Opinion
No. CIV 02-1294 PCT RCB (MS).
July 25, 2006
ORDER
This matter is before the Court on a Petition for Writ of Habeas Corpus (doc. # 1) filed pursuant to 28 U.S.C. § 2254 on July 11, 2002 by Petitioner Gordon Lorey Grilz, currently incarcerated at the Arizona State Prison in Florence, Arizona. An answer (doc. # 7) was filed on September 18, 2002, and Petitioner filed a timely reply (doc. # 11) on October 25, 2002. On March 25, 2005, the Magistrate Judge issued a Report and Recommendation ("RR") (doc. # 15) recommending that the Petition be denied and dismissed in its entirety as time-barred under the one-year statute of limitations established by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner filed timely objections to the RR (doc. # 23) and supplemental exhibits (doc. # 24) in support of these objections. Having reviewed the record, the RR, and Petitioner's objections and exhibits, the Court now rules.
I. BACKGROUND
A. Conviction and Direct Appeal
On May 14, 1981, Petitioner was convicted in the Superior Court of Arizona in Yavapai County on one count of first-degree murder and one count of second-degree murder in connection with the shooting deaths of his estranged wife, Linda Grilz, and her friend, Kim Hopfinger. See State v. Grilz, 136 Ariz. 450, 666 P.2d 1059, 1061 (1983). Petitioner's defense at trial was based on insanity induced by prolonged drug and alcohol abuse. Id.
On direct appeal, Petitioner argued that certain crime scene photographs and a tape recording of Linda Grilz's telephone call to the Sheriff's Department should not have been admitted into evidence, the jury instruction on insanity was improper and unconstitutional, and the sentence for the second-degree murder was improperly enhanced. Id. The Supreme Court of Arizona determined that the challenged evidence was admissible and held that the jury instructions, while having an improper tendency to confuse the jury, were not unconstitutional. Id. at 1062-68. However, the Court found that the sentence for the second degree murder conviction was improperly enhanced. Id. 1067-68. On June 14, 1983, the court affirmed the convictions and the life sentence in connection with the first-degree murder conviction, but remanded for resentencing in connection with the second-degree murder conviction. Id. at 1061.
On remand, the trial court sentenced Petitioner to a fourteen-year sentence for the second-degree murder conviction, to be served consecutive to the life sentence for the first-degree murder conviction. See Answer (doc. # 7), Ex. C at 2. The Arizona Court of Appeals affirmed the new sentence. Id. at 14. On October 11, 1985, after the Supreme Court of Arizona had denied further review, the Arizona Court of Appeals issued its mandate finalizing Petitioner's convictions. See Answer (doc. # 7), Ex. D, E.
B. Post-Conviction Proceedings
On September 30, 1996, seven months after the AEDPA went into effect, Petitioner retained attorney David Braun for representation in state post-conviction proceedings. Reply (doc. # 11), Ex. 3 ¶ 3. Braun's affidavit states that, on October 10, 1996, he obtained a fully executed Notice of Post-Conviction Relief from Petitioner, which he gave to his secretary on the same day to be mailed to the Superior Court of Arizona in Yavapai County. Id. ¶¶ 4, 5. Thus, Braun claims that by these actions he "caused [the Notice] to be mailed." Id. ¶ 8. The state court has no record of such filing and neither Petitioner nor counsel has submitted a copy of the executed notice or a conformed copy of its filing. See id. ¶¶ 6-8.
Although Braun's affidavit asserts his familiarity with the AEDPA's one-year statute of limitations as of October 10, 1996,see Reply (doc. # 11), Ex. 3 ¶ 4, Petitioner contends that he never had knowledge of the same and that Braun never made him aware of the limitations period. See Objections (doc. # 23) at 8, 10; Errata (doc. # 24) at 3-4.
