Opinion
CV-23-2017-PHX-DLR (JFM)
05-06-2024
Javier Flores, Jr., Petitioner v. Lawrence M. Wharton, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Petitioner has filed an amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 9), which is now ripe for consideration. 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.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. PROCEEDINGS AT TRIAL
Petitioner was indicted on August 16, 2019 in Pinal County Superior Court on charges of robbery, burglary, disobeying a court order, preventing use of a telephone in an emergency, and auto theft. (Exh. A, Indictment.) The charges arose out of a domestic dispute with Petitioner's wife, and an associated order of protection.
Exhibits to the Answer (Doc. 24) are referenced herein as “Exh. .” Exhibits to the Reply (Doc. 26) are referenced herein as Exh. R-.” Petitioner's Reply exhibits are filed out of order. Consequently the docket and page number of such exhibits are also referenced.
On September 20, 2019 Petitioner entered into a written Plea Agreement (Exh. B), agreeing to plead guilty to the robbery in violation of Ariz. Rev. Stat. § 13-1902(A), etc. and burglary in violation of Ariz. Rev. Stat. § 13-1507, etc., in exchange for dismissal of the other charges and a stipulated sentence of 5 years on the robbery, and supervised release on the burglary. On the same date, Petitioner entered his plea of guilty, waived a presentence investigation, and was sentenced to 5 years in prison on the robbery and 3years probation on the burglary. (Exh. C, Sentence.)
Petitioner signed for receipt of a “Notice of Rights After Conviction” (Exh. D) advising Petitioner that as a pleading, non-capital defendant he had no right to a direct appeal, and any notice of post-conviction relief had to be filed within 90 days of sentencing, i.e. by Thursday, December 19, 2019.
B. PROCEEDINGS ON DIRECT APPEAL
Petitioner asserts in the Petition that he filed a direct appeal on various dates in 2022 (Doc. 9 at 2-3). For the following reasons, the undersigned finds Petitioner did not file a direct appeal. First, no notice of appeal is reflected on the trial court's docket (Exh. U). Under Ariz. R. Crim. Proced. 31.3(a)(2) a notice of appeal had to be filed within 30 days of oral pronouncement of sentence, or in this case by Monday, October 21, 2019. See Ariz. R. Crim. Proced. 1.10(a)(2) (computation when last day on Sunday). Second, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz. R. Crim. P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
C. POST CONVICTION RELIEF PROCEEDINGS
The undersigned also finds Petitioner did not seek post-conviction relief under Arizona Rules of Criminal Procedure 33, which governs PCR petitions by pleading defendants. (Petition, Doc. 9 at 4-5.)
Petitioner asserts in his Reply that he “did file a Rule 33 which was signed and mailed on December 1, 2019, in which is within the 90 days, but Pinal County Superior Courts never filed that petition that was not keyed in by the County Clerk.” (Reply, Doc. 26 at 2.) Indeed, the trial court records reflect no such filing. Rather, Petitioner's first post-sentencing filing was his discovery motions filed on June 20, 2022. (Exh. U, Trial Docket).
Petitioner's assertion that such a petition was sent lacks credibility because Petitioner provides no copies of such a filing and no evidence of having sent it, e.g. prison mail log, etc. Nor does Petitioner explain why such has not been provided.
Petitioner has attached to his Reply a Petition for Post-Conviction Relief dated December 1, 2019. (Exh. R-D, Doc. 26 at 29 et seq.) However, the contents of this document are inconsistent with a petition purportedly sent on December 1, 2019. First, the filing is checked to seek relief on, inter alia, the ground: “Rule 33.1(f): The failure to timely file a notice of post-conviction was not the Defendant's fault.” (Id. at 3.) It further asserts “Previous Post-Conviction Proceedings” filed “12-1-19”. (Id. at 4.)
