Opinion
CV-22-1859-PHX-SPL (JFM)
07-21-2023
Stacy Lee Satzman, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is 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.
The undersigned concludes the Petition is untimely and must be dismissed with prejudice.
I. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. TRIAL COURT
An investigation of a fire a realty office in Bouse, Arizona revealed video showing a man who had been riding an ATV active furtive in front of the office, and eventually throw a rock and then a gas canister with a lit rag into the building. Eventually, investigators identified Petitioner's accomplice, Fullilove, who admitted he started the fire at Petitioner's request. Evidence showed Fullilove lived on Petitioner's property. Petitioner told Fullilove he had agreed to “take care of a problem” for friends, and intended to do so by setting fire to the realty office. Petitioner asked Fullilove to do it for him, asserting threats against Petitioner if it was not done, Petitioner's health issues, and favors done for Fullilove over their 20-year friendship. Petitioner assisted Fullilove by lending him a truck and ATV, and gave him a canister with one-half gallon of gasoline. (Exh. B, Opening Brief at 1; Exh. C, Answering Brief at 1-4.) (Exhibits herein are referenced as follows: to the Petition (Doc. 1) as “Exh. P-___”; and to the Answer (Doc. 14), as “Exh. ___”.)
Petitioner has included cover pages for his exhibits (“Attachments”) R and S (Petition, Doc. 1-5 at 70-71), but no such exhibits are appended.
Petitioner was charged with arson of a structure and possession of a prohibited weapon. He proceeded to a jury trial and was convicted on the arson charge, but acquitted on the weapons charge. Petitioner was sentenced to an aggravated, 12 -year sentence, with four prior felony convictions. (Exh. A, Mem. Dec. at ¶ 2.)
B. DIRECT APPEAL
Petitioner filed a direct appeal, raising through counsel claims of error in failing to excuse biased jurors, and in failing to ask jurors if they had questions for each witness. In a Memorandum Decision issued December 7, 2017 (Exh. A) the Arizona Court of Appeals found no merit to the asserted claims, and affirmed Petitioner's convictions and sentences.
Petitioner filed a Petition for Review (Exh. E), which the Arizona Supreme Court summarily denied on May 30, 2018 (Exh. F). The Arizona Court of Appeals issued its Mandate (Exh. G) on June 29, 2018. Petitioner did not file a petition for certiorari with the U.S. Supreme Court. (Petition, Doc. 1 at 3.)
C. POST-CONVICTION RELIEF
On June 14, 2018 (15 days after the Arizona Supreme Courts ruling) Petitioner commenced his first post-conviction relief (PCR) proceeding by filing a PCR Notice (Exh. H). Counsel was appointed, but eventually filed a Notice of Completion (Exh. J) asserting an inability to find a “colorable” issue for review. Petitioner filed a pro se PCR Petition (Exh. K), the State responded (Exh. L), and Petitioner replied (Exh. M).
At an informal conference, the PCR court appointed new counsel. New counsel again filed a Notice of Completion (Exh. O) evidencing inability to find an issue for review. The court denied Petitioner leave to file an amended Petition, and instead summarily denied the pro se Petition in an order filed on November 17, 2020 (Exh. Q).
Seventeen days later, on December 4, 2020, Petitioner filed a Motion for Rehearing (Exh. R), which was denied on March 18, 2021 (Exh. S).
Some 57 days later, on May 14, 2021, Petitioner filed with the Arizona Court of Appeals a Petition for Review (Exh. T). On May 18, 2021, that court summarily denied the petition as untimely (Exh. U), instructing Petitioner that extensions of time to seek review could be granted by the “trial court.”
On May 28, 2021, Petitioner filed with the Arizona Court of Appeals a Motion to Reinstate (Exh. P-O), arguing justifications for his delayed filing, and attaching an unfiled Motion to Extend to the PCR court which was dated April 14, 2021, and a prison legal mail log showing Petitioner' mailing documents to the Superior Court on April 14, 2021. Petitioner argued his motion to extend had not been decided. On June 4, 2021, the Arizona Court of Appeals denied (Exh. P-P) the Motion to Reinstate, again advising that only the trial court could grant an extension.
