Opinion
CV-22-01084-PHX-JJT (DMF)
04-12-2023
Kevin Andrew Isom, Petitioner, v. Mark Brnovich, et al., Respondents.
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 12 at 5)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-22-01084-PHX-JJT (DMF).
Petitioner Kevin Andrew Isom (“Petitioner”), who is incarcerated in the Arizona State Prison Complex in Yuma, Arizona, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”) on June 24, 2022. (Doc. 1) The Petition pertained to Petitioner's convictions of two counts of aggravated assault in Maricopa County Superior Court, case number 2017-110429, and his sentences to concurrent terms of imprisonment, the longer of which was eight years. (Id. at 1) Petitioner was convicted by jury trial of Count 1 and pleaded guilty to Count 2 pursuant to a plea agreement after the jury was unable to reach a verdict regarding Count 2. (Id. at 2) The Petition asserted four grounds: (1) that false testimony was used to obtain the indictment against Petitioner; (2) that false testimony was used to obtain Petitioner's convictions; (3) that the plea agreement was fraudulent because it was altered insofar as the prior felony conviction, and plea agreement term three was “impossible to complete because the ‘[A]llegation' had been proven at trial[;]” and (4) ineffective assistance of counsel. (Id. at 5-10)
This is the date of filing; the Petition does not contain a date that Petitioner placed the Petition in the prison mailing system. (Doc. 1 at 15)
On July 13, 2022, the Court ordered Petitioner to pay the filing fee or submit an application to proceed in forma pauperis within thirty days. (Doc. 4) On July 28, 2022, Petitioner filed a motion for summary judgment. (Doc. 5) The Court denied Petitioner's motion for summary judgment as improper and premature and ordered for a second time that Petitioner pay the filing fee or apply to proceed in forma pauperis. (Docs. 7, 10) On August 22, 2022, Petitioner paid the filing fee. (Doc. 8)
On September 6, 2022, Petitioner moved to amend the Petition to add claims and requested appointment of counsel. (Doc. 9) On September 19, 2022, the Court denied Petitioner's request for appointment of counsel and allowed Petitioner thirty days from the date of the Court's Order to file an amended petition to supersede the original Petition. (Doc. 10)
On October 14, 2022, Petitioner filed an Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Amended Petition”). (Doc. 11) The Amended Petition raises only one ground for relief: that the prosecution violated Petitioner's Fifth and Fourteenth Amendment due process rights “by making representations of a sentencing range contrary to what [Petitioner] reasonably understood to be the sentencing range specified pursuant to the terms of his plea agreement.” (Id. at 5)
The Amended Petition was docketed by the Clerk of Court on October 17, 2022. (Doc. 11) The Amended Petition contains a declaration by Petitioner that he placed the Amended Petition in the prison mailing system on October 14, 2022. (Id. at 15) This Report and Recommendation uses October 14, 2022, as the operative filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
On November 9, 2022, the Court ordered Respondents to answer the Amended Petition within 40 days of the date of service of the Amended Petition. (Doc. 12 at 4)
On November 23, 2022, Petitioner filed a Motion to Release Petitioner Pending Final Decision (“Motion to Release”). (Doc. 15)
On December 16, 2022, the Court extended the deadline for Respondents to answer the Amended Petition and to respond to Petitioner's Motion to Release. (Docs. 17, 18)
On February 2, 2023, Respondents filed a Limited Answer (Doc. 19) and a Response to Petitioner's Motion to Release. (Doc. 20) Petitioner did not file a reply in support of the Amended Petition or his Motion to Release, and the time to do so expired in early March 2023.
For the reasons set forth below, it is recommended that these proceedings be dismissed with prejudice as untimely, the Clerk of Court be directed to terminate this matter, and a certificate of appealability be denied. It is further recommended that Petitioner's Motion to Release Petitioner Pending Final Decision (Doc. 15) be denied.
