Opinion
CV-21-08141-PCT-GMS (MTM)
03-15-2022
Karl J. Cunningham, Petitioner, v. David Shinn, Respondent.
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
Petitioner Karl J. Cunningham has filed a Petition for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1.
I. SUMMARY OF CONCLUSION
Petitioner asserts multiple violations of his constitutional rights under the Fifth and Sixth Amendments require vacating his convictions and sentences. But because Petitioner untimely sought federal habeas relief by over twenty years, and no tolling applies, the Court recommends the Petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction and Sentencing
As the Arizona Court of Appeals recounted, the State charged Petitioner with premeditated murder, first degree burglary, felony murder, and escape following a breakin of a residence. Doc. 8-1, Ex. A, at 5. After the State noticed its intent to seek the death penalty, Petitioner changed his plea and pleaded guilty to first degree murder, second degree burglary, and forgery. Doc. 8-1, Ex. A, at 5; doc. 8-1, Ex. D, at 14. After the Superior Court consolidated his two cases, Petitioner entered a guilty plea for the escape charge. Doc. 8-1, Ex. F, at 22. Petitioner moved to withdraw from his initial guilty plea, but the Superior Court denied his motion, finding “no good cause” under the Arizona Rules of Criminal Procedure. Doc. 8-1, Ex. G, at 25; doc. 8-1, Ex. H, at 28. On September 22, 1992, the Superior Court sentenced Petitioner to consecutive and concurrent sentences of life in prison plus fourteen years' imprisonment. Doc. 8-1, Ex. I, at 32-35.
B. Direct Appeal
Petitioner appealed his sentence to the Arizona Court of Appeals, arguing the Superior Court erred when it imposed consecutive sentences for the murder and burglary charges. Doc. 8-1, Ex. K, at 45-50. The Arizona Court of Appeals affirmed his convictions and sentences. Doc. 8-1, Ex. A, at 4-7. Petitioner did not seek review from the Arizona Supreme Court, and the Arizona Court of Appeals issued its mandate on January 7, 1994. Doc. 8-1, Ex. L, at 52.
C. Post-Conviction Relief Proceedings
Petitioner filed his first notice of post-conviction relief (PCR) in state court on July 1, 1998-over four and a half years after his conviction became final. Doc. 8-1, Ex. M, at 55. The Superior Court dismissed his petition on May 12, 1999. Doc. 8-1, Ex. P, at 83-84. There is no petition for review to the Arizona appellate courts in the record.
Petitioner did not file his second notice and petition for PCR until February 26, 2003, which the Superior Court dismissed on March 12, 2003. Doc. 8-1, Ex. Q, at 86; Ex. R, at 91. The Superior Court then denied Petitioner's motion for reconsideration on April 4, 2003. Doc. 8-1, Ex. T, at 102. Petitioner also did not seek review of his second PCR petition's denial in the Arizona appellate courts.
Petitioner filed his third notice and petition for PCR on August 3, 2004. Doc. 8-1, Ex. U, at 104. The Superior Court dismissed it on January 21, 2005. Doc. 8-1, Ex. V, at 109. The Superior Court denied his motion for reconsideration and to amend as to his third PCR petition on May 26, 2005. Doc. 8-1, Ex. X, at 113. Petitioner also did not seek review of his third PCR petition's denial in the Arizona appellate courts.
On May 25, 2006, Petitioner filed his fourth notice and petition for PCR. Doc. 8-1, Ex. Y, at 115. The record does not contain a ruling on the fourth PCR petition or any petition for review to the Arizona appellate courts.
On December 15, 2006, Petitioner filed his fifth PCR petition. Doc. 8-2, Ex. HH, at 19. The Superior Court denied the fifth PCR petition on June 26, 2007, and Petitioner did not seek review. Doc. 8-2, Ex. II, at 28.
On September 8, 2015, Petitioner filed his sixth PCR notice. Doc. 8-2, Ex. JJ, at 30. The Superior Court denied it on November 20, 2015, and Petitioner did not seek review. Doc. 8-2, Ex. KK, at 35.
Petitioner filed his seventh PCR petition on April 9, 2020. Doc. 8-2, Ex. LL, at 37. This is the last PCR petition in the record before the Court. The Superior Court dismissed it as untimely on May 14, 2020. Doc. 8-2, Ex. MM, at 49. Petitioner sought review in the Arizona Court of Appeals, but the Arizona Court of Appeals affirmed the dismissal on October 27, 2020. Doc. 8-2, Ex. NN, at 51; Doc. 1 at 21. Petitioner did not seek review from the Arizona Supreme Court. Doc. 8-2, Ex. OO, at 69.