On October 29, 1998, Petitioner filed his second Petition for Post-Conviction Relief in the Superior Court of Arizona in Yavapai County raising the following claims: (1) the 911 dispatcher's failure to send help in response to the first emergency call constituted newly discovered evidence of an intervening and superceding cause of death, (2) he received ineffective assistance of trial counsel for various reasons, (3) that appellate and post-conviction counsel were ineffective for failing to raise the ineffectiveness of trial counsel on direct review or in his first Petition for Post-Conviction Relief, (4) the trial court's refusal to provide supplemental instructions regarding premeditation violated his due process rights, and (4) the prosecution committed misconduct, in violation of his due process rights, by interfering with defense counsel's ability to call a witness. Answer (doc. # 7), Ex. F. at 7-24.
Petitioner's first Petition for Post-Conviction Relief was filed on December 16, 1981, before his convictions had become final on direct review. Answer (doc. # 7), Ex. A. That petition was denied on January 28, 1982. Answer (doc. # 7), Ex. B.
Although this claim is not asserted in his second Petition for Post-Conviction Relief, the trial court's extensive discussion of this claim suggests that it was properly brought to the court's attention some time before its ruling. See Answer (doc. # 7), Ex. H at 2-6.
One respect in which Petitioner contended he had received ineffective assistance from trial counsel was that counsel had decided not to call a crucial defense witness, Mary Ann Jordan, possibly as a result of collusion with the prosecutor. Id. at 13-14, 23-24. Petitioner expected that Jordan could have testified about the character of the victim, Kim Hopfinger, for pursuing married women. Id. At trial, counsel told Petitioner "that he and [the prosecutor] had discussed Jordan and that they had decided that she 'had been through enough,' [and] therefore he would not call her as a witness at trial." Errata (doc. # 24) at 2 n. 1. On November 30, 1998, a private investigator hired by Petitioner's post-conviction counsel to investigate this claim discovered that the prosecutor had previously represented Jordan in an unrelated matter and thereafter maintained a personal relationship with her. See Errata (doc. # 24), Ex. 1 at 1, 4.
On August, 18, 2000, the court denied the petition and, on January 8, 2002, the Supreme Court of Arizona issued an order denying review. Answer (doc. # 7), Ex. H at 1-6; Reply (doc. # 11), Ex. 1.
On July 11, 2002, Petitioner filed the present Petition for Writ of Habeas Corpus (doc. # 1) in this Court pursuant to 28 U.S.C. § 2254 setting forth the following grounds for relief:
Ground One: His right to due process under the Fourteenth Amendment was violated because the trial judge's jury instruction improperly eviscerated the state's burden to prove him sane.
Ground Two: Trial counsel was ineffective under the Sixth Amendment for failing to:
a. object to the insanity jury instruction
b. request a voluntariness hearing
c. adequately and effectively argue for a change of venue
d. subpoena crucial defense witnesses
e. cross-examine state witnesses
f. request a blood or urine test
g. renew a Rule 11 motion to have Petitioner's competency to stand trial determined
h. strike a juror for cause who knew a prosecution witness
i. object to a deficient jury instruction on premeditation
j. raise all available defenses; and
k. seek a new trial based on a court employee making statements to the jury with the intent to influence.
Ground Three: Appellate counsel was ineffective under the Sixth Amendment for failing to raise the above ineffective assistance of counsel claims in his first Petition for Post-Conviction Relief.
Ground Four: The trial court erred in violation of his due process rights under the Fourteenth Amendment to provide the correct jury instruction on premeditation.
Pet. (doc. # 1) at 5-8.
II. STANDARD OF REVIEW
The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). Thus, a state prisoner is not entitled to federal habeas relief with respect to any federal claim that was adjudicated on the merits in state court proceedings unless the state court's adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); accord Campbell v. Rice, 302 F.3d 892, 896 (9th Cir. 2002). To determine whether a state court decision is contrary to federal law, the district court must look to the state's last reasoned decision as the basis for its judgment.Campbell, 302 F.3d at 896.