I. BACKGROUND
A. Petitioner's Charges, Convictions, and Sentences
In its memorandum decision affirming Petitioner's convictions and sentences, the Arizona Court of Appeals summarized the events and procedural history of Petitioner's criminal convictions in Maricopa County Superior Court case CR2017-110429, on which Petitioner's ground for relief in the Amended Petition is based:
On March 5, 2017, Mesa police officer Matthew Gonzales was patrolling a parking structure as part of a trespassing sweep. He observed [Petitioner] lying under a car, and he ordered [Petitioner] to come out and sit down. Officer Gonzales asked [Petitioner] to identify himself. During the conversation, [Petitioner] stood up and attempted to run away from Officer Gonzales. Officer Gonzales pursued him with his Taser drawn and tackled him to the ground. During the struggle [Petitioner] reached for the Taser, which had fallen to the ground, but Officer Gonzales was able to push it out of the way. Officer Gonzales then felt a pressure on his hip, which he believed was [Petitioner] reaching for his firearm. Officer Gonzales maneuvered himself so to move the gun out of [Petitioner's] reach. Officer Gonzales was able to subdue [Petitioner] until two other officers arrived on the scene, at which point he placed [Petitioner] under arrest.
The state charged [Petitioner] with one count of aggravated assault for attempting to exercise control over Officer Gonzales's Taser, and one count of aggravated assault for attempting to exercise control over Officer Gonzales's firearm. The jury convicted [Petitioner] on the first count, finding that [Petitioner] was on felony probation at the time of the offense. [Petitioner] subsequently pleaded guilty to the second count, and also admitted for purposes of sentencing to having one prior felony conviction. The trial court sentenced [Petitioner] to concurrent terms of 2.25 years' imprisonment for count 1 and 8 years' imprisonment for count 2, with credit for 318 days of presentence incarceration.(Doc. 19-1 at 99-100) Petitioner was represented by appointed counsel Tiffany Wood and Julie Rose during trial court proceedings. (See id. at 17-22, 61-64, 68-70)
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
The superior court's record reflects that the grand jury indicted Petitioner with two crimes: one count of aggravated assault, a class 5 felony (Count 1), and one count of aggravated assault, a class 3 felony (Count 2). (Id. at 14-15) Following a jury trial, a jury found Petitioner guilty as to Count 1 and found that the state had proven beyond a reasonable doubt Petitioner was on felony probation at the time of the offense. (Id. at 1921, 24, 28; Doc. 19-2 at 184) The jury did not reach a verdict on Count 2. (Doc. 19-1 at 26; Doc. 19-2 at 184)
Following trial, the state offered Petitioner a plea agreement as to Count 2. (Doc. 19-1 at 30-32, 34-36) On December 15, 2017, the trial court held a settlement conference to determine whether Petitioner wished to accept the plea agreement. (Id. at 34-36; Doc. 19-2 at 207-42) The trial court informed Petitioner of the terms of the plea agreement and took a recess for Petitioner to confer with appointed counsel Tiffany Wood. (Doc. 19-2 at 209-18) On the same date, Petitioner chose to accept the plea agreement whereby he would plead guilty as to Count 2, and the trial court conducted a change of plea hearing. (Id. at 225-41) Petitioner initialed next to each term of the plea agreement and signed the plea agreement. (Doc. 19-1 at 30-32) Among other terms, the plea agreement expressly stated that Petitioner “shall be sentenced to the Arizona Department of Corrections for no less than the presumptive term of 6.5 years in the Department of Corrections.” (Id. at 30)