Nor does Petitioner offer any explanation why he never followed up with the trial court on the missing filing. Nor does Petitioner explain why he did not attempt to file a delayed Rule 33 PCR proceeding asserting the lost filing. Petitioner does reference prison lockdowns and limitations arising from COVID 19, asserting this “took away all access to any legal access and issues to every inmate.” (Reply, Doc. 26 at 2.) However, Petitioner fails to support his claims of interference from COVID-19 with any specifics. And Petitioner was able to file documents with the courts at least as of his June 20, 2022 motions (discussed hereinafter) (Exhs. E, F, G). None of those filings referenced or inquired after a missing PCR petition. His first reference to such was in his Petition for Special Action (Exh. K), filed July 5, 2022 where he referenced “Rule 33 dated and mailed 12-1-19” and attached a Rule 33 Petition (id. at 39 et seq.) with the same incongruencies as the one now attached to the Reply (Exh. R-D).
Further, Petitioner references letters “[d]uring that time” to “[t]he Majors of Pinal County, and all the way to the President of the United States,” and “Senator Mark Kelly,” (Reply, Doc. 26 at 3.) Petitioner provides no information on or evidence of the dates or contents of such inquiries. However, Senator Kelly responded to Petitioner on April 29, 2022. (Exh. R-I, Doc. 26-1 at 5.) Thus Petitioner was at least able to write to the Senator at least some two months before his first post-conviction filing.
Finally, in addition to the missing Rule 33 petition, Petitioner purports to have had not just one, but multiple filings purportedly sent to the state court over the course of the surrounding month, none of which were received by the trial. In his Special Action Petition he identifies as unprocessed: (1) a Motion for Leave to Introduce Additional Evidence (11-29-2019); (2) a “Rule 33” (12/1/19); (3) a “Designated of Record on Appeal” (12/27/19); (4) a “New Trial Due to Insufficient Evidence Record for Appeal” (12/27/19); and a “Request to Search the Entire Record for Errors” (12/28/19). (Exh. K, Pet. Spec. Act., Doc. 24-2 at 19, 26.) In a June 9, 2023 motion, Petitioner complained of missing filings sent to the trial court March 27 and April 11, 2023. (See Exh. R, M.E. 7/12/23.) Petitioner further complains after the December 13, 2022 dismissal (see Exh. S) of his civil rights complaint he subsequently filed an appeal but was advised by the Court it was never received. (Reply, Doc. 26 at 4-5.) Indeed, no notice of appeal has been filed in that case. (See Flores v. Wharton, CV-22-1229-PHX-DLR-MHB.) That so many documents over such a course of time, to different courts, would have been lost or improperly disposed of is, without more, not credible.
D. POST SENTENCE MOTIONS
Petitioner did file the following post-judgment motions on June 20, 2022:
- A discovery motion (“Motion to Compel to Transmit Records”) regarding various records (Exh. E), denied August 16, 2022 (Exh. J);
- A discovery motion (“Motion to Compel to Transmit Records”) regarding officers and badge numbers (Exh. F), denied August 16, 2022 (Exh. I);
- A “Request for Findings of Fact and Conclusions of Law” (Exh. G), denied July 11, 2022 (Exh. H).
Petitioner's next filing (other than the Special Action discussed hereinafter) was on April 18, 2023, when Movant filed a “Motion to Correct or Modify Stipulations on Plea Agreement” (Exh. N), which was denied on June 5, 2023 (Exh. P).
On June 9, 2023, Movant filed a Motion for Ruling (“Motion to Compel Court to Transmit Record”), referencing his April 18, 2023 filing, and filings on March 27, 2023 and April 11, 2023, and complaining of the lack of a ruling on them. The trial court denied any filing prior to April 18, 2023, referenced its June 5, 2023 ruling, noted that copies had been sent to Petitioner's address of record, and denied the motion. (Exh. R, M.E. 7/12/23.)
E. SPECIAL ACTION PROCEEDINGS
On July 5, 2022 Petitioner filed with the Arizona Court of Appeals a “Petition to Introduce Additional Evidence” (Exh. K), arguing a denial of due process from the trial court's failure to rule on Petitioner's various “missing” motions and PCR petition, ineffective assistance of trial counsel, and Petitioner's innocence of the charges. The Arizona Court of Appeals construed this filing as a Petition for Special Action (Exh. R-E, Order 7/28/22, Doc. 26 at 45), and ultimately declined to accept jurisdiction (Exh. M, Order 8/10/22). Petitioner was given through September 9, 2022 to file a petition for review by the Arizona Supreme Court. Petitioner did not file such a petition with the Arizona Court of Appeals, and on September 19, 2022 that court issued its Mandate. (Exh. L, Special Action Docket; Exh. R-E, Mandate 9/19/22, Doc. 26 at 53.)