Under the AEDPA's "new, highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 334 n. 7 (1997), the district court is not permitted to make a de novo determination of any federal claim adjudicated on the merits by the state court. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003), overruling Van Tran v. Lindsey, 212 F.3d 1143, 1149 (9th Cir. 2000). State court findings of fact are presumed to be correct unless the petitioner rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);Davis v. Woodford, 333 F.3d 982, 991 (9th Cir. 2003); Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001); Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir. 1999).
III. DISCUSSION
Because this case was filed after April 24, 1996, it is governed by the AEDPA. Woodford v. Garceau, 538 U.S. 202, 210 (2003); Lindh, 521 U.S. at 336. The AEDPA requires a state prisoner to seek federal habeas corpus relief within one year after the state conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). If a prisoner's conviction became final before the AEDPA's enactment, as in Petitioner's case, the prisoner would have a one-year grace period expiring on April 24, 1997 within which to file a petition. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (holding that Fed.R.Civ.P. 6(a) governs the calculation of the AEDPA's one-year grace period, such that the grace period would expire on April 24, 1997, not April 23, 1997). The AEDPA's one-year statute of limitations is strictly applied; a petitioner who takes advantage of a longer state statute of limitations in exhausting state remedies will be barred from seeking federal relief. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that "section 2244(d)(1) is not a per se violation of the Suspension Clause" because the "AEDPA's one-year statute of limitations, even if in tension with a longer state statute of limitations, does not render federal habeas an inadequate or ineffective remedy.").
There are two statutory bases relevant to this case under which the AEDPA's limitations period may be tolled or delayed. First, the AEDPA's one-year limitations period is tolled by statute during the pendency of properly filed state petitions challenging the judgment or claim at issue. 28 U.S.C. § 2244(d)(2);Patterson, 251 F.3d at 1247 (holding that pendency of properly filed state petition statutory tolled the one-year grace period for filing of federal petition challenging pre-AEDPA conviction). Second, the AEDPA's one-year limitations period does not begin to run until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D).
In addition to these statutory bases, equitable tolling of the limitations period may also be appropriate where "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
Petitioner argues that this Petition should be found timely based on sections 2244(d)(2) and 2244(d)(1)(D) as well as principles of equitable tolling. For the reasons below, as well as the reasons set forth in the Magistrate Judge's RR (doc. # 15), the Court finds that neither of the statutory or equitable bases upon which Petitioner relies are sufficient to overcome the conclusion that Petitioner's claims are barred by the AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d).
A. Statutory Bases to Toll or Delay the Limitations Period
Petitioner raises the following statutory bases to toll or delay the limitations period: (1) his one-year grace period for filing his federal petition should be tolled from October 15, 1996 until January 8, 2002, the period during which he contends his second Petition for Post-Conviction Relief was pending in the state court, see § 2244(d)(2), and (2) with respect to his claim of ineffective assistance of trial counsel based on counsel's failure to call a potential defense witness, the one-year limitations period did not begin to run until November 30, 1998, the date on which he claims the factual predicate of that claim was discovered by his private investigator, see § 2244(d)(1)(D). Reply (doc. # 11) at 2-4, 7; Objections (doc. # 23) at 3-8.
1. Pendency of Properly Filed State Petition
Petitioner states that Braun, who was retained as post-conviction counsel on September 30, 1996, met with him on October 10, 1996 to obtain an executed Notice of Post-Conviction Relief, which Braun subsequently delivered to his secretary for mailing to the state court. Reply (doc. # 11), Ex. 3 ¶¶ 3-5. Petitioner maintains that Braun "caused [the notice] to be mailed to the [Superior Court of Arizona for Yavapai County]" on October 10, 1996 and, therefore, the notice should be deemed to have been received by the court on or about October 15, 1996. See id. ¶ 8. Thus, for purposes of tolling under section 2244(d)(2), Petitioner contends that he had a properly filed state petition pending from October 15, 1996 to January 8, 2002 such that the present Petition, filed July 11, 2002, would be timely by six days.
