Opinion
CV-20-08291-PCT-DLR (MTM)
06-16-2021
David Evans, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
Petitioner David Evans has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 4).
I. SUMMARY OF CONCLUSION.
Petitioner pled guilty to the felony of failure to stop at the scene of an accident that resulted in serious physical injury or death. Petitioner asserts two claims for federal habeas relief. First, Petitioner states that the trial court violated his Fifth and Fourteenth Amendment rights by providing Petitioner with the wrong post-conviction relief form, which caused him to file a procedurally deficient post-conviction relief petition. Second, Petitioner asserts the state court violated his Sixth Amendment right by failing to appoint Petitioner counsel for his post-conviction proceedings. Because the Amended Petition is untimely, the Court recommends the Amended Petition be denied and dismissed with prejudice.
II. BACKGROUND.
A. Initial Proceedings.
Petitioner was indicted on March 28, 2019 on one count of failing to stop at the scene of an accident involving serious physical injury or death. (Doc. 11-1, Ex. A at 3). On May 14, 2019, at his change of plea hearing, Petitioner stipulated to the following:
THE COURT: [The indictment] charges that on or about the 15th day of March 2019 in the vicinity of Highway 95 and Camp Mohave Road, Fort Mohave, Mohave County, Arizona, [Petitioner] was the driver of a motor vehicle and caused an accident resulting in death or serious physical injury and failed to stop or to comply with the requirements of [Ariz. Rev. Stat. § 28-663], all in violation of [Ariz. Rev. Stat. §§] 28-661(A), 13-701, 13-702, and 13-801, a class 3 felony.
How do you plead to that charge, guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: What's the factual basis for [Petitioner's] guilty plea?
MS. MCCOY: Your Honor, on the date and location alleged, [Petitioner] struck a pedestrian while driving. The pedestrian struck died I believe the next day based on the injuries from the accident.
[Petitioner], according to a witness, got out of the vehicle, looked back at the intersection, then got back in his car and drove away.(Doc. 14 at 18-19). During the plea colloquy, the trial judge informed Petitioner of his right to review through a Petition for Post-Conviction Relief:
THE COURT: If you went to trial and you were found guilty, normally you could file an appeal with a higher court which would decide if any errors had been committed.
By entering this guilty plea, you would give up the right to file an appeal. The only right to review you would have would be the right to file a Petition for Post-Conviction Relief in this court and I would be the one that would decide if any errors had been committed.
If you wanted to file that Petition, you would have to file at least a notice of that within 90 days of your sentencing or you could forever lose that right as well.
Do you understand that?
THE DEFENDANT: Yes, sir.(Id. at 16-17). On June 13, 2019, Petitioner was sentenced to a term of two and a half (2.5) years in prison. (Doc. 11-1, Ex. C at 11). At his sentencing, Petitioner signed a form titled “Notice of Rights of Review After Conviction and Right to Apply to Set Aside Conviction.” (Doc. 14 at 25-6). The Notice form's first paragraph, under RIGHT TO APPEAL, states in capital letters:
YOU DO NOT HAVE A RIGHT TO DIRECT APPEAL IF YOU HAVE PLED GUILTY OR NO CONTEST OR HAVE ADMITTED A VIOLATION OF CONDITIONS OF PROBATION OR HAVE FAILED TO APPEAR AT SENTENCING CAUSING THE SENTENCING TO OCCUR MORE THAN 90 DAYS BEYOND THE DATE OF CONVICTION IN THAT CASE, RELIEF MAY BE SOUGHT ONLY BY PETITION FOR POST-CONVICTION RELIEF.(Id.). (bold in original).
Neither the Mohave County Superior Court nor the Arizona Court of Appeals released a decision recounting the facts of this case. As such, the facts described are not entitled to deference under 28 U.S.C. § 2254(e). However, neither party has put the facts that supported Petitioner's indictment and conviction at issue in their filings before this Court. The Court recounts the facts as stipulated to by Petitioner at his change of plea hearing.
B. Post-Conviction Proceedings.
Despite the verbal instruction by the trial judge at his change of plea, and the written instruction on the Notice of Rights of Review After Conviction signed by Petitioner at his sentencing, both specifying that Petitioner did not have a right to direct appeal, Petitioner filed a Notice of Appeal on July 1, 2019. (Doc. 11-1, Ex. D at 15). On August 1, 2019, the Arizona Court of Appeals dismissed the appeal, noting that “the record reflects that the judgment and sentence in this matter were entered pursuant to appellant's plea agreement. If appellant wishes to seek review of his conviction or sentence, he must proceed by way of Arizona Rule of Criminal Procedure 32.” (Doc. 11-1, Ex. E at 19).
Consistent with the “mailbox rule” for purposes of determining when a prisoner's papers are deemed “filed” with the court, the Court will use the date Petitioner signed and dated the relevant filing. See Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014); Baker v. Bradley, 296 P.3d 1011, 1014 n.1 (Ariz.Ct.App. 2013) (applying prison mailbox rule to state court proceedings).