Nonetheless, Petitioner did ultimately file a “Petition to Introduce Additional Evidence” with the Arizona Supreme Court, along with a “Notice of Action to Amend Petition.” Both were denied on November 9, 2022. (Exh. R-F, Order 11/9/22, Doc. 26 at 56.)
F. PRIOR FEDERAL CIVIL COMPLAINTS
On July 22, 2022 Petitioner filed in CV-22-1229-PHX-DLR (MHB) a federal civil rights complaint asserting ineffective assistance of counsel in the underlying criminal proceeding, which was dismissed for failure to state a claim based on a statute of limitations. (Exh. S, Order 12/13/22.) In that proceeding, Petitioner filed a “Motion to Introduce Additional Evidence” (CV-22-1229-PHX Doc. 11), which was very similar to the original “Petition to Introduce Additional Evidence” (Doc. 1) filed in this case. The order dismissing that complaint denied that motion as moot. (Exh. S, Order 12/13/22.)
On December 15, 2022, Petitioner instituted a second federal civil rights proceeding, asserting various claims related to his arrest on the instant prosecution. After several amendments, that proceeding was dismissed for failure to state a claim. (Exh. T, Order 11/13/23.)
G. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, incarcerated at the time in the Arizona State Prison Whetstone Complex at Tucson, Arizona, commenced the current case by filing a “Petition to Introduce Additional Evidence” (Doc. 1). The Court construed this filing as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and dismissed it with leave to amend for failure to use the approved form. (Order 11/1/23, Doc. 5.)
On December 18, 2023, Petitioner filed a Notice of Change of Address (Doc. 18) with a new address suggesting his release. The Arizona Department of Corrections, Rehabilitation and Reentry website reflects Petitioner's release on supervision on December 14, 2023. See https://corrections.az.gov/inmate-data-search, searching for inmate 339193, last accessed 5/1/24.
On November 16, 2023 Petitioner filed the instant amended Petition (Doc. 9). Petitioner asserts four grounds for relief, which the Court has construed as asserting the following claims: (1) in Grounds One and Two, “officers lacked probable cause to arrest Petitioner;” (2) in Ground Three, “prosecutors lacked probable cause to charge Petitioner;” (3) in Ground Three, “the trial court abused its discretion with respect to Petitioner's postconviction proceedings;” and (4) in Ground Four, “ineffective assistance of counsel.” (Order 11/28/23, Doc. 13 at 2-3.)
Response - On January 19, 2024, Respondents filed their Limited Answer (Doc. 24), arguing the Petition is untimely and the claims raised procedurally defaulted.
Reply - On February 21, 2024, Petitioner filed his Reply (Doc. 26). Petitioner argues the merits of his claims, filings lost by the state trial court, restrictions from COVID 19, a history of mental illness, and his actual innocence based upon: (1) his ownership of the purportedly burgled home, and the purportedly stolen car and money; (2) lack of service of the order of protection prior to his arrest; (3) evidence showing he never took his wife's phone; (4) lack of evidence of forced entry or breaking in. (Id. at 1-2, 5-6, 8.) Petitioner argues that on November 14, 2022 he mailed a “Petition” to the United States District Court which was “accompanied by 42 USCs 1983” which he then appealed.
Evidentiary Hearings - The Court's Scheduling Order gave Petitioner 28 days from service of the answer to the petition to file motions for evidentiary hearings, to expand the records, etc. (Order 12/6/23, Doc. 17.) Petitioner did not timely file any such motions.
III. APPLICATION OF LAW TO FACTS
A. STATUTE OF LIMITATIONS
Respondents assert that Petitioner's Petition is untimely. A one-year statute of limitations applies to 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 the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The habeas petitioner, faced with a statute of limitations defense, has “the burden of demonstrating that the limitation period was sufficiently tolled.” Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
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.
