Opinion
CV-21-01469-PHX-SPL (MTM)
05-26-2022
Samuel Yazzie Webb, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Petitioner Samuel Yazzie Webb petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1.
I. SUMMARY OF CONCLUSION
In Arizona Superior Court, a jury convicted Petitioner of second degree murder. Petitioner asserts two grounds for relief. First, he asserts the State failed to disclose a police disciplinary file in violation of Brady v. Maryland, 373 U.S. 83 (1963). Second, he asserts his due process rights were violated when the State was allowed to introduce evidence of injuries he allegedly sustained in connection with the murder. But because Petitioner untimely sought federal habeas relief, and Petitioner is not entitled to equitable tolling, the Court recommends the Petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction and Sentencing
The State indicted Petitioner on one count of second degree murder. Doc. 7-1, Ex. A, at 3. The jury found Petitioner guilty, and the Superior Court sentenced Petitioner to eighteen years' imprisonment. Doc. 7-1, Ex. B, at 7-8.
B. Direct Appeal
Petitioner timely appealed to the Arizona Court of Appeals. The Arizona Court of Appeals affirmed his conviction and sentence on October 17, 2013. Doc. 7-1, Ex. C, at 12, 19. Petitioner sought review from the Arizona Supreme Court, but it denied his petition for review on March 4, 2014, and the Arizona Court of Appeals issued its mandate on April 4, 2014. Doc. 7-1, Ex. C, at 12.
C. Post-Conviction Relief Proceedings
After the Arizona Supreme Court denied review but before the Arizona Court of Appeals issued its mandate, Petitioner filed his first notice of post-conviction relief in Superior Court on March 26, 2014. Doc. 7-1, Ex. D, at 21. Counsel searched the record but found no issue to raise. Doc. 7-1, Ex. E, at 25. After a series of motions and amendments spanning several years, Petitioner filed what ultimately became his amended petition for the Superior Court's review on February 7, 2018 (doc. 7-2, Ex. G, at 2). See doc. 7-2, Ex. H, at 39-43 (State's response to amended petition recounting the procedural history of the post-conviction relief proceedings). The Superior Court denied the amended petition on August 6, 2018, ruling his claims were either precluded or without merit. Doc. 7-2, Ex. J, at 67-68. Petitioner sought review; the Arizona Court of Appeals granted review but denied relief on January 17, 2019. Doc. 7-3, Ex. K, at 3-4. Though Petitioner moved for reconsideration, the motion was denied on February 8, 2019. Doc. 7-3, Ex. K at 2. Petitioner did not seek review from the Arizona Supreme Court, and the Arizona Court of Appeals issued its mandate on March 13, 2019. Doc. 7-3, Ex. K, at 2. During this time, Petitioner sought special-action relief in the Arizona Court of Appeals (doc. 1-3 at 1), but the Arizona Court of Appeals declined jurisdiction on March 21, 2019 (doc. 1-2 at 37).
Petitioner filed his second notice for post-conviction relief on October 23, 2019. Doc. 7-3, Ex. L, at 6. The Superior Court denied his second petition for post-conviction relief on November 25, 2019. Doc. 7-3, Ex. M, at 18. Petitioner attempted to seek review from the Arizona Court of Appeals, but the court dismissed his petition for review as untimely. Doc. 7-3, Ex. N, at 23.
Petitioner filed his third notice of post-conviction relief on June 18, 2020. Doc. 7-3, Ex. O, at 25. The Superior Court denied the third petition on September 29, 2020. Doc. 73, Ex. P, at 48. Petitioner sought review from the Arizona Court of Appeals, which granted review but denied relief on June 10, 2021. Doc. 7-3, Ex. T, at 78. Petitioner moved for reconsideration, which was denied on June 28, 2021. Doc. 7-3, Ex. T, at 78. Petitioner timely sought review from the Arizona Supreme Court on July 15, 2021, but it denied review on March 4, 2022. Doc. 14 at 3.