On June 15, 2021, Petitioner filed with the PCR court his Motion to Extend (Exh. V) dated April 14, 2021, seeking an extension of time to seek review. No motion was filed with the PCR court between the March 18, 2021 order denying rehearing and the June 15, 2021 Motion to Extend. (Exh. Y, Trial Docket.) Orders were docketed by the PCR court on May 18, 2021 and July 6, 2021. The parties have not provided copies of the first order. The first corresponds with the appellate court Order on that date (Exh. U). The second is the appellate court's order issued July 2, 2021 (Exh. Z). Both parties assert the motion to extend was never decided. (Answer, Doc. 14 at 5; Reply, Doc. 16 at 3.) The undersigned finds that the Motion to Extend was never ruled on by the PCR court.
On July 2, 2021 Petitioner filed a Petition for Review (Exh. P-Q) with the Arizona Supreme Court. In response the Arizona Court of Appeals “reinstated this appeal for the purpose of transferring documents requested by the Arizona Supreme Court for review.” (Exh. W, Order 7/8/21). On November 19, 2021, the Arizona Supreme Court summarily denied the petition for review. (Exh. X.)
D. FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at San Luis, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 31, 2022 (Doc. 1). The Petition includes a declaration that it was “placed in the prison mailing system on October 27, 2022. (Doc. 1 at ordinal page 33.) “Petitioner raises one ground for relief in which he claims his Fifth, Sixth, and Fourteenth Amendment rights to a fair trial were violated by a ‘tainted jury.'” (Order 1/5/23, Doc. 6 at 1.)
Response - Respondents' Limited Answer (Doc. 14) argues that the Petition is untimely, but concedes proper exhaustion.
Reply - Petitioner's Reply (Doc. 16) argues that his PCR Petition for Review must be deemed timely filed because he on April 14, 2021 he forwarded to the PCR court a motion to extend the time to file such petition within 30 days of the denial of his motion for reconsideration, and that the motion (founded upon disruptions to resource library access related to “the COVID crisis”) was meritorious. He argues because his April 14, 2021 motion to extend remains pending, he is entitled to equitable tolling.
II. APPLICATION OF LAW TO FACTS
A. COMMENCEMENT OF LIMITATIONS PERIOD
A 1-year statute of limitations governs 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.
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). 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 rules of the Supreme Court of the United States, requires that a petition for a writ of certiorari be filed “within 90 days after entry of the order denying discretionary review.” U.S.S.Ct. R. 13(1).
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.
Because Petitioner did not file a petition for a writ of certiorari, his conviction became final 90 days after the Arizona Supreme Court denied review on May 30, 2018 (Exh. F), i.e. on Tuesday, August 28, 2018. Ordinarily his one year would have commenced running thereafter, and have expired one year later on August 28, 2019. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying “anniversary method” to habeas statute of limitations).
“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).” U.S.S.Ct. R. 13(3).
Citing Patterson and the anniversary method, Respondents calculate the last day as August 29, 2019, rather than August 28, 2019. But Patterson identified the trigger date (in that instance, the enactment of the AEDPA on April 24, 1996) not the commencement date (in that instance, April 25, 1996) as the relevant anniversary, concluding the one year expired on April 24, 1997.
B. STATUTORY TOLLING
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).
Here, Petitioner commenced his state PCR proceeding on June 14, 2018, when he filed his PCR Notice (Exh. N), which was before his limitations period commenced running on August 29, 2018. That proceeding remained pending at least through November 17, 2020, when it was dismissed by the PCR court. (Exh. Q, Order 11/17/20.)
However, Petitioner then timely filed a Motion for Rehearing (Exh. R) on December 4, 2020. See Ariz. R. Crim. Proc. 32.14(d) (time for motion for rehearing). That motion remained pending until March 18, 2021, when the PCR Court denied it (Exh. S).
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 the right to seek further review of the PCR's court's ruling within 30 days of the March 18, 2021 ruling on his Motion for Rehearing (or by Tuesday, April 17, 2021) by way of a petition for review under Arizona Rule of Criminal Procedure 32.15. Because Petitioner did not file his Petition for review until May 14, 2021, his PCR proceeding ceased to be pending on Tuesday April 17, 2021.
Untimely requests for further review do not extend the pendency of a postconviction review proceeding. Carey v. Saffold, 536 U.S. 214 (2002). Thus, Petitioner's subsequent, untimely Petition for Review (Exh. T) did not extend the pendency of the proceeding.
