Opinion
CV-20-00240-TUC-RM (BGM)
02-15-2023
Gail Kristine Bennett, Petitioner, v. Mark Napier, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Bruce G. MacDonald United States Magistrate Judge
Petitioner Gail Kristine Bennett (“Petitioner”), formerly confined in the Pima County Jail, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). (Doc. 1.) The Petition is fully briefed. (Doc. 9, 11.) This matter was referred to Magistrate Judge Macdonald for Report and Recommendation. (Doc. 3.) As more fully set forth below, the Magistrate Judge recommends that the district court, after its independent review, dismiss the Petition.
BACKGROUND
Petitioner was convicted after a bench trial in the Pima County Consolidated Justice Court of Driving Under the Influence in violation of Ariz. Rev. Stat. §§ 28-1381(A)(1), -1381(A)(2) and 1382(A)(1). (Doc. 1-2 at 7.) She was sentenced to 180 days in the Pima County Adult Detention Center with 150 days suspended. (Doc. 1-3 at 1; Doc. 1-2 at 12.) Petitioner was ordered to report to the Pima County Jail at 8:00 a.m. on November 17, 2017, to be released on December 17, 2017 at 8:00 a.m. (Doc. 1-3 at 1.)
Petitioner appealed her conviction to the Arizona Superior Court, Pima County and her conviction was affirmed on May 10, 2018. (Doc. 1-2 at 6-11.) Thereafter, Petitioner filed a petition for special action in the Arizona Court of Appeals which declined jurisdiction on August 9, 2018. Id. at 5. Petitioner sought review in the Arizona Supreme Court, which denied her petition for review on March 6, 2019. Id. at 4. On May 30, 2019, the Arizona Court of Appeals issued its mandate. Id. at 3.
The Petition raises one ground for relief. (Doc. 1 at 1.) Petitioner contends that she was denied equal protection of the law under the Fourteenth Amendment to the United States Constitution when the arresting officer asked for her consent to waive her Fourth Amendment rights, despite knowing that she was impaired, and when the trial court found that Petitioner had the capacity to waive her Fourth Amendment rights while under the influence. (Doc. 1 at 1-2; Doc. 3 at 2.)
As more fully set forth below, this Court finds that the Petition is moot and time barred. Thus, the Magistrate Judge recommends that the Petition be dismissed.
ANALYSIS
Mootness
Mootness is a threshold question that a court must resolve before it assumes jurisdiction. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). A case is moot if it does not satisfy the case-or-controversy requirement of Article III, §2 of the United States Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1988). “The case-or-controversy requirement demands that, through all stages of federal judicial proceedings, the parties continue to have a personal stake in the outcome of the lawsuit.” United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001) (internal quotation marks and citation omitted). “This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer, 523 U.S. at 7 (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)).
A challenge to a prison sentence becomes moot once the petitioner completes his sentence unless he continues to suffer collateral consequences. Spencer, 523 U.S. at 7 (“Once the convict's sentence has expired, however, some parole - some ‘collateral consequence' of the conviction - must exist if the suit is to be maintained.”); see also United States v. Palomba 182 F.3d 1121, 1172 (9th Cir. 1999). When a petitioner has completed his sentence, he most prove actual collateral consequences flowing from his conviction - the court does not presume them. See Spencer, 523 U.S. at 12-16; see also Verdin, 243 F.3d at 1178 (recognizing “Spencer's holding that collateral consequences cannot be presumed where a defendant has already served his entire sentence...”).
Here, Petitioner completed her jail sentence on December 17, 2017. (Doc. 9 at 1.) Petitioner has not alleged that she continues to suffer collateral consequences and the district court may not presume them. (Doc. 1.) Having no basis on which to recommend that the district court find that Petitioner continues to suffer collateral consequences, this Court determined determines that Petitioner has not established that she continues to suffer collateral consequences.
Accordingly, this Court determines that the case is moot. Alternatively, as set forth below, this Court determines that the Petition is time barred.
Timeliness
The time limitations imposed by Anti-Terrorism and Effective Death Penalty Act (AEDPA) apply to the Petition. See, e.g., Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). The AEDPA imposes a 1-year limitation period on state prisoners filing habeas corpus petitions in federal court. 28 U.S.C. § 2244(d)(1). The limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
Here, Petitioner's conviction became final on May 10, 2018 when the Arizona Superior Court, Pima County affirmed her conviction and denied her direct appeal. (Doc. 1-2 at 11.) Petitioner timely filed a special action in the Arizona Court of Appeals seeking review of the Superior Court's decision. (Doc. 1-2 at 5.) However, as pointed out by Respondent, filing a special action does not toll AEDPA's one-year limitation period.
“In Arizona, a petition for special action is the equivalent of a petition for writ of mandate. Because a petition for special action is not a request for collateral review, it does not toll AEDPA's statute of limitations.” See Proper v. Phoenix City Prosecutor's Office, CV-18-03026-PHX-SRB, 2020 WL 3197343, at *3 (D. Ariz. June 15, 2020) (citing Borrud v. Ryan, No. CV-15-08043-PHX-SPL, 2017 WL 1057965, at *4 (D. Ariz. Mar. 21, 2017); Hardiman v. Galaza, 58 Fed.Appx. 708, 710 (9th Cir. 2003) (stating that petitions for writ of mandate do not toll limitations period because they are not applications for state post-conviction relief or other collateral review with respect to pertinent judgments or claims under § 2244(d)(2))).
Petitioner fails to address the district court's holding in Proper. (Doc. 11.) This Court is persuaded by Proper and the cases cited therein and similarly finds that a petition for special action is not a request for collateral review. Accordingly, Petitioner's special action in her underlying criminal proceeding did not toll the running of the AEDPA's limitations period.
Excluding the 90 days that Petitioner was given to file a petition for writ of certiorari to the United States Supreme Court, the one-year limitations period under AEDPA began to run on May 11, 2018 (the date after her conviction was affirmed) and ended one year later on May 11, 2019. Alternatively, including the 90 days that Petitioner was afforded to file a petition for a writ of certiorari in the United States Supreme Court, the AEDPA's one-year statute of limitations period began to run on August 9, 2018 and ended on August 9, 2019. By either calculation, the Petition was filed beyond the AEDPA's one-year limitation period.
This Court finds that the Petition is untimely and must be dismissed unless Petitioner has met her burden of establishing a basis for equitable tolling of the limitations period. Petitioner has neither alleged nor established that equitable tolling apply to save her untimely Petition. Indeed, Petitioner insists that her Petition is timely as a matter of law. (Doc. 11 at 2-4.)
In order to be entitled to equitable tolling Petitioner must affirmatively demonstrate both that (1) he diligently pursued his rights and (2) some extraordinary circumstance beyond his control stood in his way and prevented him from filing his Petition on time. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
In sum, this Court finds that the Petition is time-barred.
RECOMMENDATION
For the foregoing reasons, this Court finds that the Petition is moot and time barred. Accordingly, the Magistrate Judge recommends that the district court, after its independent review, DISMISS the Petition for Writ of Habeas Corpus.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:20-cv-240-RM.