III. PETITION FOR WRIT OF HABEAS CORPUS
Petitioner filed his federal habeas Petition on August 25, 2021. Doc. 1. As summarized in this Court's Order, Petitioner raises two grounds for relief: “In Ground One, Petitioner alleges that the state failed to disclose a disciplinary file for one of the police officers who testified at Petitioner's trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Bagley, 473 U.S. 667 (1985). In Ground Two, Petitioner claims that his due process rights were violated when the state was permitted to introduce evidence of facial injuries that he allegedly incurred in connection with the victim's murder but did not actually receive until days after the murder had occurred.” Doc. 5 at 1-2.
A. The Petition is Untimely.
This Court may review petitions for a writ of habeas corpus from individuals held in custody under a state-court judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations for state prisoners to file habeas petitions. Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1059 (9th Cir. 2007); 28 U.S.C. § 2244(d). As explained below, the Petition is untimely by over 500 days because post-conviction proceedings in state court tolled some, but not all, of the time between Petitioner's conviction becoming final and when he sought federal habeas relief.
The one-year limitation 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)(A)-(D). “Under ordinary circumstances,” the one-year statute of limitations begins under § 2244(d)(1)(A) when the judgement becomes final and the time to seek to review expires. Ortega v. Schriro, No. CV 07-02063-PHX-MHM, 2009 WL 531867, at *8 (D. Ariz. Mar. 3, 2009). But, “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). “[A]n application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). Additionally, the time an application for state post-conviction review “is ‘pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006).
1. Petitioner's conviction became final in June 2014, but the statute of limitations did not start running until February 2019. The Petition is still untimely.
Petitioner sought direct review of his conviction from the Arizona Supreme Court, which it denied on March 4, 2014. Doc. 7-1, Ex. C, at 12. His conviction, therefore, became final for federal habeas purposes ninety days later on June 2, 2014, when the time to petition the United States Supreme Court for a writ of certiorari expired. Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003) (citing Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999)). But before his conviction became final, Petitioner filed a notice of post-conviction relief, which on March 26, 2014, tolled the one-year limitation before it began to run. 28 U.S.C. § 2244(d)(2). A litany of motions and filings delayed the Superior Court from ruling on what was ultimately his amended petition for post-conviction relief until August 2018 when it denied his petition. Doc. 7-2, Ex. J, at 67-68. Petitioner sought review in the Arizona Court of Appeals, which ended on February 8, 2019, after the Arizona Court of Appeals denied reconsideration and Petitioner declined to seek review from the Arizona Supreme Court. Doc. 7-3, Ex. K at 2. Accordingly, the entire period from before Petitioner's conviction became final to February 8, 2019, is tolled under 28 U.S.C. § 2244(d)(2). Though Petitioner had sought special-action relief in the Arizona Court of Appeals, of which the court declined jurisdiction on March 21, 2019 (doc. 1-2 at 37), these additional days are not tolled because petitions for special action “are considered petitions for writs of mandate, which do not toll the limitations period.” Hale v. Shinn, No. CV-18-04523-PHX-DJH, 2021 WL 1530090, at *3 (D. Ariz. Apr. 19, 2021) (citations omitted).
The one-year limitation started to run on February 8, 2019, until October 23, 2019, when Petitioner filed a second notice for post-conviction relief, tolling the limitations period again. Doc. 7-3, Ex. L, at 6. Up to this point, 258 days counted toward the one-year limitation for filing a timely habeas petition. The Superior Court resolved the second petition for post-conviction relief on November 25, 2019, when it denied and dismissed it. Doc. 7-3, Ex. M, at 18.
Though Petitioner sought review of his second post-conviction relief petition's denial from the Arizona Court of Appeals, the Arizona Court of Appeals dismissed his petition for review as untimely. Doc. 7-3, Ex. N, at 23. The limitations period, therefore, began running again from the date the Superior Court denied the second petition on November 25, 2019, and not when the Arizona Court of Appeals dismissed his petition for review. See Evans, 546 U.S. at 191. The period between November 25, 2019, and when Petitioner filed his third notice of post-conviction relief on June 18, 2020, added 207 days to the time counted against the one-year limitations period. Thus far, 465 days of statute-of-limitations time had elapsed.