Petitioner's argument relies in part on the common law mailbox rule that the "proper and timely mailing of a document raises a rebuttable presumption that it is received by the addressee." Anderson v. United States, 966 F.2d 487, 491 (9th Cir. 1992); Reply (doc. # 11) at 4. To raise this presumption, the proponent must show "direct proof of a timely postmark." Anderson, 966 F.2d at 491. For example, in an Eight Circuit decision discussed with approval by the Ninth Circuit inAnderson, the court held that this requirement had been met where the proponent "testified that he saw the postal clerk 'weigh the envelope, put postage on it, cancel it, and put it into the appropriate bundle of outgoing mail.'" Id. (quotingWood v. Comm'r, 909 F.2d 1155, 1157 (8th Cir. 1990)).
Petitioner suggests that the prison mailbox rule may also apply. See Objections (doc. # 23) at 5-6. The prison mailbox rule, under which a petition is deemed filed at the moment it is delivered to prison officials for forwarding to the court clerk, only applies to filings by pro se petitioners. See Houston v. Lack, 487 U.S. 266, 276 (1988); Patterson v. Stewart, 251 F.3d 1243, 1245 n. 2 (9th Cir. 2001). In this case, Petitioner was represented by counsel in connection with his post-conviction proceedings and, therefore, the prison mailbox rule does not apply.
In the present case, Petitioner has not produced any proof sufficient to raise the presumption that the notice of his second petition was received by the court. His attorney states in his affidavit that he obtained an executed notice from Petitioner, which he subsequently gave to his secretary. There is no proof, however, that the secretary followed through by mailing the notice to the court. Absent such evidence, the simple assertion that Braun's actions "caused [the notice] to be mailed," does not constitute proof of a timely mailing. Petitioner suggests that this critical evidentiary gap can be bridged by affording deference to Braun as an officer of the court. This adds nothing to the analysis because Braun's statements, even if true, do not prove that the notice was mailed by his secretary. Without proof of the antecedent fact of the Notice's mailing, there can be no presumption that it was received by the court.
Alternatively, Petitioner points out that, under the post-conviction rules in effect in 1996, the filing of a notice was required to initiate post-conviction proceedings. Reply (doc. # 11) at 2; Ariz. R. Crim. P. 32.4(a) (West 1996) ("A proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred."). Thus, Petitioner suggests that the state court's cognizance of his second Petition for Post-Conviction Relief is implicit proof that the requisite notice had been filed — this notwithstanding the absence of any court record of such filing. Id.; Objections (doc. # 23) at 5 ("The very fact that the trial court allowed counsel to file a substantive petition in 1998 presupposes that timely 'Notice' was filed."). Petitioner argues that had the notice not been received "the trial court surely would have said so" in its order denying relief. Objections (doc. # 23) at 6.
This inferential line of argument is only valid if the court relied upon the 1996 post-conviction rules. See Ariz. R. Crim. P. 32.4(a) (West 1996); Isley v. Ariz. Dep't of Corr., 383 F.3d 1054, 1055 (9th Cir. 2004). However, it is clear from the first paragraph of the court's order that the 1996 rules were not applied. See Answer (doc. # 7), Ex. H at 1. Instead, the court applied the post-conviction rules in effect at the time of Petitioner's conviction which, unlike the 1996 rules, did not require the filing of a notice to initiate proceedings. See id. As such, it would be a fallacious inference to construe the order as tacitly acknowledging that a notice had previously been filed.