III. PETITION FOR WRIT OF HABEAS CORPUS
As summarized in this Court's Order, Petitioner raises three grounds for relief:
(1) “Ineffective assistance of counsel at plea offer stage in violation of the 5th and 6th Amendments of the U.S. Constitution as defined by Hill v. Lockhart, 474 U.S. 52 (1985)”;
(2) “The prosecution unconstitutionally coerced the petitioner into pleading guilty by threatening to seek the death penalty if Petitioner refused to plead guilty. The death penalty was barred, this made the coercion unconstitutional under the due process clause of the 5th amendment as defined by Marbry v. Johnson, 467 U.S. 504 (1984)”; and
(3) “Due Process violation under the 5th amendment of the U.S. Constitution: the judge at the change of plea hearing failed to properly notify the petitioner that he did not face being given the death penalty if he declined the plea offer.”Doc. 6 at 1-2.
A. Statute of Limitations
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). On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) took effect, imposing a one-year statute of limitations for state prisoners to file habeas petitions. Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1058 (9th Cir. 2007); 28 U.S.C. § 2244(d). For prisoners whose convictions became final before AEDPA's enactment, “the statute of limitations started running the day after AEDPA's effective date and expired on April 24, 1997.” Bryant, 499 F.3d at 1058.
The Arizona Court of Appeals issued its mandate on January 7, 1994, when the time for Petitioner to seek direct review from the Arizona Supreme Court expired. Doc. 81, Ex. L, at 52. Accordingly, Petitioner's conviction became final on January 7, 1994. See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). Because his conviction became final before AEDPA's enactment on April 24, 1996, Petitioner needed to file a habeas petition by April 24, 1997, for it to be timely. See Bryant, 499 F.3d at 1058.
Petitioner dated his Petition November 8, 2020, but it was filed June 21, 2021. Doc. 1 at 1, 8. Using either the 2020 or 2021 date, his Petition is untimely by over twenty years. Petitioner argues allegedly insufficient legal resources in his prison's law library and the Supreme Court's holding in Martinez v. Ryan excuse his untimely filing.
B. Statutory Tolling
AEDPA statutorily tolls the one-year statute of limitations while “properly filed application[s]” for state post-conviction relief are pending. 28 U.S.C. § 2244(d)(2). “However, the statute of limitations is not tolled ‘from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed.'” Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (citation omitted).
Petitioner's habeas statute of limitations expired on April 24, 1997, well before he filed his first PCR notice on July 1, 1998. Doc. 8-1, Ex M, at 55. Because Petitioner first initiated state PCR proceedings after AEDPA's statute of limitations expired, he cannot avail himself of § 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.”).
Additionally, Petitioner's argument regarding the lack of legal resources in the law library fails to toll the statute of limitations under 28 U.S.C. § 2244(d)(1)(B). Petitioner asserts the Arizona Rules of Criminal Procedure require petitioners to “‘include a memorandum that contains citations to . . . relevant legal authorities . . .' in the [state] PCR.” Doc. 1 at 8. He further argues a prisoner's inability to access legal authorities, coupled with the requirement that a prisoner cite legal authorities in the state PCR petition, “effectively impede[s] inmates in the [Arizona Department of Corrections] from presenting claims of constitutional violations in a pro-per proceeding.” Doc. 1 at 9. He asserts that “[t]he denial of access to case reporters impeded petitioner from learning of the constitutional violation and presenting claims to the court.” Doc. 1 at 17.
While tolling is available under § 2244(d)(1)(B), Petitioner must establish “a causal connection between the unlawful impediment and his failure to file a timely habeas petition.” Bryant, 499 F.3d at 1059-60 (emphasis added). “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.'” Id. (quoting 28 U.S.C. § 2244(d)(1)(B)).
As an initial matter, Petitioner's reply contradicts his claim “there are no law libraries or persons trained in law provided to inmates in the Arizona State Prison.” Doc. 1 at 16. In his reply, Petitioner attaches Arizona Department of Corrections Rehabilitation and Reentry Department Order 902, which covers “Inmate Legal Access to the Courts.” Doc. 9 at 8. Department Order 902 lists legal resources that “may remain for use by inmates and shall be placed in the Reserve/Reference section of the General Library of each unit” including, among many things, “U.S. Code: 28 U.S.C. Section 2254 and Section 2241 to 2253.” Doc. 9 at 35.
In certain circumstances, a prison library lacking AEDPA's text and related resources may give rise to an “impediment” finding under § 2244(d)(1)(B). See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (remanding for an evidentiary hearing on petitioner's allegations the prison library had no materials describing AEDPA). But here, Petitioner's attachment indicates he indeed had access to AEDPA and at least some other legal resources, and he does not specifically allege the prison's library failed to stock the resources listed in Department Order 902 for the entire period he seeks to toll- over twenty years. See Alexander v. Schriro, 312 Fed.Appx. 972, 974 (9th Cir. 2009) (finding petitioner's habeas filing untimely and declining to require an evidentiary hearing because petitioner did not “allege that he was denied any of the legal materials required to be in the library, which included materials covering the AEDPA. He also [did] not allege that he ever sought materials clarifying the term ‘final judgment,' let alone that he was denied such materials after requesting them.” (internal citation omitted)).