Ariz. R. Crim. P. 32 was the operative rule governing post-conviction relief proceedings at the time Petitioner's case was before the Arizona Court of Appeals.
On February 21, 2020, Petitioner filed a Motion in Support of Delayed Filing of Notice of Post-Conviction Relief (“PCR”). (Doc. 11-1, Ex. F at 22). Petitioner stated that the jail where Petitioner was incarcerated provided him with the wrong form, causing him to mistakenly believe he had correctly sought post-conviction relief. (Id. at 23). On February 28, 2020, the PCR Court dismissed Petitioner's PCR notice. (Doc. 11-1, Ex. G at 32). The PCR Court rejected Petitioner's explanation for his untimely filing, stating:
[t]he defendant's failure to file a timely notice of post-conviction relief was his own fault. The defendant ignored the admonishment of the Court at the change of plea hearing. The defendant ignored the notice of rights after conviction. The defendant requested the wrong form from the jail. The jail staff apparently provided the defendant the form he requested. The defendant ignored the dismissal of the appeal by the Court of Appeals.(Id. at 33). On March 10, 2020, Petitioner filed a Notice of Appeal of the PCR Court's dismissal of his PCR Notice. (Doc. 11-1, Ex. H at 35). On March 23, 2020, Petitioner filed a Petition for Review with the Arizona Court of Appeals, asserting that the PCR Court erred in dismissing the PCR Notice. (Doc. 11-1, Ex. I at 41).
On September 29, 2020, the Arizona Court of Appeals granted review but denied relief, concluding that the PCR Court did not abuse its discretion in dismissing Petitioner's PCR Notice. (Doc. 11-1, Ex. J at 66-7). On October 10, 2020, Petitioner sought review in the Arizona Supreme Court. (Doc. 11-1, Ex. K at 69). However, on October 19, 2020, Petitioner withdrew his Petition for Review by the Arizona Supreme Court. (Doc. 11-1, Ex. L at 105).
III.THE PETITION.
On November 6, 2020, Petitioner filed a Petition for Writ of Habeas Corpus (doc. 1) in this Court. That petition was dismissed on November 18, 2020 for failure to allege a constitutional violation. (Doc. 3). On December 4, 2020, Petitioner filed an Amended Petition. (Doc. 4). The Court summarized the claims for relief presented in the Amended Petition as follows:
Petitioner raises two grounds for relief. In Ground One, Petitioner alleges the trial court violated his Fifth and Fourteenth Amendment rights by refusing to allow Petitioner to proceed with a petition for post-conviction relief and concluding the failure to file a timely notice of post-conviction relief was Petitioner's fault. In Ground Two, Petitioner asserts the trial court violated his Sixth Amendment rights by failing to appoint counsel to represent Petitioner in his post-conviction proceedings.(Doc. 5 at 2). Respondents filed a Limited Answer on February 18, 2021. (Doc. 11). Petitioner filed a Reply (doc. 12) on April 6, 2021. Pursuant to an Order (doc. 13) issued by this Court, Respondents filed Supplemental Exhibits (doc. 14) on June 3, 2021.
IV. PRINCIPLES OF LAW.
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. Whether a petition is barred by the statute of limitations is a threshold issue that must be resolved before considering other procedural issues or the merits of individual claims.
The AEDPA imposes a one-year limitation period “from the latest of . . . 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). Because Petitioner pled guilty, his PCR proceeding is considered “of-right” rather than collateral review; accordingly, the statute of limitations under AEDPA did not begin to run until the conclusion of his PCR proceeding. Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (“Because a Rule 32 of-right proceeding is a form of direct review, AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review.”).
V. ANALYSIS.
A. Statute of Limitations.
The habeas petition is untimely. Under the Arizona Rules of Criminal Procedure that were operative at the time, Petitioner was required to file a procedurally sufficient PCR Notice within ninety (90) days of his sentencing. As Petitioner was sentenced on June 13, 2019. (doc. 11-1, Ex. C at 10), a timely PCR Notice was due by September 11, 2019. See Ariz. R. Crim. P. 32.4(a)(2)(C) (2019). Under AEDPA, the statute of limitations for Petitioner to file a timely habeas petition began to run on September 12, 2019, the day after expiration of the Petitioner's window to file a timely PCR Notice.
The Arizona Supreme Court subsequently promulgated changes to Rule 32, effective January 1, 2020, that separated post-conviction relief proceedings based on whether the defendant was convicted at trial versus convicted pursuant to a plea agreement. See Allen v. Ryan, No. CV-19-05780-PHX-GMS (MTM), 2020 WL 8273955 at *1 n.2 (D. Ariz. Nov. 12, 2020), report and recommendation adopted, 2021 WL 268816 (D. Ariz. Jan. 27, 2021). These changes are noted strictly for clarity; the amendments to Rule 32 have no material impact on the resolution of the Petition.
