Opinion
CV-23-0339-PHX-DWL (JFM)
07-20-2023
Josef Timothy Dixon, Petitioner v. Ryan Thornell, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
The undersigned concludes that the Petition is untimely, and therefore recommends it be dismissed with prejudice.
I. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
During surveillance of a convenience store known to host drug- and prostitution-related activity, an officer observed Petitioner engaging what appeared to a drug deal. Petitioner was stopped, and two girls, ages 15 and 16, were found in the vehicle and reported working for Petitioner and others as prostitutes, and that Petitioner and the others used a website to market them. A search of Petitioner and his vehicle revealed marijuana and a digital scale. (See Exh. I, Mem. Dec. 5/26/20 at ¶ 2-3 (presenting facts in the light most favorable to sustaining the judgment).) (Exhibits to the Answer (Doc. 9) are referenced herein as “Exh. __.”)
On November 14, 2017 Petitioner was charged in the trial court (Maricopa County Superior Court) with 16 counts of child prostitution (or as renamed, “child sex trafficking”), one count of possession or use of marijuana, and one count of possession of drug paraphernalia. (Exh. B, Indictment.) Petitioner elected to represent himself with advisory counsel, and proceeded to a jury trial. (Exh. C, M.E. 10/25/18.) Petitioner was convicted on the drug counts, and 14 of the 16 prostitution counts. Id. The other two prostitution counts on which the jury was deadlocked were subsequently dismissed. (Exh. D, M.E. 11/30/18).
Two co-defendants were also named in the Indictment (Exh. B), and were charged in an additional eight counts of the indictment for which Petitioner was not charged.
On November 30, 2018 Petitioner was sentenced to presumptive, consecutive sentences of 13.5 years on each of the 14 prostitution counts, and concurrent sentences of 1 year on the two drug charges. Petitioner's combined sentence amounted to 190 years. (Exh. D, Sentence 11/30/18; Exh. B, Mem. Dec. at ¶ 5.)
Petitioner filed a direct appeal . Appointed counsel argued claims of insufficient evidence and that the 190 year sentence amounted to cruel and unusual punishment. (Exh. G, Opening Brief.) In a Memorandum Decision issued May 26, 2020 (Exh. I) the Arizona Court of Appeals found no merit to the asserted claims, and affirmed Petitioner's convictions and sentences. Petitioner sought review by the Arizona Supreme Court, which was denied on December 11, 2020. (Exh. L, Order.) The Arizona Court of Appeals issued its Mandate (Exh. M) on January 15, 2021. Petitioner did not file a petition for certiorari with the United States Supreme Court. (Petition, Doc. 1 at 3.)
Apparently as a result of a cut-and-paste glibbet, the table of contents in the brief referenced insufficient evidence of charges of resisting arrest and weapons misconduct. (Exh. G at 2.) The substance of the brief, however, discussed the charges in this case. (Id. at 15-18.)
On January 12, 2021 (a month after the Arizona Supreme Court's denial of review on direct appeal), Petitioner commenced his post-conviction relief (PCR) proceeding by filing a PCR Notice (Exh. N). Petitioner did not seek appointment of counsel (Exh. O, M.E. 2/16/21), and eventually filed pro se an Amended PCR Petition (Exh. S), raising a laundry list of claims, all but two of which were dismissed as waived by failure to raise them on direct appeal. (Exh. V Order 1/12/22 at 3-4.) His claim of ineffective assistance of trial advisory counsel was rejected as conclusory, and his claim of ineffective assistance of appellate counsel was found to be without merit. (Id. at 4-6.) The Petition was dismissed without hearing on January 12, 2022. (Id. at 6.)
On February 15, 2022, Petitioner filed a conclusory Motion for Rehearing dated February 9, 2022 and asserting it was sent “via U.S. Mail.” (Exh. W.) The Motion was summarily dismissed on March 16, 2022. (Exh. X, Order 3/16/22)
Petitioner did not seek further review of his PCR proceeding. (Petition, Doc. 1 at 5.)
