Opinion
CV-21-00338-PHX-SPL (ESW)
08-25-2021
William Eugene Gunseth, Petitioner, v. State of Arizona, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge.
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Pending before the Court is William Eugene Gunseth's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition (Doc. 1) as untimely.
I. BACKGROUND
In 2000, a jury sitting in the Superior Court of Arizona in and for Maricopa County found Petitioner guilty on two counts: (i) molestation of a child (Count One) and (ii) sexual conduct with a minor (Count Two). (Doc. 14-1 at 6-9). The trial court sentenced Petitioner to ten years on Count One, followed by a consecutive sentence of 35 years to life imprisonment on Count Two. (Id. at 7-8).
Petitioner filed a direct appeal. On August 16, 2001, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 16-28). Petitioner did not seek further review by the Arizona Supreme Court. (Id. at 30-31).
On November 21, 2019, Petitioner filed a “Petition for State Writ of Habeas Corpus.” (Id. at 33-40). In a minute entry filed on January 23, 2020, the trial court deemed the filing as a Notice of Post-Conviction Relief (“PCR”) and dismissed it as untimely. (Id. at 42-44). Petitioner filed a Motion for Rehearing/Motion for Reconsideration. (Id. at 46-65). The trial court denied the Motion. (Id. at 67-68). Petitioner filed a Notice of Appeal, which the Arizona Court of Appeals dismissed on April 14, 2020. (Id. at 70-73).
On February 25, 2021, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief. The Court required Respondents to answer the Petition. (Doc. 7). In their July 13, 2021 Limited Answer (Doc. 14), Respondents argue that the Petition is untimely. Petitioner filed a Reply (Doc. 15) on August 13, 2021.
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner must file his or her federal habeas petition within one year of 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 petitioner was prevented from filing by the State action;
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the “time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) (“Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases.”). Yet equitable tolling is applicable only “if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. This Proceeding is Untimely
The Arizona Court of Appeals affirmed Petitioner's convictions and sentences on August 16, 2001. (Doc. 14-1 at 16-28). Petitioner had thirty days from August 16, 2001, to petition the Arizona Supreme Court for further review. Ariz. R. Crim. P. 31.21(b)(2)(A). The date thirty days from August 16, 2001 is September 15, 2001. However, because September 15, 2001 was a Saturday, the time period in which to file a petition for review continued until Monday, September 17, 2001. Ariz. R. Crim. P. 1.3(a). Petitioner did not file a Petition for Review in the Arizona Supreme Court. Accordingly, Petitioner's convictions and sentences became final on September 17, 2001. In their Limited Answer (Doc. 14 at 5-6), Respondents assert that the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's 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).
In explaining why Petitioner filed the Petition more than a year after his convictions became final, Petitioner states:
Petitioner's case is analogous or similar in nature to the case of May v. Ryan which was recently decided on appeal by the United States District Court and Ninth Circuit Court of Appeals; the State of Arizona has only recently amended, revised or repealed the relevant laws for its unconstitutionality under House Bill (HB) 2207, both of which is current or took place after the conviction and order of imprisonment in this case in the year of 2000.(Doc. 1 at 12). To the extent Petitioner is arguing that one of the alternate triggering dates for the limitations period set forth in § 2244(d)(1)(B)-(D) applies, the undersigned finds that the argument is without merit. Petitioner cites to no state action that purportedly created an “impediment” to filing a timely habeas petition. 28 U.S.C. § 2244(d)(1)(B). The decision in May is not a new constitutional right recently “recognized by the [United States] Supreme Court” and “made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). Finally, May does not constitute a new “factual predicate” for Petitioner's habeas claims under 28 U.S.C. § 2244(d)(1)(D). See Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th Cir. 2005) (rejecting contention that a new case can be a “factual” predicate, noting that if this was so, “the term ‘factual' would be meaningless”); Keller v. Pringle, 867 F.3d 1072, 1075 (8th Cir. 2017) (rejecting contention that new legal decisions amount to a “factual predicate” under § 2244(d)(1)(D), noting that, “[i]f legal decisions were ‘factual predicates' under § 2244(d)(1)(D), then the limitations in § 2244(d)(1)(C) would be superfluous”); Lo v. Endicott, 506 F.3d 572, 575 (7th Cir. 2007) (“To suggest, as [the petitioner] does, that any decision by any court on any issue could constitute a ‘factual predicate' would swallow up the specifically delineated limitations in § 2244(d)(1)(C).”).