Further, even assuming the prison's law library lacked key legal resources, Petitioner does not show how the prison library lacking legal resources actually prevented filing his habeas petition and caused the untimeliness. See Bryant 499 F.3d at 1060. His assertions, both in his Petition and his reply, respond to requirements he points to in the Arizona Rules of Criminal Procedure necessitating legal citations in state PCR petitions; they do not address how the allegedly deficient law library impeded his ability to seek federal habeas relief. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (“It is not enough to say that the [state] facility lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate.”), cited with approval in Roy, 465 F.3d at 971-72.
In Bryant, the petitioner argued he “might have filed a timely federal habeas petition instead of seeking further state remedies if he could have ascertained [with access to reporters and case law] that [a] motion [to the Arizona Supreme Court] to recall the mandate would not have tolled the limitations period.” 499 F.3d at 1060. The petitioner further argued “[t]he bare statutory text to which he had access . . . was insufficient to inform him of the time limitation.” Id. The petitioner, however, “[could not] establish a causal connection” between the insufficient legal resources and his untimely filing. Id.
Here too, Petitioner fails to establish how the lack of legal resources, like case reporters, impeded his ability to timely petition this Court for habeas relief for over twenty years while he repeatedly sought state remedies. He merely asserts the lack of legal resources prevented him from citing legal authority as the Arizona Rules of Criminal Procedure require in state PCR proceedings and prevented him from learning about his substantive claims. He does not assert the lack of legal resources prevented him from filing his habeas Petition within the one-year statute of limitations. Nothing in his Petition or reply indicate Petitioner was seeking federal habeas relief while he sought state PCR relief, let alone that insufficient legal resources impeded his ability to do so. See id. Petitioner fails to allege any facts connecting the alleged impediment to the federal habeas statute of limitations. “Because [Petitioner] has not demonstrated a causal connection between the unavailability of case law in the prison library and the untimeliness of his habeas petition, he is not entitled to statutory tolling.” Id.
C. Equitable Tolling
Courts have equitably tolled AEDPA's statute of limitations in certain circumstances. Roy, 465 F.3d at 969. “[T]he threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (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 v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (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).
Though “[deprivation of legal materials is the type of external impediment” which may warrant equitable tolling, a petitioner still “bears the burden of showing his own diligence and that the hardship caused by lack of access to his materials was an extraordinary circumstance that caused” his untimely filing. Waldron-Ramsey, 556 F.3d at 1011. As discussed above, even assuming the allegedly deficient law library was an extraordinary circumstance, Petitioner does not allege any facts addressing causation. Though Petitioner connects the lack of legal resources to requirements for state PCR petitions, he fails to connect the insufficient legal resources to his untimely federal habeas filing. Accordingly, Petitioner also is not entitled to equitable tolling.
Further, Petitioner 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 in 1994 and 2021, when he filed the Petition at issue here. Though he filed a multitude of PCR petitions in state court, Petitioner waited over four and a half years from when his conviction became final and when he filed his first state PCR petition. Indeed, there were multiple years between some of his PCR petitions, during which the record does not indicate he pursued any form of collateral relief. 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.”)
Additionally, though he attaches requests for case reporters from the prison library, a fellow inmate made those requests-not Petitioner. Doc. 9 at 42-49. In other words, the record does not reflect Petitioner himself was diligently attempting to access resources from the prison. See Miller, 141 F.3d at 978 (“[Petitioner] has provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims.” (emphasis added)), cited with approval in Roy, 465 F.3d at 971-72; see also Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (“Indeed, he fails to make any specific allegation what he did to pursue his claims and complain about his situation.” (cleaned up) (emphasis added)).
Lastly, Petitioner's contention that Martinez v. Ryan allows for his ineffective assistance of counsel claim to toll AEDPA's statute of limitations lacks merit. This Court has noted “Martinez does not address whether an untimely habeas petition may be excused.” Aviles v. Ryan, No. CV-16-1863-PHX-GMS, 2018 WL 4184849, at *3 (D. Ariz. Aug. 31, 2018). “[R]ather, Martinez holds that inadequate assistance of counsel in state collateral proceedings may establish cause for a petitioner's procedural default of a claim of ineffective assistance of trial counsel.” Id. The dispositive issue here is whether Petitioner timely sought habeas relief within AEDPA's statute of limitations, not whether his claims are procedurally defaulted. “Therefore, Martinez does not provide an excuse for Petitioner's untimely filing.” Id.
IV. CONCLUSION
Petitioner's habeas Petition is untimely, and Petitioner is not entitled to 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.