equitable tolling arguments pertain to Petitioner's state PCR notice, not to Petitioner's filing of a federal habeas petition. Nevertheless, a petitioner's “lack of knowledge that the state courts have reached a final resolution of his case” can constitute an extraordinary circumstance for purposes of equitable tolling if the petitioner has “acted diligently to obtain notice” of the state court's decision. Ramirez v. Yates, 571 F.3d 993, 997-98 (9th Cir. 2009). Likewise, Petitioner's assertion and arguments that he handed prison officials an April 2018 PCR notice should be evaluated under the equitable tolling doctrine.
Petitioner has not provided any documentary support for his assertion that he timely handed a PCR notice to correctional staff in April 2018, such as a photocopy of the PCR notice. Further, the superior court proceedings and Petitioner's actions relating to such between Petitioner's sentencing and his August 2021 PCR notice do not align with Petitioner's claim that he handed the PCR notice to correctional staff in April 2018 and then waited years to follow up. For example, in his Amended Petition and in his previous petition for review to the Arizona Court of Appeals from the denial of his August 2021 PCR proceedings, Petitioner described that the superior court restitution proceedings set at Petitioner's March 2018 sentencing did not resolve until October 31, 2018. (Doc. 8 at 8; Doc. 13-1 at 44) Petitioner recounts that during the seven months following his March 2018 sentencing in the two cases, Petitioner was represented by counsel in the restitution proceedings, that his appointed counsel failed to object in the superior court to the lack of support for the restitution claim, that Petitioner did so himself, and that the state needed additional time for the restitution hearing for obtaining documentation, which delayed finalization of restitution proceedings in the superior court until October 31, 2018. (Id.) Also, a June 8, 2021, letter to Petitioner from the clerk of the superior court, which Petitioner attached to his petition for review to the Arizona Court of Appeals, reflects that Petitioner had made a request for grand jury transcripts before filing his August 2021 PCR notice. (Doc. 13-1 at 64) Indeed, Petitioner blamed the delay of his August 2021 PCR notice filing in part on his trial counsel's withholding of a grand jury transcript. (Id. at 30)
On the record before this Court, the Court agrees with the superior court that Petitioner's assertion that he handed prison officials a state court PCR notice in April 2018 is not credible:
Further, [Petitioner] claims that the Notice of Post-Conviction Relief he executed was entrusted with staff at the Mohave County Jail and the notice was never delivered to the Court. The Court does not accept this as valid reason. The Court does not find this allegation to be credible. If [Petitioner] did provide a Notice of Post-Conviction Relief to jail staff to deliver to the Court, and the notice was not delivered, [Petitioner] would not have waited
over three (3) years to raise this issue. The Notice of Post-Conviction Relief was not filed in a timely manner.(Doc. 13-1 at 30) Given such agreement, this Court cannot find that the superior court's factual finding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Still, even if one accepts that Petitioner's assertion about handing a PCR notice to correctional staff in April 2018 is true, Petitioner did not act with reasonable diligence. Instead of reasonably and timely inquiring as to the status of his April 2018 PCR notice, Petitioner waited over three years to follow up regarding the status of his PCR notice, from April 2018, when he allegedly handed a PCR notice to correctional staff, to August 2021, when Petitioner signed his PCR notice that was actually filed in the superior court. Indeed, Petitioner expressed that he believed the restitution proceedings were unreasonably delayed in that the proceedings lasted seven months after Petitioner's sentencing. Petitioner reports that he took actions in those post-sentencing 2018 restitution proceedings to try to bring the restitution matter to a fair conclusion despite having counsel in the restitution proceedings. If it is unreasonable to wait seven months for restitution proceedings to conclude, it is unreasonable to wait over three years into a 7.5-year prison sentence to follow up regarding a PCR notice and required associated proceedings. Ramirez, 571 F.3d at 997-98.
Insofar as Petitioner asserts that he believed the court was not holding hearings during the Covid-19 pandemic beginning in 2020, Petitioner concedes in his Amended Petition that he knew the superior court was accepting filings and addressing “simple issues by motion” during the Covid-19 pandemic. (Doc. 8 at 9) Moreover, during this period, Petitioner had the ability to file other motions, including a February 2021 motion regarding his pre-sentence credits, and Petitioner does not assert that he was prevented from submitting any filings in state court between handing the April 2018 PCR notice to prison officials and his August 2021 PCR notice. Rather, Petitioner asserts that he believed that the state court could take up to two years to act on his PCR filing and that he “chose to await action by the court” for over three years before his August 2021 PCR filing. (Doc. 8 at 8-9; see also Doc. 16 at 4)
Insofar as Petitioner asserts that he relied on the representations and advice of a fellow inmate regarding PCR filings and timing of superior court proceedings, Petitioner's pro se status and reliance on the fellow inmate are not extraordinary circumstances warranting equitable tolling. Felder, 204 F.3d at 171; see also Dominguez v. Paramo, 2017 WL 11634054, at *2 (C.D. Cal. Jan. 31, 2017) (jailhouse lawyer errors, including miscalculation of statute of limitations, not an extraordinary circumstance); Payne v. Paramo, 2015 WL 2389844, at *3 (E.D. Cal. May 19, 2015) (collecting cases; no equitable tolling for reliance on jailhouse lawyer's incorrect advice). When a petitioner relies on the assistance of other inmates, the petitioner maintains “the personal responsibility of complying with the law.” Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (internal citation omitted).