For an Arizona noncapital pleading defendant, Arizona's post-conviction relief “proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). To bring such a proceeding, “a plea-convicted defendant must provide to the Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of his or her intent to file a Petition for Post-Conviction Review.” Id. at 715. Thus, the conviction of a pleading defendant becomes “final” at the conclusion of the first “of-right” postconviction proceeding, or the expiration of the time to do so.
Summers referenced Ariz. R. Crim. Proced. 32. Arizona has since separated PCR proceedings by pleading defendants into its Rule 33. The same 90-day deadline continues to apply. See Ariz. R. Crim. Proced. 33.4(b)(3).
The undersigned has found hereinabove that Petitioner did not actually file a timely PCR proceeding, and thus his conviction became final on Thursday, December 19, 2019, 90 days after his sentencing on September 20, 2019.
Therefore, Petitioner's one year began running on December 20, 2019, and without any tolling expired on Monday, December 21, 2020. Ordinarily, the period would have expired on Saturday December 19, 2020. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying “anniversary method” under Rule 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later on the anniversary of such adoption, April 24, 1997). However, for purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply, and would extend the deadline to the next court day, in this case, Monday, December 21, 2020
2. Timeliness Without Tolling
Petitioner's amended Petition (Doc. 9) was filed on November 16, 2023, long after the expiration of the limitations period.
However, Petitioner declares under penalty of perjury that the amended Petition was placed in the prison mailing system on November 14, 2023. “In 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). Despite the unexplained 12-day delay in receipt by the Clerk, the undersigned assumes arguendo (in Petitioner's favor) that his Petition was delivered to prison officials on the earlier date, and that it should be deemed “filed” as of that date.
In addition, because it does not alter the outcome, the undersigned assumes arguendo (in Petitioner's favor) that pursuant to Fed. R. Civ. Proc. 15(c), the current Amended Petition would relate back in time to the filing of Petitioner's original Petition (Doc. 1), filed September 22, 2023. Although no representation is made as to the original Petition's delivery to prison officials for mailing, the undersigned further assumes arguendo (in Petitioner's favor) that pursuant to the prison mailbox rule it should be deemed filed as of the date of signature, September 19, 2023.
Even so, Petitioner's Petition, due by December 21, 2020 was almost 33 months delinquent.
3. 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).
This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001). Accordingly, even if Petitioner's “Motion to Introduce Additional Evidence” (CV-22-1229-PHX Doc. 11) filed in his civil rights proceeding constituted a habeas petition, that filing would not toll the statute of limitations. Moreover, that motion was not filed until November 21, 2022, long after the limitations period expired. Once the statute has run, a subsequent post-conviction or collateral relief filing does not reset the running of the one-year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Further, 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).
Here, Petitioner did not actually file anything with the state courts during the twelve months his one-year limitations period was running. As discussed hereinabove, the undesigned does not find credible Petitioner's assertions that he submitted a PCR petition or any other state application for filing with the state courts between his sentencing and his June 20, 2022 motions.
Further, at the time of those first motions his one year had been expired for two and a half years, and no reset of the limitations period could occur. Jiminez, 276 F.3d at 482.
Finally, to result in tolling a state filing must constitute an “application for State post-conviction or other collateral review.” 29 U.S.C. § 2244(d)(2). State discovery motions do not toll the statute because, even if intended to support such a challenge, they do not challenge the conviction Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009). “[I]f a filing of that sort could toll the AEDPA limitations period, prisoners could substantially extend the time for filing federal habeas petitions by pursuing in state courts a variety of applications that do not challenge the validity of their convictions.” Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001).
Accordingly, Petitioner is entitled to no statutory tolling.
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).
To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances ma[de] it impossible to file a petition on time.Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations omitted). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.' ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). 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).
Unfiled State Petition - Here, Petitioner suggests that his purported December 1, 2019 PCR petition was improperly rejected by the trial court. (A reasonable inference might also be made that his missing filings were simply negligently lost by prison officials, in the mail, or by the trial court's clerks.) But, as discussed hereinabove, the undersigned does not find credible Petitioner's contentions that he had prepared and sent for mailing such a petition. However, even if Petitioner could convince this Court he did deliver his PCR petition to prison officials for mailing on December 1, 2019, he still could not establish a right to equitable tolling because of his subsequent delays.
