Opinion
CV-22-02097-PHX-DWL (ASB)
10-12-2023
Sherrod Quintell Shervington, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
Honorable Alison S. Bachus United States Magistrate Judge
On December 9, 2022, Petitioner Sherrod Quintell Shervington (“Petitioner”), who is confined in the Arizona State Prison Complex - Tucson, filed a pro se Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc. 1.) For the reasons that follow, the Court recommends that the Petition be denied and dismissed.
This Petition was docketed by the Clerk of Court on December 12, 2022 (Doc. 1). The Petition contains Petitioner's scanned envelope used to mail the Court his Petition. The date stamped on the envelope indicates Petitioner placed the Petition in the prison mailing system on December 9, 2022 (Doc. 1 at 26). Under the prison mailbox rule, the undersigned has used December 9, 2022, as the filing date. See Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001) (“Under the ‘prison mailbox rule,' a prisoner's federal habeas petition is deemed filed when he hands it over to prison authorities for mailing to the district court.”) (internal citation omitted).
Citation to the record indicates documents as they are displayed in the District of Arizona's official Court electronic document filing system under Case No. CV-22-02097-PHX-DWL (ASB).
PROCEDURAL HISTORY
I. State Proceedings
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court's opinion should not be afforded the presumption of correctness).
Shervington was convicted by a jury of driving while having a prescribed drug in his body with a suspended or revoked license, a class 4 felony (“count two”); driving while having a prescribed drug in his body with a minor in the car, a class 6 felony (“count four”); and false reporting to law enforcement, a class 1 misdemeanor (“count five”).
After the verdict, the superior court heard evidence that Shervington had historical prior felony convictions (“HPFC”) and accepted a stipulation that he was on probation at the time of the offenses. The State alleged Shervington had three prior felony convictions, only two of which qualified as historical priors. At sentencing, the court found all three prior convictions were historical priors and that Shervington was on probation at the time of the offenses.
On count two, a class 4 felony, the court sentenced Shervington to a presumptive prison term of 10 years as a category-three repetitive offender under Arizona Revised Statutes (A.R.S.) § 13-703(J). On count four, the court treated the offense as a class 4 felony and sentenced Shervington as a non-repetitive offender to a concurrent prison term of 2.5 years. In addition, the court imposed $4,622.50 in fines and assessments for each count, citing A.R.S. § 13-3405.(Doc. 9-1, Exh. G, at 2) (internal citation omitted).
B. Direct Appeal
On April 22, 2019, Petitioner filed a notice of appeal. (Doc. 9-1, Exh. D.) On February 3, 2020, Petitioner filed a direct appeal and asserted one issue: “The trial court made several errors at sentencing resulting in an illegal sentence. Should the court remand the matter for a new sentencing?” (Doc. 9-1, Exh. E, at 5.) On July 16, 2020, the Arizona Court of Appeals affirmed as modified: (1) Count four's sentence is one year, and (2) the fines and assessments for each count are concurrent. (Doc. 9-1, Exh. G.) Petitioner did not file a motion for reconsideration or a petition for review. (Doc. 9-1, Exh. H.) The Mandate issued October 15, 2020. (Id.)
C. Post-Conviction Relief Proceedings
Petitioner did not file a petition for post-conviction relief in the state courts. (Doc. 1 at 3.)
II. Federal Proceedings
A. Petitioner's Habeas Petition
On December 9, 2022, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In his Petition, Petitioner asserts:
GROUND ONE: Petitioner's “equal protection of law” right, as guaranteed under the Fourteenth Amendment, was violated.
GROUND TWO: Petitioner's Fifth Amendment right to due process of law was violated due to a significant change in law, and “Petitioner is now incarcerated in the Department of Corrections under an illegal sentence.”
GROUND THREE: Petitioner's Fifth Amendment right to due process of law was violated due to a significant change in law, and “Petitioner is now incarcerated in the Department of Corrections under a charge that is no longer illegal.”(Doc. 1.)
In response, Respondents argue: (1) the Petition is untimely, and (2) Grounds One, Two, and Three are procedurally defaulted as Petitioner did not present any of his habeas claims to the state courts. (Doc. 9.) Petitioner did not file a Reply, and the time to do so has passed.