“As with other equitable considerations, determining whether a petitioner acted with reasonable diligence is a fact-specific inquiry.” Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016) (citing Holland, 560 U.S. at 649-50; Busby, 661 F.3d at 1011). The Ninth Circuit has emphasized that “this is ‘not the arena of bright-lines and dates certain.'” Id. (quoting Busby, 661 F.3d at 1015). Courts “are guided by ‘decisions made in other similar cases ... with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.'” Id. (quoting Holland, 560 U.S. at 650). On this record, Petitioner has not shown that he acted with sufficient diligence to obtain notice of the state court posture of his April 2018 PCR notice before the filing of his August 2021 PCR notice.
“A petitioner must act with reasonable diligence both before and after receiving delayed notice that the state denied his habeas petition[,]” or, as in this case, before and after finding out that his April 2018 PCR notice was not received by the superior court. Fue, 842 F.3d at 656. Petitioner must demonstrate diligence “up to the time of filing his claim in federal court.” Smith, 953 F.3d at 599. Importantly, Petitioner did not act with reasonable diligence after Petitioner's August 2021 PCR notice, after the superior court's September 1, 2021, decision that Petitioner's August 2021 PCR notice was untimely, or even after receiving the Arizona Court of Appeals' January 2022 denial of relief in response to his petition for review in the PCR proceedings Petitioner had initiated in August 2021. Petitioner did not file these habeas proceedings until December 2022, over ten months after the court of appeals' decision. See Smith, 953 F.3d at 598-99, 601-02 (expressly rejecting the “stop-clock” approach to equitable tolling and stating that for equitable tolling to apply, a 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”). Petitioner provides no reason for waiting to file these habeas proceedings over a year after the superior court's September 2021 rejection of Petitioner's August 2021 PCR notice as untimely and over ten months after the Arizona Court of Appeals' January 2022 denial of relief in response to his petition for review in the PCR proceedings.
The Supreme Court has held that an untimely petition for state postconviction relief is not a basis for statutory tolling, and that a petitioner who wishes to preserve the ability to seek federal review should file a “‘protective' petition in federal court and ask[ ] the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” Pace, 544 U.S. at 416; see Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). Because Petitioner had the ability to file a federal protective petition while pursuing state relief, no extraordinary circumstance prevented him from filing his federal petition pending his PCR proceedings initiated in August 2021. See Smith, 953 F.3d at 600 (citing Holland, 560 U.S. at 649-50).
Petitioner has not met his burden of showing that he has been pursuing his rights with the reasonable diligence required for equitable tolling 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)).
Petitioner argues in Ground One of the Amended Petition that insufficient factual bases supported his convictions for the offenses of aggravated assault by domestic violence and burglary in the first degree. (Doc. 8 at 9-10) Petitioner argues that the evidence did not support the elements of the offense “and it cannot be shown on this record that the State could prove any element it is required to prove[.]” (Id.) These arguments are legally insufficient to meet the actual innocence gateway.
In addition, Petitioner plead guilty to the offenses in open court. (Doc. 13-1 at 13). After open court review and discussion of the elements of each offense and the factual bases, the trial court found “that there is a factual basis for the plea(s)” and that Petitioner knowingly, intelligently, and voluntarily plead guilty to the crimes of conviction. (Doc. 131 at 13) Further, Petitioner does not include any attachments to his Amended Petition or Reply and has not otherwise provided to the Court any “new reliable evidence[,]” Schlup, 513 U.S. at 324, showing that “it is more likely than not that no reasonable juror would have convicted him[.]” McQuiggin, 569 U.S. at 399. Rather, Petitioner rehashes the various accounts of the events underlying his offenses, all of which were available at the time of the guilty pleas by and sentencing of Petitioner. (Doc. 13-1 at 38-41) Petitioner expressly recalls that before his guilty pleas, his trial counsel discussed with Petition the “severe contradicting statements” of the witnesses. (Id. at 41)
The Ninth Circuit has left open the question of “whether the Schlup actual innocence gateway 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.”).
Further, Petitioner claims that in an April 2018 PCR notice he asserted that “there is clear and convincing evidence that the facts underlining [sic] the claim would be sufficient to establish that no reasonable fact-finder would find the [Petitioner] guilty of the offense beyond a reasonable doubt.” (Doc. 8 at 3) Petitioner's arguments are not based on new evidence.
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
As explained above, these habeas proceedings were untimely filed, 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 December 12, 2022, filing of this action was untimely. Therefore, it is recommended that the Amended Petition be dismissed with prejudice and that this matter be terminated. Because of the untimeliness of these proceedings, Respondents' other arguments of procedural default, non-cognizability, and waiver are 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 Tyler Matthew Pierson-Haupt's Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 8) 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.