Opinion
CV-23-00356-PHX-DJH (MTM)
11-30-2023
Bryant Noah Flemate, Petitioner, v. Ryan Thornell, et al., Respondents.
WO
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
Petitioner Flemate filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. 5.
I. SUMMARY OF CONCLUSION
On February 19, 2019, Petitioner pled guilty to three sexual offenses involving a minor. His state court convictions became final on July 18, 2019. On April 14, 2023, Petitioner filed an Amended Habeas Petition. Because Petitioner's Amended Habeas Petition is untimely and he is not entitled to equitable tolling, this Court recommends the petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction and Sentencing
On February 19, 2019, Petitioner pled guilty in Maricopa County Superior Court to Sexual Conduct with a Minor, Child Prostitution and Attempted Child Prostitution. Doc.
9-1 at 33-44. The presentence report summarized the facts:
A factual basis for a guilty plea may be established by a pre-sentence report. State v. Varela, 587 P.2d 1173, 1175 (Ariz. 1978).
On July 31, 2016, ...Victim A [a runaway] reported to police she was a victim of sex trafficking and she had just left her traffickers .. . For five days after running away, the defendant and co-defendants Cisneros (001) and Rafael Quiroz (003) transported Victim A to various locations including hotels and private residences to meet with clients. .. She was told how much to charge for various acts and was forced to have various types of sexual intercourse with eight to nine men.
Throughout the five days, Victim A was also forced to perform vaginal, anal, and oral intercourse with the co-defendants on multiple occasions. .. She was terrified of the defendant and Cisneros (001).
A forensic nurse exam indicated Victim A had numerous contusions on her legs, broken blood vessels in her vagina, petechiae, tenderness, erythema, and an injured cervix.Id. at 84-5. On April 19, 2019, Petitioner was sentenced to a sixteen-year term of imprisonment. Id. at 80.
B. Post-Conviction Relief
On May 25, 2021, Petitioner filed a motion in state court requesting that he receive his state court discovery. Doc. 9-3 at 48-51. The trial court denied the motion and noted Petitioner did not have a pending Post-Conviction Relief (PCR) petition. Doc. 9-1 at 93. Thereafter, Petitioner filed a Notice Requesting Post-Conviction Relief. Id. at 95-98. On July 22, 2021, Petitioner filed a PCR Petition. Doc. 9-2 at 2. On July 26, 2021, the trial court dismissed the PCR as untimely by “almost two years.” Doc. 9-3 at 4-5. The trial court noted that Petitioner failed “to state any claims for which” Arizona Rule of Criminal Procedure 33 “may provide relief in an untimely proceeding.” Id. at 5.
On September 7, 2021, Petitioner filed a Motion with the Arizona Court of Appeals requesting “Review in this Jurisdiction as Superior Courts Time Limits Has Surpassed. Move to Enter in this Jurisdiction for Review.” Id. at 56. On September 14, 2021, the Arizona Court of Appeals dismissed Petitioner's Motion and noted that the trial court had dismissed Petitioner's PCR Petition on July 26, 2021. Id. at 32.
On January 4, 2022, Petitioner filed a Motion requesting the Arizona Court of Appeals conduct a “collateral review” of his PCR case. Id. at 78. On January 18, 2022, the Arizona Court of Appeals declined to act on the Motion, noting that Petitioner's file was “closed,” as the matter had been dismissed by the Court of Appeals on September 14, 2021. Id. at 82.
On September 8, 2022, Petitioner filed a Motion with the Arizona Supreme Court, requesting appointed counsel and an evidentiary hearing. Id. at 84-5. It does not appear from the record in this Amended Habeas Petition that the Arizona Supreme Court acted upon Petitioner's Motion.