Petitioner argues that he timely sought additional time to file his Petition for Review. But Petitioner admits such additional time was never granted. Moreover, the Arizona Court of Appeals ruled that his Petition for Review was untimely. (See Exh. U, Order 5/18/21.) If a state court clearly rules that a state petition is untimely, then that is “the end of the matter.” Carey, 536 U.S. at 226. “When a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). “AEDPA's tolling rule is designed to protect the principles of ‘comity, finality, and federalism,' by promoting ‘the exhaustion of state remedies while respecting the interest in the finality of state court judgments.'” Carey v. Saffold, 536 U.S. 214, 222 (2002). If the state courts have determined their state remedies are at a close, it is not for a federal habeas court to rethink that determination.
At best, Petitioner's Petition for Review could be considered a new application for post-conviction relief. However, statutory tolling of the habeas limitations period only results from state applications that are “properly filed,” and an untimely application is not “properly filed” within the meaning of § 2244(d)(2). Artuz v. Bennett, 531 U.S. 4, 8 (2000). Thus, such new application did not result in any additional tolling.
C. ORDINARY TIMELINESS
Thus, Petitioner's habeas limitations period was tolled from its commencement through April 17, 2021, when his time to file a petition for review in his PCR proceeding expired. It began running thereafter, and expired one year later on April 17, 2022. Petitioner's habeas Petition was not filed until October 31, 2022. However, “[i]n determining when a pro se state or federal petition is filed, the ‘mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Here, Petitioner's Petition asserts it was delivered to prison officials for filing on October 27, 2022. Even if deemed filed as of that date, Petitioner's Petition was over six months delinquent.
D. EQUITABLE TOLLING
"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). 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 (9thCir. 2006).
Petitioner argues that his never-filed April 14, 2021 motion to extend justifies equitable tolling. Indeed, in Rudin v. Myles, 781 F.3d 1043 (9th Cir. 2015) the Ninth Circuit refused to recognize statutory tolling for a state petition rejected as untimely, even though the state court's timeliness decision was purportedly wrong. The Court went on, however, to consider whether such an erroneous state court ruling might provide grounds for equitable tolling. “To be entitled to equitable tolling of the AEDPA limitations period, [the petitioner] thus bears the burden to prove that she has been pursuing her rights diligently but that extraordinary circumstances made it impossible for her to file her application on time.” Id. at 1055.
Assuming arguendo that the state courts erred in failing to acknowledge and grant his motion to extend, and to accept his Petition for Review as timely, Petitioner proffers no explanation why that precluded him from timely filing his federal habeas petition. Petitioner was well aware at least as of Arizona Supreme Court's Ruling on November 19, 2021 that he would have no relief from the State courts. Arguably he was aware of his predicament at least since the Arizona Court of Appeals denied his Petition for Review on May 18, 2021. Petitioner offers no explanation why he could not have, at that juncture, promptly filed his habeas petition. Even assuming he would have required some reasonable amount of time to prepare his habeas petition, his habeas limitations period did not expire until April 17, 2022, almost five months after the Arizona Supreme Court's Ruling, and almost 11 months after the Arizona Court of Appeals' ruling. He offers no explanation why it was impossible for him to file by April 17, 2022. Nor does he offer any explanation why he could not have filed sooner than the additional six months that he took to file, i.e. until October 27, 2022.
To the extent that Petitioner might argue he was taken unaware of the legal effect of those rulings on the running of his limitations period, that does not justify equitable tolling. “[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). “[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.” Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.1999). Rather, to qualify for equitable tolling, “an external force must cause the untimeliness, rather than.. .merely oversight, miscalculation or negligence on the petitioner's part.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (citations, quotations and alterations omitted).
To be sure, Petitioner had a legitimate reason for seeking to press to have his PCR petition heard; he was required to exhaust his state remedies on any habeas claims before filing his habeas petition. But, in Pace the Supreme Court analyzed the potential catch-22 between the habeas limitations period and the exhaustion requirement, 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.” 544 U.S. at 416. Petitioner proffers no reason why this avenue was not available to him.
Moreover, as conceded by Respondents, the Petition asserts only claims that were already exhausted in Petitioner's direct appeal.
E. 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)). “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.
Petitioner makes no claim of actual innocence based on new credible evidence, and the record reveals none.
F. SUMMARY RE STATUTE OF LIMITATIONS
Taking into account the available statutory tolling, Petitioner's one year habeas limitations period commenced running on April 18, 2021, and expired on April 17, 2022, making his Petition (deemed filed October 27, 2022) over six 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.
III. 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). See 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.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.
(B) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
V. 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.”