Opinion
No. CV-06-0138-PCT-JAT.
June 7, 2006
ORDER
Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"), which was filed on January 11, 2006. This action was referred to Magistrate Judge David K. Duncan, who issued a Report and Recommendation (RR) on May 9, 2006. In the RR, the Magistrate Judge recommended that the Petition be denied. On May 18, 2006, Petitioner filed objections to the RR.
I. STANDARD OF REVIEW
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1126 (D.Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, `but not otherwise.'"). However, District courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made."). Here, petitioner filed objections on May 18, 2006, disputing the recommendations of Magistrate Judge Duncan. Therefore, pursuant to Reyna-Tapia, the Court is undertaking a de novo review of the petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
The relevant factual and procedural background, for purposes of this Order, is summarized herein. Following his 1992 convictions for sexual assault, aggravated assault, and kidnapping, Petitioner Anderson sought direct review; the Arizona Court of Appeals affirmed his convictions and sentence on May 18, 1993. More than ten years later, on November 13, 2003, he filed a pro se petition in Yavapai County Superior Court for post-conviction relief. Anderson's appointed Counsel could find no claim that could reasonably be pursued, and filed a Notice of post-conviction relief (PCR) Review on May 10, 2004. Counsel requested that Anderson be given an extension to file pro se, which the trial court granted. On July 15 and July 28, 2004 Anderson filed a pro se amended PCR petition, raising aBlakely claim. Blakely v. Washington, 542 U.S. 296 (2004). Judge Sterling dismissed the petition on September 21, 2004, finding that Blakely was not retroactively applicable to Anderson's case on collateral review. Anderson filed a petition for review before the Arizona Court of Appeals on October 13, 2004, which was denied on August 10, 2005. Anderson did not seek discretionary review by the Arizona Supreme Court. He subsequently filed his federal petition on December 19, 2005. On May 19, 2006, U.S. Magistrate Judge Duncan issued a RR recommending denial of the petition.
III. DISCUSSION
The RR recommends that the Petition be dismissed as untimely. On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which created a 1-year statute of limitations for a state prisoner to file a federal petition for a writ of habeas corpus.See 28 U.S.C. § 2244(d)(1)(a). It provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(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.
(2) The 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.
Because Petitioner's conviction became final before the enactment of the AEDPA, barring tolling, his petition needed to be submitted within one year of the effective date of the statute, or April 24, 1997, to be timely. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner claims that his petition for habeas relief is not untimely. However, only statutory or equitable tolling can extend the period during which a petitioner can timely file a writ for habeas corpus. Because neither applies here, the petition must be denied.
1. STATUTORY TOLLING
The one year statute of limitations is tolled during the time that 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); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
Petitioner claims that the disposition of his case was not "final." He argues that the statute of limitations was tolled because the option to appeal in state court was still available. Petitioner quotes 13 A.R.S. § 4233, claiming that "a petition [for state post-conviction relief] is specifically made a part of the original action and not a separate action," (implicitly arguing that it was an appeal). Yet, Petitioner fails to note that in the next line the statute states, "It displaces and incorporates all trial court post-trial remedies except post-trial motions and habeas corpus." Further, the Arizona Supreme Court held that a petition for post-conviction relief under Rule 32 is not a direct appeal from a judgment under Rule 31 . . .," rather, "A Rule 32 petition is a collateral attack on a judgment. It is post-conviction relief "other" than an appeal."Moreno v. Gonzalez, 962 P.2d 205, 208 (1998). Therefore, the disposition of the case was "final" when Petitioner failed to seek discretionary review at the Arizona Supreme Court in 1993, and the federal habeas statute of limitations began to run from the time of the adoption of AEDPA, expiring April 24, 1997.