Although the AEDPA statute of limitations is tolled while a post-conviction proceeding is pending, see 28 U.S.C. § 2244(d)(2), statutory tolling only applies if the application for post-conviction review is “properly filed.” Artuz v. Bennett, 531 U.S. 4, 7 (2000). As the Supreme Court explained,
an application is “properly filed” when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These 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. at 8 (emphasis in original). The PCR Court dismissed Petitioner's delayed PCR Notice (filed on February 21, 2020, approximately 6 months past the deadline) as untimely under Ariz. R. Crim. P. 32.4. (Doc. 11-1, Ex. G at 32-3). Therefore, Petitioner's PCR Petition was not “properly filed” within the meaning of Artuz. Accordingly, in calculating the timeliness of Petitioner's habeas petition, Petitioner is not entitled to statutory tolling under AEDPA.
Absent statutory tolling, Petitioner's federal habeas petition was due September 12, 2020, one year after expiration of his time to file a PCR Notice. Petitioner's initial habeas petition (doc. 1) was filed November 6, 2020, and the Amended Petition was filed December 4, 2020 (doc. 4). Accordingly, Petitioner's habeas petition is untimely.
B. Equitable Tolling.
“A petitioner who seeks equitable tolling of AEDPA's one-year filing deadline must show that (1) some ‘extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights.” Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). The “extraordinary circumstances” must: (1) be “beyond a prisoner's control, ” (2) “make it impossible to file a petition on time, ” and (3) be “the cause of the prisoner's untimeliness.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012)
In the Amended Petition, Petitioner left blank the section that requires a petitioner to explain why the statute of limitations does not bar a habeas petition filed more than one year after the judgment of conviction became final. (Doc. 4 at 12). In his Reply, Petitioner reiterates the contentions made in the Amended Petition: that Petitioner received the wrong form from the jail and that the PCR Court abused its discretion in not permitting the late filing of a Rule 32 Notice. (Doc. 12 at 2).
Petitioner has not demonstrated circumstances sufficient to warrant equitable tolling. As the PCR Court explained in denying Petitioner leave to file a delayed PCR Petition,
[t]he defendant's failure to file a timely notice of post-conviction relief was his own fault. The defendant ignored the admonishment of the Court at the change of plea hearing. The defendant ignored the notice of rights after conviction. The defendant requested the wrong form from the jail. The jail staff apparently provided the defendant the form he requested. The defendant ignored the dismissal of the appeal by the Court of Appeals.(Doc. 11-1, Ex. G at 33). The PCR Court's ruling is supported by the record. At Petitioner's change of plea hearing, the trial court specifically told Petitioner that: “[b]y entering this guilty plea, you would give up the right to file an appeal. The only right to review you would have would be the right to file a Petition for Post-Conviction Relief in this court” (doc. 14 at 16), and that “[i]f you wanted to file that Petition, you would have to file at least a notice of that within 90 days of your sentencing or you could forever lose that right as well.” (Id. at 16-17). When asked by the Court if he understood the instruction about seeking review thorough a PCR, Petitioner stated “Yes, sir.” (Id.). Later, at his sentencing, Petitioner signed a Notice of Rights of Review After Conviction which stated in bold print that “[y]ou do not have a right to direct appeal if you have pled guilty or no contest […]. Relief may be sought only by Petition for Post-Conviction Relief.” (Id. at 25-26).
It is evident from the record that Petitioner was repeatedly informed of the correct procedure-a Petition for Post-Conviction Relief, rather than a direct appeal-to challenge his conviction and sentence after his guilty plea and sentencing. Petitioner had until ninety (90) days after his June 13, 2019 sentencing to file a PCR Notice; a timely PCR Notice was due by September 11, 2019. On August 1, 2019, in dismissing Petitioner's direct appeal as improperly filed, the dismissal order of the Arizona Court of Appeals specifically informed Petitioner that “[i]f appellant wishes to seek review of his conviction or sentence, he must proceed by way of Arizona Rule of Criminal Procedure 32.” (Doc. 11-1, Ex. E at 19). That warning-that Petitioner was required to file a Petition for Post-Conviction Relief if he wished to proceed-was issued more than thirty days prior to the expiration of the time (September 12, 2019) within which Petitioner could have filed a timely Petition for Post-Conviction Relief. Petitioner did not file his PCR Notice until February 21, 2020.
Prior to the expiration of the Rule 32 PCR deadline, Petitioner had ample warning that he had filed the wrong form and needed to seek post-conviction relief in the superior court instead of filing a direct appeal with the Arizona Court of Appeals. Petitioner was not diligent in seeking post-conviction relief despite having the opportunity to file a timely PCR Notice even after filing the wrong form. It was within Petitioner's control to request the correct forms to file a PCR notice in a timely fashion; Petitioner did not do so. Accordingly, Petitioner has not established “extraordinary circumstances” and is not entitled to equitable tolling.
V. Conclusion.
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that the Amended Petition is untimely and that Petitioner is not entitled to equitable tolling.
IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2244 (Doc. 4) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because denial of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable.
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. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which 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 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will 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.