III. PETITION FOR A WRIT OF HABEAS CORPUS
On April 14, 2023, Petitioner filed an Amended Habeas Petition. Doc. 5. As summarized by this Court:
In Ground One, Petitioner claims he was subjected to vindictive prosecution and manifest injustice, and received an illegal sentence. In Ground Two, he alleges his sentence constitutes cruel and unusual punishment, in violation of the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments. In Ground Three, Petitioner asserts “the state prosecutor was placed on the Brady list for improper practices and illegal representation yet the Superior Court continued to allow her to practice.” [Petitioner] claims this resulted in “manifest injustice” and cruel and unusual punishment.Doc. 6 at 2. Respondents filed a Limited Answer on June 19, 2023 (doc. 9), and Petitioner filed a Reply on July 10, 2023. (Doc. 11.)
IV. TIMELINESS
A. Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), this Court may review petitions for a writ of habeas corpus from individuals held in custody under a statecourt 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). AEDPA imposes a one-year statute of limitations for state prisoners to file habeas petitions. 28 U.S.C. § 2244(d); Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1059 (9th Cir. 2007).
The timeliness of a habeas petition is a threshold issue for the Court to resolve. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). Under AEDPA, the one-year limitation runs 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 in state court, his PCR proceeding was “of-right” rather than collateral review, and the statute of limitations did not begin to run until “the conclusion of the [Rule 33] of-right proceeding and review of that proceeding.” Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). Where a petitioner does not seek review by the United States Supreme Court, the judgment becomes “final” upon the expiration of time for seeking such review. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); Summers, 481 F.3d at 717 (“The period of ‘direct review' includes the 90-day 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.” (cleaned up).
B. Statutory Tolling
Under AEDPA, the one-year limitation for seeking habeas review is statutorily tolled for the time period “during which a properly filed application for State postconviction or other collateral review is pending.” See 28 U.S.C. 2244(d)(2). An untimely post-conviction petition is not “properly filed” and does not toll the statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 410414 (2005) (“When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”) (citations and internal quotation marks omitted); Allen v. Siebert, 552 U.S. 3, 6 (2007) (untimely state post-conviction petition was not “properly filed” under AEDPA's tolling provisions).
Petitioner was sentenced on April 19, 2019. Doc. 9-1 at 80. Under Ariz. Crim. P. 33.4, a timely PCR Petition was required to have been filed by July 18, 2019 -- within 90 days of sentencing. Petitioner did not file his Notice requesting PCR until June 15, 2021. Doc 9-1 at 95-98. Because his PCR petition was untimely by nearly two full years, Petitioner is not entitled to statutory tolling under AEDPA. Pace, 544 U.S. at 418.
Petitioner's conviction became final under AEDPA on July 18, 2019 - 90 days after his sentencing. Accordingly, Petitioner was required under AEDPA to file his habeas petition by July 20, 2020 - one year from the date his conviction became final. 28 U.S.C. § 2244(d)(1)(A). The Amended Habeas Petition is untimely by over 2.5 years, as Petitioner initiated habeas proceedings on February 23, 2023, and filed his Amended Habeas Petition on April 14, 2023. Docs. 1, 5.
Because the statute of limitations actually ended on Saturday, July 18, 2020, the deadline was continued to Monday, July 20, 2020. See Rule 12 of the Rules Governing Section 2254 Cases; Fed.R.Civ.P. 6(a)(1)(C).
C. Equitable Tolling
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 and 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). The petitioner is required “to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003), as amended (Nov. 3, 2003) (citation omitted). Petitioner bears the burden of establishing equitable tolling's requirements. Pace, 544 U.S. at 418.
Petitioner asserts that his petition “is in correct time frame.” Doc. 5 at 11. Except for this unsupported assertion, which is contradicted by the record, Petitioner does not assert or show that he diligently pursued his right to file a habeas petition. See Smith v. Davis, 953 F.3d 582, 601 (9th Cir. 2020) (concluding habeas petitioner was not diligent because “he took 364 days after receiving his case file to file his habeas petition.”); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1014 (9th Cir. 2009) (“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.”). On these facts, where the record demonstrates Petitioner was not diligent in pursuing his rights, and his Amended Habeas Petition was untimely by over 2.5 years, Petitioner has not shown he is entitled to equitable tolling to excuse the untimely filing of his Petition.
V. CONCLUSION
The Court concludes that Petitioner's habeas petition is untimely without excuse. 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 (doc. 5) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENED 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.