Even if extraordinary circumstances prevent a petitioner from filing for a time, equitable tolling will not apply if he does not continue to diligently pursue filing afterwards. “If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.” Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 2000). Ordinarily, thirty days after elimination of a roadblock should be sufficient. See Guillory v. Roe, 329 F.3d 1015, 1018, n.1 (9th Cir. 2003).
Here, Petitioner knew at least by June 27, 2022 (when he signed his special action petition) that his PCR petition had gone unfiled. (Exh. K, Pet. Spec. Act., Doc. 24-2 at 19, 26.) On making such a discovery, a diligent habeas petitioner would have promptly sought to file his federal petition. Instead, Petitioner waited an additional 15 months, until September 2023, before filing his federal petition. Petitioner offers no explanation for this delay.
For the same reason, the December 13, 2022 denial of Petitioner's “Motion” in his civil rights proceeding (assuming it raised habeas claims and could have been construed as such), would not justify equitable tolling. (Exh. S, Order 12/13/22.)
Mental Illness - Petitioner asserts mental illness as the cause for his untimely filing.
"Where a habeas petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an "extraordinary circumstance beyond [his] control," and the deadline should be equitably tolled." Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). “However... mental incompetence is not a per se reason to toll a statute of limitations. Rather, the alleged mental incompetence must somehow have affected the petitioner's ability to file a timely habeas petition.” Nara v. Frank, 264 F.3d 310, 320 (3rd Cir. 2001), overruled in part on other grounds by Carey v. Saffold, 536 U.S. 214 (2002).
In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit articulated a two-part test to determine whether a mental impairment amounts to an “extraordinary circumstance” warranting equitable tolling. The impairment must have (1) been “so severe that the petitioner was unable personally.to understand the need to timely file.a habeas petition,” and (2) “made it impossible under the totality of the circumstances to meet the filing deadline despite petitioner's diligence.” Id. at 1093. This is not “a mechanical rule”; rather, equitable tolling determinations require “a flexibl[e], case-by-case approach.” Id. at 1096 (quoting Holland, 560 U.S. at 650) (internal quotation marks omitted).
In the Petition, Petitioner simply offers no facts to support such findings of mental impairment, let alone that they rendered a timely filing impossible. At most, in his Petition, Petitioner quotes from an Arizona case summarizing the requirements under state law for tolling of the Arizona statutes of limitations. (Petition, Doc. 9 at 25 (“11”) (quoting Doe v. Roe, 191 Ariz. 313, 326, 955 P.2d 951, 964 (1998)).)
In his Reply, Petitioner again quotes Doe, but the only facts he alleges are restrictions occurring from COVID 19 lockdowns discussed hereinafter. (Reply, Doc. 26 at 2-3.) Petitioner goes on to recount his mental health treatment in May through August, 2019, including court ordered treatment, which he attributes to a “[m]ental breakdown.” (Id. at 5.) But Petitioner alleges no facts to show that this resulted in his inability to understand the need to timely file a habeas petition during the time Petitioner's limitations period was running.
In Exhibit N (Doc. 26-1 at 18, et seq.) to his Reply, Petitioner provides a copy of mental health care records from Sonora Behavioral Health from June 11, 2019 through June 24, 2019, with an admitting diagnosis of “psychotic disorder”, “r[ule]/o[ut] Bipolar disorder I,” and “Cocaine use disorder.” (Id., Doc. 26-1 at 33.) He had recently tested positive for “methamphetamines, benzodiazepines, MDMA, and tricyclic antidepressant.” (Id. at 38. His admission was based on suicidal ideation, auditory hallucinations, and paranoia. (Id. at 35.) A subsequent evaluation noted paranoia and impaired recent memory, but that Petitioner was oriented to time, person, place, and situation, had perception within normal limits, and average intelligence. The updated diagnosis was: unspecified mood disorder and posttraumatic stress disorder by history. (Id. at 38-39.)