In rejecting the State's assertion that the petition was untimely, the judge stressed that the "post-conviction rules in effect at the time of [Petitioner's] conviction allowed him to file a Notice of Post-Conviction Relief at any time." Answer (doc. # 7), Ex. H at 1. (emphasis added). This conclusion could not have been reached under the 1996 rules and would only have been consistent under the rules in effect either in 1983, when his conviction and sentence for first-degree murder became final, or in 1985, when his sentence for the second-degree murder became final. Compare Ariz. R. Crim. P. 32.4(a) (West 1983) ("A petition may be filed at any time after entry of judgment and sentence.") and Ariz. R. Crim. P. 32.4(a) (West 1985) (same)with Ariz. R. Crim. P. 32.4(a) (West 1996) ("In a non-capital case, the notice must be filed within ninety days of the entry of judgment and sentence. . . ."). Moreover, neither the 1983 rules nor the 1985 rules required the filing of a "notice" to initiate post-conviction proceedings. Compare Ariz. R. Crim. P. 32.4(a) (West 1983) ("A proceeding is commenced by filing a petition. . . .") and Ariz. R. Crim. P. 32.4(a) (West 1985) (same) with Ariz. R. Crim. P. 32.4(a) (West 1996) ("A proceeding is commenced by timely filing a notice of post-conviction relief. . . .").
Finally, Petitioner has requested an evidentiary hearing wherein the clerk of the Superior Court of Arizona in Yavapai County would be called to testify about the record keeping in his case. Reply (doc. # 11) at 4. The need for such a hearing is premised on Braun's allegation that his representation of Petitioner was "plagued" by the court's "routine failure to timely file and/or return conformation copies of motions filed on [Petitioner's] behalf." Reply (doc. # 11), Ex. 3 ¶ 6. Braun suggests that the only possible explanation for the lack of a court record reflecting that a notice had been filed is that the notice must have been "misplaced, misfiled, or lost" by the court. Id. ¶ 7. Because of the conspicuous lack of evidence that his secretary filed the notice, this Court cannot accept the characterizations and conclusions drawn in Braun's affidavit as raising a colorable argument for an evidentiary hearing concerning the state court's record keeping.
For purposes of tolling under section 2244(d)(2), the Court finds that Petitioner had a properly filed petition pending in state court from October 29, 1998 until January 8, 2002.
2. Newly Discovered Facts
In Ground Two of the Petition, Petitioner asserts that trial counsel was ineffective for failing to subpoena a crucial defense witness, Mary Ann Jordan. Pet. (doc. # 1) at 6. Petitioner contends that the statute of limitations did not begin to run on this claim until November 30, 1998, claiming that under section 2244(d)(1)(D) this was the earliest date he could have discovered the factual predicate of this claim through the exercise of due diligence. Reply (doc. # 11) at 7. For the stated reasons below, the Court finds that Petitioner knew the factual predicate of this claim since the time of his trial, making the present Petition untimely. Alternatively, the Court notes that the claim would also be denied on its merits under section 2254(d).
On November 30, 1998, a private investigator hired in connection with Petitioner's second state petition discovered that the prosecutor had previously represented Jordan in an unrelated matter and thereafter maintained a personal relationship with her. Reply (doc. # 11) at 7; Objections (doc. # 23) at 6-8; Errata (doc. # 24), Ex. 1 at 1,4. Thus, Petitioner contends that under section 2244(d)(1)(D) the statute of limitations clock would have begun ticking on November 30, 1998, but remained tolled under section 2244(d)(2) during the pendency of his state petition until January 8, 2002, making his ineffective assistance claim timely by approximately six months. Reply (doc. # 11) at 7; Objections (doc. # 23) at 6-8.
To better appreciate Petitioner's argument, it is necessary first to review the requirements of a successful Sixth Amendment claim for ineffective assistance of counsel. The Supreme Court has stated that a meritorious claim of ineffective assistance requires the petitioner to demonstrate (1) that counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-91 (1984); Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001). Petitioner likens this case to Hasan, in which the Ninth Circuit held that the limitations period does not begin to run on an ineffective assistance claim until the petitioner discovers the factual predicate for both prongs of the Strickland test.See Hasan, 254 F.3d at 1155.