Petitioner further claims that because his state petition for post-conviction relief was "properly filed," the federal statute of limitations could not run. Whether the petition is timely turns on what a "properly filed" action is for purposes of 28 U.S.C. § 2244(d)(2). In Artuz v. Bennett, 531 U.S. 4, 8 (2000), the Supreme Court held that an application is properly filed when its delivery and acceptance comply with the applicable laws and rules governing filing. Id. Such laws and rules, "usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Id. (emphasis added). The Supreme Court has held that a PCR petition that is rejected by the state as untimely is not "properly filed" for purposes of AEDPA. Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005).
Here, Anderson did not file any petitions with the court between May 18, 1993 and November 13, 2003. He argues thatMoreno controls, and therefore he is not untimely submitting his federal habeas petition. In Moreno, the Arizona Supreme Court held that a first PCR petition is not necessarily untimely when the delay was through no fault of the petitioner. 962 P.2d at 207. This Court does not dispute Arizona's construction of its own statute. The federal statute of limitations for AEDPA can be tolled by a "properly filed" state proceeding, and thus a habeas petition could be "timely" submitted more than 12 months after final judgment. A state statute of limitations for post-conviction relief can be tolled for reasons adopted by the state, and thus a state petition for post-conviction relief can be filed "late" and yet still be "properly filed," if it conforms to a state exception to its own statute of limitations. See Gaston v. Palmer, 417 F.3d 1030, 1045 (9th Cir. 2005). These two propositions cannot be construed together to mean that the federal statute of limitations cannot run while some possibility exists that the state statute of limitations can be tolled; that would defeat the legislative purpose contemplated within the AEDPA to limit habeas relief. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). By failing to file any state petition, Anderson was unable to toll the federal statute of limitations and it expired before the filing of his state petition in 2003.
Petitioner will also be unable to claim that the "timely" or "proper" filing of a state petition for post-conviction relief can "restart the clock" on the federal statute of limitations. Once the one-year limitations period had elapsed it "could not be restarted." Id. This statute of limitations effects only the ability of the Petitioner to seek federal relief, not state remedies, and the Petitioner may still be able to apply to the State of Arizona for relief. Id. Because Petitioner failed to file a state PCR petition before the AEDPA statute of limitations ran, statutory tolling did not occur, and Petitioner's ability to bring the claim expired.
2. EQUITABLE TOLLING
For Petitioner to be entitled to equitable tolling he must show that extraordinary circumstances beyond his control made it impossible for him to file timely. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Petitioner advances two arguments that he mistakenly believes constitute extraordinary circumstances.
First, Petitioner claims that the legal resources available to him prevented him from timely filing. Second, he claims that the lack of "adequate" legal assistance amounts to an extraordinary circumstance. The Ninth Circuit Court of Appeals has indicated that in some cases inadequate legal materials could be an "impediment" which justifies late filing, or could form the basis for equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc). However, in this instance, the Petitioner had sufficient legal resources and assistance to file this Petition.
Here, Petitioner states in his petition that the Department of Corrections (DOC) contracted for paralegal services to assist the inmates. The paralegals' services constitute an adequate substitute for legal materials. Further, lack of legal assistance does not amount to extraordinary circumstances justifying tolling the statute of limitations. See Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). Although unsupported by the record, Petitioner also claims that the paralegals employed during the relevant period were terminated by the DOC for various improprieties, which he argues should grant him additional tolling. Even if these claims were true and equitable tolling was granted for this period, Petitioner fails to explain why he failed to file a habeas petition for four additional years. The prison had long since employed legal services for the inmates' use. "A party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll."Beeler, 128 F.3d at 1289. Here, the Petitioner had adequate legal resources but failed to utilize them during the statute of limitations. Petitioner acted with undue delay and offers no "extraordinary circumstances beyond his control" that convince this court to grant him additional time to file a habeas petition; his request for equitable tolling is without merit.
IV. CONCLUSION
Petitioner failed to demonstrate why statutory or equitable tolling should permit him to submit a petition otherwise untimely. Therefore,
IT IS ORDERED that this Court overrules Petitioner's objections (Doc. #14) and accepts the RR (Doc. #13); the petition for writ of habeas corpus (Doc. #1) is DENIED, and the Clerk of the Court shall enter judgment accordingly.