ANALYSIS: HABEAS PETITION
I. Applicable Law
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.
A. Timeliness
The AEDPA imposes a one-year limitation period on state prisoners filing habeas corpus petitions in federal court. 28 U.S.C. § 2244(d)(1). The limitation period generally runs from the latest of the following:
(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).
On July 16, 2020, the Arizona Court of Appeals modified and affirmed Petitioner's convictions and sentences. (Doc. 9-1, Exh. G.) Petitioner did not file a motion for reconsideration or a petition for review, and the Mandate issued on October 15, 2020. (Doc. 9-1, Exh. H.) Thus, Petitioner's convictions became final for purposes of the AEDPA on August 16, 2020, upon the expiration of his time for seeking review. See Ariz. R. Crim. P. 31.21(b)(2) (holding in relevant part, “[a] party must file a petition for review no later than 30 days after the Court of Appeals enters its decision[.]”). The AEDPA's one-year statute of limitations therefore began running on August 16, 2020, and expired one year later on August 16, 2021. Petitioner filed the instant Petition on December 9, 2022, more than one year after the one-year limitation period had expired.
In response to the timeliness of the Petition and why the one-year statute of limitations should not bar consideration of his Petition, Petitioner states “laws pertaining to this Petition were not changed and the process of how it applied to [] Petitioner were not yet discovered.” (Doc. 1 at 11.) In Ground One, Petitioner contends due to the “significant change in law,” one of the priors used to enhance count two has now been expunged from his record. (Doc. 1 at 6.) Petitioner argues he was unable to present this claim to the state courts because, under Arizona Proposition 207 (“Prop 207”), the Marijuana Legalization Initiative, one of his priors was not expunged until October 26, 2021. (Id.) Petitioner states he “has recently discovered how the law and expungement would now significantly reduce his enhanced sentence.” (Id.) In Ground Two, Petitioner contends “the legalization of marijuana should prohibit the use of any conviction for marijuana use and or possession as prior convictions during sentencing.” (Id. at 7.) Petitioner reiterates the same argument, supra, as to why he did not present this claim to the state courts. (Id.) In Ground Three, Petitioner contends the “legalization of marijuana provided significant changes and/or revisions to the possession/use of marijuana” and that “no person can be found guilty, convicted, nor incarcerated for Count 2, in which [] Petitioner is being [] incarcerated for.” (Doc. 1 at 8.) Petitioner argues that due to Prop 207, his sentence should be reduced or suspended entirely. (Id.)
Prop 207 passed in Arizona on November 3, 2020. See Proposition 207, Ariz. Jud. Branch, https://www.azcourts.gov/prop207/Timeline (last visited Sept. 26, 2023). In relevant part, it allows “limited marijuana possession, use, and cultivation by adults 21 or older; amend[s] criminal penalties for marijuana possession ... [and] allow[s] expungement of marijuana offenses.” See Proposition 207, Ariz. Jud. Branch, https://www.azcourts.gov/prop207/Overview (last visited Sept. 26, 2023). In the event that Petitioner is arguing his Petition is not barred under 28 U.S.C. § 2244(d)(1)(D), as he only “recently discovered” how Prop 207 may affect his sentences, the argument is unavailing. The statute holds that the one-year limitation period starts running from “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)(D). Further, “[i]f a change in (or clarification of) state law, by a state court, in a case in which [the petitioner] was not a party, could qualify as a ‘factual predicate,' then the term ‘factual' would be meaningless.” Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir. 2005). In other words, a change in state law does not serve as a “factual predicate” for purposes of 28 U.S.C. § 2244(d)(1)(D) in cases where the petitioner was not a party, as is the case here.
Prop 207 was passed two years prior to Petitioner filing the instant Petition. Under the AEDPA's statute of limitations, Petitioner should have filed his habeas Petition no later than the end of 2021, assuming the time began to run when Prop 207 was passed. Petitioner also argues he was unable to comply with the limitation period because his marijuana conviction was not expunged until October 26, 2021. However, even starting the one-year limitation period from this date, Petitioner would have been required to file his Petition on or before October 26, 2022, which he failed to do. Based on this analysis, Petitioner's habeas Petition is untimely unless equitable or statutory tolling applies.