In Hasan, the petitioner filed a federal habeas petition on June 1, 1998 claiming that counsel had been ineffective for failing to investigate, or to demand inquiry into, possible juror misconduct. Id. at 1152. Because the petition was filed after the one-year grace period allowed by the AEDPA, Warden Galaza moved to dismiss Hasan's petition as untimely under 28 U.S.C. § 2244(d)(1). In response, Hasan contended that the limitations period did not begin to run with respect to his ineffective assistance claim until December 1996. Id. at 1153. It was at this time, Hasan asserted, that he learned the facts that would have been revealed by an investigation into the juror misconduct — that a prosecution witness in another case, who had reportedly slipped a surreptitious note to a juror in Hasan's case, was at the time romantically involved with a prosecution witness testifying against Hasan. Id.
Like Petitioner in this case, Hasan's conviction became final prior to the enactment of the AEDPA, allowing him until April 24, 1997 to file his federal habeas petition. See Hasan, 254 F.3d at 1151.
On April 22, 1997, Hasan filed his state habeas petition raising an ineffective assistance claim based on the information he learned in December 1996 and, two days later, obtained an affidavit from the witness in his case verifying that information. See id. at 1152-53. His state petition was ultimately denied by the California Supreme Court on April 29, 1998, approximately one month prior to the filing of his federal habeas petition. Id. at 1151-52. Thus, Hasan argued that under section 2244(d)(1)(D) the limitations period did not begin to run until December 1996 — rather than the AEDPA's April 24, 1996 effective date — and was tolled during the pendency of his state petition under section 2244(d)(2), making his federal petition timely by approximately seven months. See id. at 1153, 1155 n. 4. The Ninth Circuit did not adopt Hasan's version of when the limitations clock began ticking. See id. Instead, the panel remanded to the district court to determine if Hasan could have, with the exercise of due diligence, discovered the factual predicate for both of theStrickland elements of his ineffective assistance claim at any time before May 24, 1996. Id. If so, Hasan's claim would still have been untimely under section 2244(d)(1)(D). See id.
The Ninth Circuit opinion does not expressly indicate which claims were raised in Hasan's state petition. However, the fact that Hasan's first federal petition was dismissed for failure to exhaust state remedies, while the second petition was allowed to proceed on the basis that state remedies were exhausted, strongly suggests that the ineffective assistance claim was raised and decided on the merits in Hasan's state petition. See Hasan, 254 F.3d at 1152-53. Moreover, the fact that Hasan filed the state petition approximately four months after his December 1996 discovery, and obtained an affidavit confirming that information only two days after the filing of his state petition is further proof that he pursued the ineffective assistance claim in his state petition. See id.
The present case is distinguishable from Hasan in that Hasan claimed to have discovered the basis of his ineffective assistance claim in December 1996, well before filing his state petition on April 22, 1997. Petitioner, on the other hand, makes the unusual argument of having discovered the factual predicate of his claim on November 30, 1998, one month after he had already presented that claim to the state court in his second Petition for Post-Conviction Relief filed on October 29, 1998. Answer (doc. # 7), Ex. F at 13-14, 23-24; Answer (doc. # 7), Ex. H at 3-4, 6. The information gleaned by Petitioner's private investigator may have fleshed out the details of the claim he had already presented. However, it cannot be said that the information obtained on November 30, 1998, simply by sharpening the facts upon which the issues in his case would be decided, actually established the factual predicate of the claim he already knew to raise and investigate. Because Petitioner's ineffective assistance claim had already been presented to the state court, and was subsequently decided on the merits, it would be incongruous to hold that the factual predicate of the identical claim in Petitioner's federal petition became known at a later date based on the discovery obtained during the pendency of his state petition. As such, Petitioner cannot credibly deny having understood the factual predicate of his ineffective assistance claim at some time prior to raising that claim in his second state petition.
The question remains how long before the filing of his second state petition could Petitioner, through the exercise of due diligence, have discovered the factual predicate of his ineffective assistance claim. In this regard, Petitioner takes exception to the Magistrate Judge's conclusion that had he sought collateral relief prior to April 24, 1997 "he could have obtained the same 'disclosure' that the prosecutor maintained a relationship with a potential trial witness." RR (doc. # 15) at 10; Objections (doc. # 23) at 7. However, the fact that Petitioner learned of the prosecutor's relationship with Jordan while investigating his already pending state petition demonstrates that knowledge of that relationship was not a factual predicate of his claim.