The Superior Court dismissed his third petition for post-conviction relief on September 29, 2020. Doc. 7-3, Ex. P, at 48. Petitioner sought review from the Arizona Court of Appeals and the Arizona Supreme Court, the latter of which denied review on March 4, 2022. Doc. 14 at 3. But because more than a year had already passed by the time Petitioner filed his third notice for post-conviction relief, this third post-conviction relief petition, unlike his first two petitions, did not toll the statute of limitations from running under 28 § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed.”). Accordingly, the amount of time between November 25, 2019, and when Petitioner sought federal habeas relief on August 25, 2021, equals 640 days.
In sum, from when the limitations period first started running to when Petitioner filed his federal habeas Petition, 898 days (258 + 640) elapsed excluding the periods during which he had a properly filed application for post-conviction relief pending in the Arizona Courts. The habeas Petition, therefore, is untimely by 533 days.
2. Petitioner is not entitled to a later statute-of-limitations start date.
Petitioner argues the limitations period has not started to run at all, asserting that because the alleged Brady material he seeks has yet to be turned over to him the State has created an impediment to filing his habeas Petition, thereby tolling the limitations period under 28 U.S.C. § 2244(d)(1)(B). Doc. 1 at 11. Petitioner cites Edmond v. United States Attorney, where a prisoner brought an action under the Freedom of Information Act to expedite his records request. 959 F.Supp. 1, 2-3 (D.D.C. 1997). In that case, the prisoner argued the documents he sought would help him overturn his conviction, but he needed them quickly so he could file his § 2255 motion within the one-year limitations period. Id. at 3. The court disagreed he faced any urgency which necessitated expediting his FOIA request because if the government was creating an impediment by withholding any exculpatory material, the one-year limitation “would not begin until the Plaintiff receives that evidence.” Id. at 4. Additionally, the court noted the limitations period does not run until the date on which the facts supporting the claim or claims could have been discovered with due diligence. Id. (citing the federal-prisoner equivalent of 28 U.S.C. § 2244(d)). The court remarked “[b]y filing a FOIA request and further filing these proceedings, Plaintiff has demonstrated due diligence in attempting to obtain the materials.” Id.
Edmond does not alter the law of this Circuit. “The limitations period is statutorily tolled if the petitioner's delay was attributable to ‘[an] impediment to filing an application created by State action in violation of the Constitution or laws of the United States . . ., if the applicant was prevented from filing by such State action.” Bryant, 499 F.3d at 105960 (quoting 28 U.S.C. § 2244(d)(1)(B)). A petitioner must establish “a causal connection between the unlawful impediment and his failure to file a timely habeas petition.” Id. at 1060. Edmond's reasoning does not incorporate the causal connection between the impediment and the untimely filing, which the Ninth Circuit requires, and which Petitioner fails to show. Practically speaking, any allegedly withheld Brady material did not prevent Petitioner from filing the habeas petition form with the contours of his claim to preserve its timeliness. “He could have developed [his Brady] argument, outlined the other arguments and the facts underlying those arguments on the form habeas petition, and then sought to amend his petition when he got more information.” See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1014 (9th Cir. 2009). Petitioner has proven he is adept at litigating his claims through his numerous petitions and motions and state court. There is nothing in the record indicating any state-created impediment prevented him from filing a timely habeas petition under § 2244(d)(1)(B). See Emil v. Baker, No. 3:02-cv-00311, 2014 WL 763420, *8 (D. Nev. Feb. 20, 2014) (rejecting the argument that because a petitioner brings a Brady claim “section 2244(d)(1)(B) automatically applies and saves the claim from the operation of the statute of limitations”).