II. FEDERAL HABEAS PETITION
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 24, 2023 (Doc. 1). The Petition asserts that it “was placed in the prison mailing system on February 16, 2023. (Doc. 1 at 11.) Petitioner's Petition asserts the following four grounds for relief: (1) ineffective assistance of trial and appellate counsel; (2) denial of right fair and speedy trial; (3) denial of due process related to waiver of a defective indictment to avoid delay from remand to the grand jury, subsequent continuances, and denial of a request to honor the granted remand; and (4) illegal sentence. (Order 3/2/23, Doc. 5 at 2.)
Response - On April 11, 2023, Respondents filed their Limited Answer (Doc. 9). Respondents argue: (a) the Petition is untimely; (b) Petitioner failed to properly exhaust his state remedies and has now procedurally defaulted on them; and (c) Grounds 1, 3, and 4 are not cognizable.
Reply - On April 26, 2023, Petitioner filed a Reply (Doc. 11). With regard to timeliness of the Petition, Petitioner argues the commencement of his statute of limitations did not occur until the March 16, 2022 denial of his PCR motion for reconsideration. He argues hardships from COIV 19 caused delay. With regard to procedural default, Petitioner argues he fully exhausted his state remedies by seeking review by the Arizona Supreme Court on direct appeal, that a second PCR proceeding would have been frivolous, that he attempted to raise additional claims on direct appeal by various pro per filings, which were rejected, and that any failure to fairly present claims on direct appeal was the result of ineffective assistance of appellate counsel. Finally, Petitioner asserts his claims are “colorable.”
III. APPLICATION OF LAW TO FACTS
A. TIMELINESS
A 1-year statute of limitations governs all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed.
1. Commencement of Limitations Period
The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The rules of the Supreme Court of the United States, requires that a petition for a writ of certiorari be filed “within 90 days after entry of the order denying discretionary review.” U.S.S.Ct. R. 13(1).
Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. § 2244(d)(1)(B)-(D). Petitioner proffers no argument that any of these apply.
Petitioner did not file a petition for a writ of certiorari, his conviction became final 90 days after the Arizona Supreme Court denied review on December 11, 2020, i.e. on Thursday, March 11, 2021. Ordinarily his one year would have commenced running thereafter, and have expired one year later on March 11, 2022. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying “anniversary method” to habeas statute of limitations).
“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).” U.S.S.Ct. R. 13(3).
2. Statutory Tolling
The AEDPA provides for tolling of the limitations period when 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).
Here, Petitioner commenced his state PCR proceeding no later than January 12, 2021, when he filed his PCR Notice (Exh. N), which was before his limitations period commenced running on March 12, 2021. That proceeding remained pending at least through January 12, 2022, when it was dismissed by the PCR court. (Exh. V, Order 1/12/22.)
A post-conviction application remains pending until the expiration of time allowed to seek further review, even if such review is not sought. Melville v. Shinn, 68 F.4th 1154, 1160 (9th Cir. 2023). Petitioner had the right to seek further review of the PCR's court's ruling by either filing a motion for rehearing under Rule 32.14, or 30 days to seek review by way of a petition for review under Rule 32.15. See Ariz. R. Crim. Proc. 32.14(d) (“motion for rehearing is not a prerequisite to filing a petition for review”). Thus, Petitioner's Rule 32 proceeding remained “pending” at least through Friday, February 11, 2022 .
Petitioner argues it remained pending until March 16, 2022 when the PCR court denied (Exh. X) his Motion for Reconsideration (Exh. W). Respondents argue that the motion for reconsideration was untimely, and therefore did not extend the tolling. Petitioner does not address this contention.
Arizona Rule of Criminal Procedure 32.14(a) provides: “No later than 15 days after entry of the trial court's final decision on a petition, any party aggrieved by the decision may file a motion for rehearing.” Under this Rule, Petitioner had through Thursday, January 27, 2022 to file his motion for rehearing (“Reconsideration”), making his February 15, 2022 motion some 48 days delinquent.