For all that appears, Petitioner should have perceived the basis of his ineffective assistance claim as early as trial when counsel told him "that he and [the prosecutor] had discussed Jordan and that they had decided that she 'had been through enough,' [and] therefore he would not call her as a witness at trial." Errata (doc. # 24) at 2 n. 1; accord Answer (doc. # 7), Ex. F at 13-14, 23-24; Answer (doc. # 7), Ex. H at 3-4, 6. At that time, Petitioner would have been aware of the allegedly deficient performance of counsel based on his decision not to call Jordan as a witness. Moreover, Petitioner would have understood the potential for prejudice stemming from the absence of Jordan's testimony as well as the appearance of collusion based on trial counsel's admission that his decision not to call Jordan was reached in consultation with the prosecutor. See Answer (doc. # 7), Ex. F at 13-14, 23-24. Thus, the facts known at trial were sufficient to place Petitioner on notice as to both Strickland elements of his ineffective assistance claim. See Hasan, 254 F.3d at 1155.
Even if additional facts were required to understand the basis of his ineffective assistance claim, Petitioner fails to demonstrate any diligence in discovering those facts during the enormous lapse in time between his trial in 1981 and his hiring of the private investigator in 1998. Instead, he has relied only on the argument that the information discovered in November 1998 established the factual predicate of his claim.
In sum, Petitioner has failed to establish any basis under section 2244(d)(1)(D) to find that the statute began to run on his claim at any time after April 24, 1996. Furthermore, because he had allowed the one-year limitations period to elapse before filing his second state petition on October 29, 1998, his federal petition is time-barred under the AEDPA. See Ferguson, 321 F.3d at 823.
Petitioner's ineffective assistance claim, even if not time-barred, would be denied on the merits. Because this claim was adjudicated on the merits by the state court, the AEDPA prohibits this Court from granting relief unless the state court's adjudication of Petitioner's claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
For purposes of section 2254(d)(1), "the rule set forth in Strickland qualifies as 'clearly established Federal law, as determined by the Supreme Court of the United States.'"Williams, 529 U.S. at 391. Under the Strickland test for ineffective assistance of counsel, the petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance actually prejudiced the defense. Strickland, 466 U.S. at 687-91;Hasan, 254 F.3d at 1154.
In this case, Petitioner's claim of ineffective assistance based on trial counsel's failure to call Jordan as a witness was adjudicated on the merits in the state court. The order denying Petitioner's second Petition for Post-Conviction Relief squarely addresses the issue of defense counsel's failure to call Jordan as well as Petitioner's "allegation of collusion between the prosecutor and defense counsel." Answer (doc. # 7), Ex. H at 3-4, 6. Focusing on Jordan's prospective testimony, the court noted that the testimony anticipated by Petitioner would have been inconsistent with an affidavit already supplied by Jordan and, in any event, would not have been material or relevant to the defenses raised by Petitioner at his trial. Id. at 4. In addition, the court concluded that Petitioner had failed to establish his allegation of collusion between the prosecutor and defense counsel. Id. at 6. Under the circumstances, the court's conclusions that counsel was not incompetent and that Petitioner was not prejudiced by counsel's conduct were not contrary to, or an unreasonable application of, Strickland. Therefore, even if not time-barred, Petitioner's claim of ineffective assistance would be denied on the merits pursuant to section 2254(d).
The court held that Petitioner's claims of ineffective assistance with respect to trial counsel were procedurally defaulted due to Petitioner's failure to assert these claims on direct appeal or in his first Petition for Post-Conviction Relief. Answer (doc. # 7, Ex. H at 2. Claims found by a state court to be procedurally defaulted, as in the present case, are "adjudicated on the merits" for purposes of section 2254(d).See Medellin v. Dretke, 544 U.S. 660, ___, 125 S. Ct. 2088, 2091 161 L. Ed. 2d 982, 988 (2005). In this case, the state court not only found the claims procedurally defaulted, but went on to analyze the claims on their merits to determine whether appellate counsel had rendered ineffective assistance by failing to assert the claims regarding trial counsel.
