Opinion
CV 20-00411-TUC-CKJ (LAB)
07-19-2021
Todd Russell Fries, Petitioner, v. J. F. Garrido, Warden, FCI Beaumont; e al., Respondents.
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE
Pending before the court is an amended petition for writ of habeas corpus filed on November 16, 2020, by Todd Russell Fries, an inmate currently held in the Federal Correctional Institute in Beaumont, Texas. (Doc. 8) Fries challenges a sentence imposed by the Pima County Superior Court. (Doc. 8, p. 1)
Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition because it is time-barred.
Summary of the Case
“After a jury trial, Todd Fries was convicted [in Pima County Superior Court] of multiple offenses stemming from his involvement in a No. of retaliatory attacks against former clients of his power washing and resurfacing business.” (Doc. 14-1, pp. 3-4) “Fries was convicted of twenty-one felony and misdemeanor offenses, and was sentenced [on June 13, 2016] to a combination of consecutive and concurrent sentences totaling 24.25 years.” (Doc. 14-1, pp. 5, 21)
At the time, Fries was serving a federal sentence for possession of a chemical weapon, false statements, and two counts of possession of an unregistered destructive device. (Doc. 14-1, p. 86) (citing CR 11-01751); (4:16-CV-00763-CKJ, Doc. 10, pp. 2-3) The Superior Court's sentencing minute entry discusses in detail the sentence imposed for each conviction and whether that sentence should run concurrently with or consecutively to his federal sentence. (Doc. 14-1, pp. 21-32)
On direct appeal, Fries argued (1) “there was insufficient evidence to support his attempted murder, kidnapping, aggravated assault, and endangerment convictions, ” (2) “the trial court erred by allowing the state to introduce evidence of chemical tests that did not replicate the chemical reaction which caused the gas cloud at the victims' residence, ” (3) “count six, charging him with endangerment of the neighbors, is duplicitous, ” and (4) “his sentence on the aggravated assault charge against neighbor C.R. constitutes double punishment because he was already serving time on a related federal conviction for using chemical weapons.” (Doc. 14-1, p. 5, 10, 12) (punctuation modified) The Arizona Court of Appeals affirmed his convictions and sentences on December 22, 2017. (Doc. 14-1, pp. 3-13) In resolving issue (4), the Arizona Court of Appeals stated that there was no double punishment for the purposes of A.R.S § 13-116, and “we accordingly find no error in the trial court's decision to order that Fries's aggravated assault conviction be consecutive to his federal sentence.” (Doc. 14-1, p. 12) (emphasis added)
On February 20, 2018, Fries filed a petition for review with the Arizona Supreme Court. (Doc. 14-1, pp. 170-182) On October 31, 2018, the Arizona Supreme Court denied Fries's petition for review. (Doc. 14-1, p. 184)
On October 22, 2020, Fries constructively filed in this court his initial petition for writ of habeas corpus. (Doc. 1, p. 11) He constructively filed his amended petition on November 10, 2020, which names the proper respondents but appears to raise the same claims. (Doc. 7); (Doc. 8) Fries claims (1) “appeal counsel rendered ineffective assistance of counsel for failing to raise illegal detainer issue, ” (2) “sentencing and appeal counsel rendered ineffective assistance of counsel for not objecting or raising the issue that the illegal detainer is a violation of Mr. Fries' Fifth, Eighth, and Fourteenth Amendment Constitutional rights, ” and (3) “Mr. Fries is factually and actually innocent of a consecutive state sentence that commences upon completing his federal sentence.” (Doc. 8) The petition is not a model of clarity. Apparently, Fries is not challenging any of his convictions or any of the individual sentences that he received for each conviction. Instead, Fries believes that his entire state sentence, the entire 24.25 years, should run concurrently with his federal sentence, which he was already serving at the time he was tried and convicted in state court. (Doc. 7); (Doc. 8); see (Doc. 14-1, pp. 5, 21) He further argues counsel were ineffective for failing to raise the issue. (Doc. 8)
His petition was placed in the prison mailing system on this date.