Edmond also fails to provide a later start date for the statute of limitations under § 2244(d)(1)(D). Under § 2244(d)(1)(D), the statute of limitations begins to run “when the factual predicate of a claim ‘could have been discovered through the exercise of due diligence,' not when it actually was discovered.” Fordv. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). “Section 2244(d)(1)(D) provides a petitioner with a later accrual date than section 2244(d)(1)(A) only if vital facts could not have been known by the date the appellate process ended.” Id. (quoting Schlueter v. Varner, 384 F.3d 69, 74 (3rd Cir. 2004)) (internal quotation marks omitted). Edmond is not persuasive for its point that continuing to withhold alleged Brady material requires tolling the habeas statute of limitations under § 2244(d)(1)(D) until a petitioner receives the material, as Petitioner “seeks only [documentary] support for known factual allegations by his request for materials.” United States v. Tamfu, 3:01-CV-1719-P, 2002 WL 31452410, at *5 (N.D. Tex. Oct. 5, 2002) (“Such a [FOIA] request does not impact the limitations period, until the movant has actually obtained newly discovered evidence that could not have been discovered earlier through the exercise of due diligence.” (disagreeing with Edmond's conclusion)).
Respondents contend Petitioner cannot take advantage of a later statute of limitations start date under § 2244(d)(1)(D), arguing he could have discovered his Brady claim before trial with due diligence. Doc. 7 at 6. The Court does not need to decide when Petitioner “could have [] discovered” the factual predicate of his Brady claim because Petitioner states he actually discovered the alleged Brady material's existence in 2016- well before the Superior Court resolved his first petition for post-conviction relief in 2019, which initially prompted the statute of limitations to run. Doc. 1 at 6. Even assuming § 2244(d)(1)(D) applies, it would not toll the statute of limitations more than pending post-conviction relief petitions tolled the limitations period as discussed above. And § 2244(d)(1)(D) would not apply to Petitioner's evidentiary claim, as what evidence was admitted against Petitioner was by definition known at trial and not newly discoverable at a later date.
B. Petitioner is not Entitled to Equitable Tolling.
Courts have equitably tolled AEDPA's statute of limitations in certain circumstances. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). “[T]he threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.” Waldron-Ramsey, 556 F.3d at 1011 (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Equitable tolling applies if a petitioner shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Ford, 683 F.3d at 1237 (internal quotation marks omitted) (citation omitted). “[Extraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time and the extraordinary circumstances [must be] the cause of the prisoner's untimeliness. Id. (citation omitted).
Petitioner does not raise any extraordinary circumstance that caused it to be impossible for him to timely file a federal habeas petition. As discussed above, withheld alleged Brady material did not prevent Petitioner from filing a federal habeas petition for his Brady claim, let alone for his evidentiary claim.
Petitioner also was not diligent in pursuing his federal habeas rights. Nothing in the record indicates he explored his federal habeas options in the time between his conviction becoming final or his first post-conviction relief petition's denial and when he filed the Petition at issue here. Though he thoroughly litigated his post-conviction relief petitions in state court, nothing in the record indicates Petitioner acted to vindicate his federal habeas rights before filing the present federal habeas Petition. See Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) (“[N]ot only did petitioner sit on his rights for years before he filed his [state PCR] petition, but he also sat on them for five more months after his [state PCR] proceedings became final before deciding to seek relief in federal court.”); Waldron-Ramsey, 556 F.3d at 1014 (“If diligent, [petitioner] could have prepared a basic form habeas petition and filed it to satisfy the AEDPA deadline, or at least could have filed it less than 340 days late assuming that some lateness could have been excused.”).
IV. CONCLUSION
Petitioner's habeas Petition is untimely, and Petitioner is not entitled to equitable tolling. The record is sufficiently developed, and the Court finds an evidentiary hearing is unnecessary for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS RECOMMENDED the Petition for a writ of habeas corpus (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED a certificate of appealability and leave to proceed in forma pauperis on appeal be DENIED. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.