2. Equitable Tolling
Petitioner contends that the AEDPA's statute of limitations should be equitably tolled because (1) post-conviction counsel led him to believe that a Notice of Post-Conviction Relief had been filed in 1996 and (2) ADOC's replacement of its prison law libraries with contract paralegals constituted an impediment to the filing of his federal application created by State action in violation of the Constitution of the United States. For the reasons set forth by the Magistrate Judge, see RR (doc. # 15) at 10-13, as well as the reasons explained more fully below, the Court rejects both arguments as unmeritorious.
In a recent case, the Supreme Court deliberately avoided deciding whether the AEDPA's statute of limitations may be equitably tolled. Pace v. DiGuglielmo, 544 U.S. 408, ___, 125 S. Ct. 1807, 1815 n. 8, 161 L. Ed. 2d 669, 679 n. 8 (2005) (Rehnquist, C.J.). However, because the parties had argued on the basis that it could, the Court assumed that equitable tolling applies and observed that the proponent must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Id. at 1814, 1815 n. 8 (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)); accord Brambles v. Duncan, 412 F.3d 1066, 1069-70 (9th Cir. 2005) ("The one-year statute of limitations prescribed in the AEDPA may be equitably tolled if 'extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'") (quoting Miles, 187 F.3d at 1107).
In Pace, the Supreme Court affirmed the decision of the Third Circuit to reverse the district court's allowance of equitable tolling, finding that the petitioner had not been diligent in pursuing his claims. See Pace, 125 S. Ct. at 1815. The Court noted that although the petitioner's claims were available in 1986 and 1991, he "waited years, without any valid justification" to assert those claims in an untimely state petition. See id. at 1810, 1815. Because the petitioner "[sat] on his rights for years before he filed his [state] petition" and "also sat on them for five more months after his [state] proceedings became final before deciding to seek relief in federal court," the Court concluded that the petitioner's lack of diligence precluded equitable relief. Id. at 1815; see also McQuiddy v. Ware, 87 U.S. (20 Wall.) 14, 19 (1874) ("Equity always refuses to interfere where there has been gross laches in the prosecution of rights").
The instant case presents even longer delays than those inPace. Like Pace, Petitioner filed his second state petition long after the claims asserted had been available to him. See Pace, 125 S. Ct. at 1810. Petitioner's claims, including his claim of ineffective assistance based on counsel's failure to call Jordan, were available to him as early as 1983 and 1985, the years in which his sentences became final for the first-degree murder and second-degree murder convictions. Even accepting Petitioner's account of how his Notice of Post Conviction Relief was filed in 1996, there is no explanation for the delay of more than ten years before his decision to pursue his claims. Petitioner not only sat on his rights for ten years before deciding to seek relief in state court, but sat on them for six more months after his state post-conviction proceedings became final before deciding to seek relief in federal court. The Supreme Court found Pace ineligible for equitable tolling based on five years of delay in filing his state petition, followed by five months of delay in filing his federal petition. Id. at 1815. By the same principle, this Court finds that Petitioner's unexplained and lengthier delay constitutes gross laches and exhibits a lack of diligence that makes equitable tolling inappropriate in this case.
IV. CONCLUSION
The Court adopts the reasoning and conclusions of the RR (doc. # 15) in their entirety. For those reasons, as well as the reasons discussed in this Order, the Court finds that Petitioner's claims are barred by the AEDPA's statute of limitations, that Petitioner is not entitled to equitable tolling, and neither section 2244(d)(2) nor section 2244(d)(1)(D) provides a basis to find any of his claims timely.
IT IS THEREFORE ORDERED that the Magistrate Judge's Report and Recommendation (doc. # 15) is ADOPTED. . . .
IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (doc. # 1) is DENIED.