He also provides records from the Veterans Administration from June 26, 2019 through July 5, 2019, following admission for a “breakdown.” (Exh. R-O, Doc. 26-1 at 102, 26-2 at 1, et seq.) He was ultimately discharged with a diagnosis of unspecified schizophrenia spectrum and other psychotic disorders, major depressive disorder, PTSD, and unspecified anxiety. (Id. Doc. 26-2 at 9.) However, at discharge his thought processes were described as “[l]inear, goal-directed, coherent, not circumstantial or tangential, no neologisms or blocking,” his memory, attention and concentration was “grossly intact,” and his fund of knowledges was “[a]ppropriate for age and education level.” (Id. at 1314.)
In short, the records provided largely reflect what Petitioner describes: a mental breakdown prior to his offenses and arrest. At most they show chronic but variable mental illness, exacerbated by drug use. But mental illness is not synonymous with mental incompetence or incapacity. “[M]ental illness tolls a statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them. Any other conclusion would perpetuate the stereotype of the insane as raving maniacs or gibbering idiots.” Miller v. Runyon, 77 F.3d 189, 191 -192 (7th Cir. 1996) (applying equitable tolling to Rehabilitation Act).
What is not reflected in these medical records is anything to show ongoing mental incompetence, or that Petitioner lacked the ability to understand the need to timely file a habeas petition during the time Petitioner's limitations period was running.
Finally, to be entitled to an evidentiary hearing on these issues, Petitioner must make “a non-frivolous showing that he had a severe mental impairment during the filing period.” Bills, 628 F.3d at 1100 (emphasis added). Petitioner has not made such a showing.
COVID 19 - Petitioner complains about restriction on his access to legal resources due to restrictions caused by the COVID-19 pandemic. (Reply, Doc. 26 at 2.) But Petitioner proffers nothing to show that those restrictions made it impossible for Petitioner to file during the time his one-year was expiring.
Moreover, Petitioner's one year began running in December, 2019. COVID-19 had only begun to appear in the United States and to be recognized as a pandemic, in March, 2020. See CDC Museum COVID-19 Timeline, https://www.cdc.gov/museum/timeline/covid19.html, last accessed 4/30/24. Petitioner offers nothing to show that he was diligent in filing his federal petition during those three months.
Further, Petitioner was sufficiently free of any restrictions to be able to make state filings at least as of June 20, 2022, and federal filings at least as of July, 2022. Even so, he did not file his original Petition for over 15 months, until September, 2023. Whatever limitations may have resulted from COVID-19, Petitioner fails to show he was diligent in pursuing his federal habeas petition from June of 2022.
Conclusion - Even when considered together, Petitioner fails to show extraordinary circumstances from his “lost” state applications, his mental illness, and COVID-19 kept him from timely filing his federal habeas petition.
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).
Citing a footnote declining to decide in a 2007 Ninth Circuit case, Respondents argue in a footnote that the applicability of the actual innocence exception to a pleading defendant is “an open question.” (Answer, Doc. 24 at 8, n.1.) But see Bousley v. U.S., 523 U.S. 614, 624 (1998) (requiring pleading defendant to show actual innocence of all charges, including those dismissed by agreement); Vosgien v. Persson, 742 F.3d 1131, 1137 (9th Cir. 2014) (finding actual innocence of charges to which petitioner pled guilty and remanding to determine merits of claims on those charges); and Doe v. Menefee, 391 F.3d 147, 169 (2d Cir. 2004) (discussing consideration of admissions in entering plea in deciding whether actual innocence has been shown). The undersigned assumes arguendo (in Petitioner's favor) that the exception applies notwithstanding Petitioner's guilty plea.
The undersigned further assumes arguendo (in Petitioner's favor) that the actual innocence exception applies to the entire Petition if Petitioner shows his actual innocence of any of the offenses for which he was convicted, not just if he shows actual innocence on all the convictions he challenges. But see Vosgien v. Persson, 742 F.3d 1131, 1136 (9th Cir. 2014) (concluding that for purposes of avoiding a procedural default “a demonstration of actual innocence under Schlup cannot excuse a petitioner's procedural default for more than the counts as to which he has shown actual innocence”).