On February 11, 2021, the respondents filed an answer arguing that Fries's petition is untimely and, in the alternative, his claims are not cognizable. (Doc. 14) Fries did not file a timely reply. This court finds that Fries's claims are time-barred. The court does not reach the respondents' alternate arguments.
Discussion
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, however, must be filed within the applicable limitation period or it will be dismissed. The statute reads in pertinent part as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
The one-year limitation period applies to each claim in a habeas corpus petition on an individual basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). The limitation period for all of Fries's claims was triggered 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).
Fries's convictions and sentences were affirmed by the Arizona Court of Appeals on December 22, 2017. (Doc. 14-1, pp. 3-13) On October 31, 2018, the Arizona Supreme Court denied Fries's petition for review. (Doc. 14-1, p. 184) Fries then had 90 days to petition the U.S. Supreme Court for review. Sup. Ct. R. 13. When he did not do so, his judgment became final on January 29, 2019. See Bow en v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999). The limitation period began running the next day and expired one year later on January 29, 2020. On October 22, 2020, almost 9 months after the expiration of the limitation period, Fries constructively filed in this court his initial petition for writ of habeas corpus. (Doc. 1, p. 11) His amended petition was constructively filed on November 10, 2020, is time-barred even assuming that it relates back to his initial petition. See Ross v. Williams, 950 F.3d 1160, 1166 (9th Cir. 2020) (For an amended habeas petition to relate back to a timely filed initial petition, “both petitions must state claims that are tied to a common core of operative facts.”).
Fries argues the limitation statute does not bar his petition because, “My attorney failed to file a timely petition.” (Doc. 8, p. 12)
“[A] petitioner is entitled to equitable tolling [of the limitation statute] only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (punctuation modified), cert. denied, 131 S.Ct. 3039 (2011). “The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Id. “The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule.” Id.
Fries is not entitled to equitable tolling. He has made no showing that he has been pursuing his rights diligently. Moreover, he has not shown that an “extraordinary circumstance stood in his way and prevented timely filing.” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) Simple attorney negligence is not an extraordinary circumstance. Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 1085 (2007) (“Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.”).
Fries further argues that his “actual innocence claim should be deemed timely.” (Doc. 8, p. 12) Under certain circumstances, a claim of “actual innocence” serves as a “gateway through which a petitioner may pass whether the impediment is a procedural bar or expiration of the statute of limitations.” Stewart v. Cate, 757 F.3d 929, 937-938 (9th Cir. 2014).
“When an otherwise time-barred habeas petitioner 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 non-harmless constitutional error, the Court may consider the petition on the merits.” Stewart, 757 F.3d at 937-938. (punctuation modified). “The Supreme Court has recently cautioned, however, that tenable actual-innocence gateway pleas are rare.” Id. “A petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. The court must “assess how reasonable jurors would react to the overall, newly supplemented record, including all the evidence the petitioner now proffers.” Stewart, 757 F.3d at 938 (punctuation modified).
Here, however, Fries does not present any new evidence undermining his convictions. Instead, he asserts that he “is factually and actually innocent of a consecutive state sentence that commences upon completing his federal sentence.” (Doc. 8, p. 10) The only evidence he cites in support of his argument is the original sentencing minute entry. Id. Fries has not made a credible showing of “actual innocence” to rescue his untimely petition. See, e.g., Wildman v. Johnson, 261 F.3d 832, 843 (9th Cir. 2001) (Petitioner who argued “his consecutive sentences were illegal under the applicable Oregon statute” did not establish factual innocence because he “failed to challenge the facts underlying his convictions.”); McCutcheon v. Arizona, 2017 WL 610480, at * 1, n. 1 (D. Ariz. 2017) (“The Court agrees with the Magistrate Judge that even if the Court were to accept the proposition that an actual innocence exception extends to time-barred habeas claims challenging noncapital sentencing errors, an issue which neither the Supreme Court nor the Ninth Circuit has decided, the petitioner's actual innocence claim in Ground Five would be meritless because the petitioner is not claiming that he is factually innocent of the offenses for which he was convicted, but only that his sentences were legally insufficient due to his claim that he was not on parole at the time he committed the offenses.”).
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition for writ of habeas corpus. (Doc. 8) Fries's petition is time-barred.
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response without permission from the District Court.