The undersigned finds that the relevant triggering event for purposes of AEDPA's statute of limitations is September 17, 2001-the date on which Petitioner's 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). Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a habeas petition expired on September 17, 2002. See Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (AEDPA's statute of limitations commences upon the expiration of the time for seeking review of petitioner's judgment in a state's highest court); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which Patterson's petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' the one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 . . . .”).
1. Statutory Tolling
Statutory tolling does not apply to collateral review petitions that are not “properly filed.” 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance comply with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th Cir. 2014) (court looked to Nevada state filing requirements in determining whether habeas petitioner's PCR petition was a “properly filed” application that is eligible for tolling). This includes compliance with filing deadlines. Hence, an untimely state collateral review petition is not “properly filed.” Pace, 544 U.S. at 417 (holding that “time limits, no matter their form, are ‘filing' conditions, ” and that a state PCR petition is therefore not “properly filed” if it was rejected by the state court as untimely).
If the collateral review petition was “properly filed, ” then the Court must determine the dates it was “pending.” In Arizona, a PCR petition becomes “pending” as soon as the notice of PCR is filed. Isley v. Ariz. Dep't of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004) (“The language and structure of the Arizona postconviction rules demonstrate that the proceedings begin with the filing of the Notice.”). It remains “pending” until it “has achieved final resolution through the State's post-conviction procedures.” Carey v. Saffold, 536 U.S. 214, 220 (2002). This includes “[t]he time between (1) a lower state court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing Carey, 536 U.S. 214).
Here, Petitioner did not seek post-conviction relief until November 2019. (Doc. 14-1 at 33-44). Once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Because the limitations period had expired in September 2002, Petitioner's November 2019 PCR proceeding had no statutory tolling effect. This federal habeas proceeding is untimely unless equitable tolling applies.
2. Equitable Tolling is Unavailable
Regarding equitable tolling, Petitioner has the burden to show that extraordinary circumstances beyond Petitioner's control made it impossible for him to file a timely federal petition. Roy, 465 F.3d at 969; Gibbs, 767 F.3d at 888 n.8. A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., Johnson v. United States, 544 U.S. 295, 311 (2005). In addition, a petitioner's miscalculation of when the limitations period expired does not constitute an “extraordinary circumstance” warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Alexander v. Schriro, 312 Fed.Appx. 972, 976 (9th Cir. 2009) (“Ultimately [the petitioner] made an incorrect interpretation of the statute and miscalculated the limitations period. This does not amount to an ‘extraordinary circumstance' warranting equitable tolling.”).
There is no indication in the record that the circumstances of Petitioner's incarceration made it “impossible” for Petitioner to timely file a federal habeas petition. Chaffer, 592 F.3d at 1049 (finding that equitable tolling did not apply where there was “no indication in the record that [circumstances] made it ‘impossible' for [prisoner] to file on time”); Wilson v. Bennett, 188 F.Supp.2d 347, 353-54 (S.D.N.Y. 2002) (allegations that the petitioner lacked legal knowledge and had to rely on other prisoners for legal advice and in preparing his papers “cannot justify equitable tolling” as such circumstances are not “extraordinary”). Petitioner has failed to show the existence of “extraordinary circumstances” that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a “prisoner must show that the ‘extraordinary circumstances' were the cause of his untimeliness”). Equitable tolling therefore is unavailable. Accordingly, this federal habeas proceeding is untimely.
B. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the Untimeliness of this Proceeding
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the “actual innocence gateway” to federal habeas review that was applied to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518 (2006) extends to petitions that are time-barred under AEDPA. The “actual innocence gateway” is also referred to as the “Schlup gateway” or the “miscarriage of justice exception.”
Under Schlup, a petitioner seeking federal habeas review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). “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.” Schlup, 513 U.S. at 324; see also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 133 S.Ct. at 1927 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). 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.” McQuiggin, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
To the extent Petitioner may assert the actual innocence/Schlup gateway, Petitioner has not presented any new reliable evidence establishing that he is factually innocent of his conviction. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (“In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him “within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice.'”) (citations omitted); Shumway, 223 F.3d at 990 (“[A] claim of actual innocence must be based on reliable evidence not presented at trial.”); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (“[W]e have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt.”). Because Petitioner has failed to satisfy his burden of producing “new reliable evidence” of his actual innocence, the undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse the untimeliness of this federal habeas proceeding. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”).
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.