The “mailbox rule” applies to determining whether an Arizona prisoner's state filings were timely. Although a state may direct that the prison mailbox rule does not apply to filings in its court, see Orpiada v. McDaniel, 750 F.3d 1086, 1090 (9th Cir. 2014), Arizona has applied the rule to a variety of its state proceedings. See e.g. State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App.1999) (PCR notice). Here, however, Petitioner's motion was dated February 9, 2022, after the expiration of the January 27, 2022 deadline, and asserts only that it was sent “via U.S. Mail,” not that it was delivered to prison officials. (Exh. W.) Moreover, Petitioner concedes in his Reply that his motion was “submitted on 2/09/2022” (Doc. 11 at 2), 13 days after the deadline.
Untimely requests for further review do not extend the pendency of a postconviction review proceeding. See Carey v. Saffold, 536 U.S. 214 (2002). See Ta Yoat Ni v. Ryan, 2014 WL 2569139, at *7 (D. Ariz. June 9, 2014) (applying to PCR motions for rehearing under Ariz. R. Crim. Proc. 32.14); and Isom v. Brnovich, 2023 WL 4089230, at *11, n. 17 (D. Ariz. Apr. 12, 2023), report and recommendation adopted, 2023 WL 4081807 (D. Ariz. June 20, 2023) (same result, but unreasoned).
It is true that the PCR court did not address the timeliness of Petitioner's Motion for Reconsideration, but rather appears to have addressed the merits. (See Exh. X, Order 3/16/22.) However, in the absence of a clear indication by the state courts that a particular request for review was timely or untimely, the habeas court must itself determine what the state courts would have held in respect to timeliness. Evans v. Chavis, 546 U.S. 189, 198 (2006). See Ta Yoat Ni, 2014 WL 2569139, at *7 (applying to PCR motions for rehearing under Ariz. R. Crim. Proc. 32.14). There being no indication from the state court on the issue, the undersigned finds the state court would have held the Motion for Reconsideration delinquent under Rule 32.14(a).
Thus, at best, Petitioner's Motion for Reconsideration could be considered a new application for post-conviction relief. However, statutory tolling of the habeas limitations period only results from state applications that are “properly filed,” and an untimely application is never “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005). Under Rule 32.14(a), the Motion for Reconsideration was untimely, and thus cannot, of itself, result in any statutory tolling.
3. Ordinary Timeliness
Thus, Petitioner's habeas limitations period was tolled from its commencement through Friday, February 11, 2022, when his time to file a petition for review in his PCR proceeding expired. Petitioner's habeas Petition was not filed until February 24, 2023. However, “[i]n determining when a pro se state or federal petition is filed, the ‘mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Here, Petitioner's Petition asserts it was delivered to prison officials for filing on February 16, 2023. Even if deemed filed as of that date, Petitioner's Petition was five days delinquent.
4. Equitable Tolling
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and ‘the extraordinary circumstances were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003). Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9thCir. 2006).
Petitioner does not proffer any grounds for equitable tolling, and the undersigned finds none. (See Petition, Doc. 1 at 11; Reply, Doc. 11, generally.)
Petitioner does generally reference “COVID 19 hardships.” (Reply, Doc. 11 at 2.) But Petitioner references only one specific time period, the time surrounding “April 05, 2021.” (Id.) This would arguably include the time between his January 12, 2021 PCR Notice (Exh. N) and his July 30, 2021 original PCR Petition (Exh. P). Petitioner fails to explain how any hardship in this time period would have affected his ability to timely file his habeas petition in the period that the habeas statute of limitations was running, between February 12, 2022 and February 11, 2023.
5. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383 (2013). To invoke this exception to the statute of limitations, 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.'” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324.
Petitioner makes no claim of actual innocence based on new credible evidence, and the record reveals none.
6. Summary re Statute of Limitations
Taking into account the available statutory tolling, Petitioner's one year habeas limitations period commenced running on February 12, 2022, and expired on February 11, 2023, making his Petition (deemed filed February 16, 2023) five days delinquent. Petitioner has shown no basis for additional statutory tolling, and no basis for equitable tolling or actual innocence to avoid the effects of his delay. Consequently, the Petition must be dismissed with prejudice.
B. OTHER DEFENSES
The undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations. Accordingly, Respondents other defenses are not reached.
IV. CERTIFICATE OF APPEALABILITY
“When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). See Rules Governing § 2254 Cases, Rule 11(a).
Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.
(B) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This 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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”