B. Equitable Tolling
The one-year limitation period may be subject to equitable tolling in “appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating “the threshold necessary to trigger equitable tolling [under AEDPA] is very high.”). In the Ninth Circuit, a petitioner is entitled to equitable tolling only if he shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotations and citations omitted). Petitioner bears the burden of establishing that equitable tolling is warranted. 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.”).
In regard to the first prong, a petitioner must demonstrate 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 v. Davis, 953 F.3d 582, 598-99 (9th Cir. 2020). 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; see also Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (holding a prisoner must show that the “extraordinary circumstances” were the cause of his untimeliness). In evaluating whether an “extraordinary circumstance” exists, the Court “must decide the issue based on all the circumstances of the case before it.” Smith, 953 F.3d at 600 (internal quotations and citations omitted). “The grounds for equitable tolling are highly fact-dependent.” Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (quoting Sossa v. Diaz, 729 F.3d 1225, 1237 (9th Cir. 2013)). Notably, a petitioner's pro se status, ignorance of the law, or lack of legal sophistication does not constitute extraordinary circumstances justifying equitable tolling. See Rasberry, 448 F.3d at 1154 (holding a pro se petitioner's ignorance of the law or lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling).
Here, Petitioner does not explicitly argue that equitable tolling applies, but instead argues he was unable to comply with the statute of limitations due to his “recent discovery” of how Prop 207 affects his sentences. (Doc. 1.) As discussed, supra, Prop 207 was passed on November 3, 2020, and Petitioner's marijuana conviction was expunged on October 26, 2021, while the instant Petition was not filed until December 9, 2022. Petitioner proffers no additional reasoning or evidence to explain his delay in filing, nor has he shown that he has been “pursuing his rights diligently,” as required for equitable tolling. See Holland, 560 U.S. at 649. After presenting one issue on direct appeal challenging the trial court's classification of prior felony convictions and calculation of fines, Petitioner did not file any further motions or petitions. Instead, he waited over two years to file the instant habeas Petition and failed to provide convincing argument to excuse the delay.
Thus, Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from timely filing this Petition. Accordingly, equitable tolling is unavailable to Petitioner.
C. Statutory Tolling
The AEDPA also provides for statutory tolling during the time “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). Because Petitioner did not file a petition for post-conviction relief in the state courts, statutory tolling does not apply to this Petition.
D. Actual Innocence
A time-barred federal habeas petition may also be considered by this Court if a petitioner can make a showing of “actual innocence.” See McQuiggin v. Perkins, 569 U.S. 383, 391-96 (2013) (holding that the “actual innocence gateway” extends to petitions that are time-barred under the AEDPA); see also Schlup v. Delo, 513 U.S. 298 (1995) (applying an “actual innocence gateway” to federal habeas procedural bars); Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (“[A] claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits.”). Under Schlup, a petitioner seeking federal habeas review under the actual innocence gateway must establish his factual innocence and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998). 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, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327).
Petitioner does not claim, much less make a showing of, his actual innocence. On appeal, Petitioner did not argue he was innocent of his convictions, but rather argued that
the trial court erred at sentencing. (Doc. 9-1, Exh. E, at 5.) Similarly, in the instant Petition, Petitioner does not claim innocence, but contends he is now serving an “illegal sentence” due to changes in Arizona law. (Doc. 1.) Even if Petitioner's claims could be construed as actual innocence claims, Petitioner has not presented any new reliable evidence as required. See Bousley, 523 U.S. at 623; McQuiggin, 569 U.S. at 399. Accordingly, Petitioner cannot pass through the actual innocence gateway to excuse the untimeliness of his federal habeas Petition.
CONCLUSION
The Court concludes Petitioner's federal habeas Petition was untimely filed and neither equitable tolling, statutory tolling, nor the actual innocence gateway, apply to render the filing of the Petition as timely. The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS THEREFORE RECOMMENDED that Petitioner's 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 Petitioner has not shown jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This Report and 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 fourteen 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 fourteen 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.