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)). This exception, referred to as the “Schlup gateway,” applies “only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.' ” Id. at 400 (quoting Schlup, 513 U.S. at 316). “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 asserts his actual innocence based upon assertions that: (1) the order of protection was not served on him prior to his arrest on the instant charges; (2) the property purportedly stolen was community property between him and his wife, the victim; (3) although the car was purchased by the victim and a third party (MEG), the third party had gifted it to the victim and Petitioner; (4) he did not steal the victim's money or cellphone; and (5) there was no forced entry or broken window. Petitioner presents no new reliable evidence to support his assertions, relying primarily on his own self-serving assertions.
Petitioner supplies character statements from his sister (Exh. R-J), his wife's “best friend” (Exh. R-K), himself (Exh. R-L), and his wife (Exh. R-M). None of them relate to Petitioner's actual innocence.
Petitioner does provide what appears to be a social media post from a car dealer congratulating Petitioner and the victim on “their” new car. (Doc. 26 at 9.) But Petitioner admits he was not a purchaser of the vehicle. And he offers no reliable evidence to show the purported gift by the co-purchaser. Moreover, he was not convicted on the charge related to the vehicle.
Petitioner relies upon community property. However, regarding the vehicle, property acquired during a marriage by gift is separate property. Ariz. Rev. Stat. § 25-211(A)(1). Further, Arizona's robbery statute precludes “taking any property of another” by force or threat. Ariz. Rev. Stat. § 13-1902(A). “Property of another” is defined in Ariz. Rev. Stat. § 13-1801, see Ariz. Rev. Stat. § 13-1901(3), as “property in which any person other than the defendant has an interest on which the defendant is not privileged to infringe, including property in which the defendant also has an interest.” Ariz. Rev. Stat. § 131801(13) (emphasis added). Arizona spouses have “equal management, control and disposition rights over their community property.” Ariz. Rev. Stat. § 25-214. Petitioner has shown no privilege to infringe on his spouse's equal right to control their community property, and doing so by force of threat was a robbery. Cf. Mori v. Mori, 124 Ariz. 193, 197, 603 P.2d 85, 89 (1979) (considering trustee obligations of spouse when dealing with community property for business reasons, and consent by spouse to gift of community property to third party precluded recoupment).
Petitioner attempts to establish proof of his right to the money taken from his wife by asserting that upon his arrest, the money was placed in his inmate account, and was not retained in evidence. (Reply, Doc. 26 at 2.) But Petitioner proffers no credible evidence that occurred. At most, he presented with his Petition for Special Action a Deputy Report showing the currency was held by the “Pinal County Sheriff's Office,” with the owner identified as Petitioner's wife. (Exh. K, Doc. 24-2 at 53.) Moreover the arresting officer or booking officer's treatment of the cash is not of itself evidence the cash was not stolen. Rather, simply taking possession of the cash (and even giving Petitioner an inmate account credit for it) was an appropriate disposition when Petitioner had not yet been convicted of the crime, only charged with it.
Petitioner provides a copy of a Standard Option Agreement and Standard Lease Agreement (Exh. R-C, Doc. 26 at 12) showing Petitioner was a lessee and optionee on what was presumably the marital home. But under Arizona law, burglary is not determined by ownership or leaseholds or other interests in the property, but rather by the lawfulness of presence. “A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.” Ariz. Rev. Stat. § 13-1507. “'Enter or remain unlawfully' means an act of a person who enters or remains on premises when the person's intent for so entering or remaining is not licensed, authorized or otherwise privileged.” Ariz. Rev. Stat. § 131501(2). The key is whether the defendant had possessory rights to the property. See State v. Altamirano, 166 Ariz. 432, 435, 803 P.2d 425, 428 (Ct. App. 1990) (finding right to possession prevented homeowner from being guilty of burglary by remaining after he formed the intent to commit the requisite felony). Here, whatever possessory right Petitioner had in the home had been suspended by the order of protection precluding him from the home.
Petitioner argues the order of protection was not effective because it had not yet been served on him. But again, Petitioner offers no credible evidence that such was the case, only his own self-serving statements. Petitioner did attach to his Petition for Special Action (Exh. K) a Deputy Report that states: “Javier Flores was then served with the order of protection against him.” (Doc. 24-2 at 52.) Arguably the referenced time was after Petitioner's arrest. However, the same report reflects that the evening of the offenses, Petitioner was released from the jail on a previous arrest for domestic violence, and the jail called to warn the victim and advised “that Javier had been advised to not return to the residence.” (Id.) Petitioner proffers nothing to show that such warning was not coupled with service of the order of protection, or that service had not been otherwise effected prior to the offenses.
Petitioner also asserts the lack of a breaking or other forced entry. The burglary statute under which Petitioner was convicted “abrogate[d] the common law insofar as it does not include a requirement of breaking and entering into the dwelling of another.” Altamirano, 166 Ariz. at 434, 803 P.2d at 427. “‘Entry' means the intrusion of any part of any instrument or any part of a person's body inside the external boundaries of a structure or unit of real property.” Ariz. Rev. Stat. § 13-1501(3). It requires only that the defendant “penetrate whatever forms a structure's outer boundary-a door, window, or wall, for example.” State v. Kindred, 232 Ariz. 611, 614, 307 P.3d 1038, 1041 (Ct. App. 2013). Thus, it is irrelevant how Petitioner entered the home, only that he entered.
Finally, in the face of all of the foregoing, Petitioner pled guilty to the robbery and burglary, thereby admitting to having committed those offenses.
In sum, Petitioner fails to show by new, credible evidence that there is a reasonable probability that no reasonable juror would have convicted him.
6. Summary re Statute of Limitations
Taking into consideration the provision for statutory tolling, Petitioner's one year habeas limitations period commenced running on December 20, 2019, and expired Monday, December 21, 2020. Petitioner's petition can be deemed filed no earlier than September 19, 2023, making his Amended Petition almost 33 months 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
Respondents argue that Petitioner's claims are procedurally defaulted, and thus are barred from federal habeas review. However, Respondents rely in part on Arizona's recently adopted rule precluding PCR petitions on claims waived by a guilty plea, Ariz. R. Crim. Proced. 33.2(a)(1). Exhaustion is only required for state remedies that are “available” and “effective.” 28 U.S.C. § 2254(b)(1). Under Rule 33.2(a)(1), a pleading defendant appears to never have the opportunity to present to the state courts a claim which the state would hold barred by a guilty plea. Procedural default applies only where the inability to raise the claim results from the petitioner's failure “to follow applicable state procedural rules in raising the claim.” Reed v. Ross, 468 U.S. 1, 10 (1984). Here, Petitioner's remedy on his claims purportedly waived-by-guilty-plea claims is not unavailable because Petitioner failed to comply with some procedural rule, but because he pled guilty. Arguably, therefore, there was no remedy available to Petitioner on these claims.
In effect, Arizona appears to have adopted a substantive rule (waiver by plea) as a procedural rule, thereby arguably eliminating any state review, and leaving those claims to de novo review on habeas (albeit presumably still subject to federal substantive law on waiver by plea).
Presumably, any rebuttals Petitioner might have to such a procedural default (e.g. cause and prejudice and actual innocence) would likely turn on the same issues resolved against Petitioner in addressing the statute of limitations defense, i.e. Petitioner's credibility regarding the lost PCR petition, Petitioner's mental competence, and the impacts of COVID-19.
Moreover, to bar habeas relief, a state procedural bar must be independent of federal law. The application of the bar in Rule 33.3(a) arguably is dependent upon a prior determination of the federal question of what federal claims are waived by a guilty plea.
Finally, because Petitioner arguably never had the right to seek such review, the state's timeliness bar (which Respondents also rely on) would not be the cause of his inability to raise these claims. The whole procedure was simply never available to hear Petitioner's purportedly waived claims.
To avoid resolving these issues, which are apparently of first impression and which the parties have not discussed, the undersigned does not reach Respondents' procedural default defense.
IV. CERTIFICATE OF APPEALABILITY
The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “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).
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 Amended Petition for Writ of Habeas Corpus (Doc. 9) 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 shall 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.”