At the change of plea colloquy, Petitioner agreed that he was pleading guilty to Count 2 with one prior felony conviction. (Id. at 226-27) Pursuant to the terms of the plea agreement, the trial judge informed Petitioner that Count 2 called for a presumptive sentence of 6.5 years, a minimum sentence of 4.5 years, a mitigated sentence of 3.25 years, a maximum sentence of 13 years, and an aggravated sentence of 16.25 years. (Id. at 228) The trial judge stated that Petitioner would be sentenced for no less than the presumptive term of 6.5 years, to run concurrently with Petitioner's sentence for Count 1. (Id. at 229) The trial court informed Petitioner that he would be giving up certain rights due to pleading guilty (id. at 232-34), and after acknowledging that he would be giving up these rights, Petitioner proceeded to plead guilty. (Id. at 234) Although the parties initially alleged one prior felony conviction of misconduct involving weapons, a class 5 felony committed on March 19, 2014, the parties changed the alleged prior felony conviction to a separate offense of misconduct involving weapons, a class 4 felony committed on June 3, 2014, due to complexities in the procedural posture of the class 5 prior felony conviction. (Id. at 23436) Petitioner confirmed that he was pleading guilty to Count 2 with one prior felony conviction of misconduct involving weapons, a class 4 felony committed on June 3, 2014 (id. at 237), and Petitioner agreed with the factual basis for Count 2 placed on the record by appointed counsel (id. at 237-39). The trial court found that Petitioner knowingly, voluntarily, and intelligently entered into the guilty plea. (Id. at 239)
On January 12, 2018, Petitioner filed a “Petition for Writ of Habeas Corpus” in the superior court, arguing that Petitioner was illegally confined in the Fourth Avenue Jail “because the jail used a ficticious [sic] name to book [Petitioner] making it impossible for family to locate [Petitioner] and post bond.” (Id. at 38-59) The record before the Court at this time does not reflect a superior court ruling on Petitioner's filing. (See id. at 8)
On January 18, 2018, the trial court sentenced Petitioner as to both counts. (Doc. 19-1 at 61-64; Doc. 19-2 at 244-64) The trial court determined that Petitioner's prior felony convictions, behavior, and disregard for law enforcement constituted aggravating circumstances, but Petitioner's acceptance of responsibility constituted mitigating circumstances. (Doc. 19-2 at 259) As to Count 1, the trial court sentenced Petitioner to a presumptive term of 2.25 years' imprisonment with 318 days of presentence incarceration credit. (Id.) As to Count 2, the trial court sentenced Petitioner to an aggravated sentence of eight years' imprisonment with 318 days of presentence incarceration credit. (Id. at 25960) Petitioner's sentences for Counts 1 and 2 were ordered to run concurrently. (Id. at 260) The trial court explained that Petitioner had the right to appeal as to Count 1 and had the right to petition for post-conviction relief (“PCR”) as to Count 2. (Id. at 262-63) The trial court notified Petitioner of the timeframe to file a notice of appeal as to Count 1 and of the timeframe to file a PCR notice as to Count 2. (Id.) Further, Petitioner signed and acknowledged his receipt of a Notice of Rights of Review after Conviction and Procedure form which set forth the same timeframes. (Doc. 19-1 at 66)
B. Petitioner's Direct Appeal
Through appointed counsel Kerri Chamberlin of the Office of the Legal Advocate, Petitioner timely filed a notice of appeal as to Count 1. (Doc. 19-1 at 68-70) Appointed counsel Dawnese C. Hustad of the Office of the Legal Advocate filed an opening brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which appointed counsel asserted that she found no arguable, non-frivolous question of law, requested that the Court search the record for fundamental error, and requested leave for Petitioner to file a supplemental brief in propria persona. (Id. at 75-90) The court of appeals granted Petitioner leave to file a pro se supplemental brief. (See id. at 73)
On December 13, 2018, Petitioner filed a pro se supplemental brief. (Id. at 92-96) Petitioner argued that the state courts held no authority or jurisdiction over Petitioner; that trial counsel should have argued for diminished capacity; that the plea agreement was invalid because prior convictions were used as aggravating factors despite the plea stating that no priors would be alleged; that Petitioner would not have accepted the plea agreement if he knew he would only be sentenced to 2.25 years' imprisonment on Count 1; and that Stephanie Smith, who testified at trial regarding whether Petitioner was on felony probation at the time of the offense, was not Petitioner's probation officer. (Id.)
On April 16, 2019, the Arizona Court of Appeals affirmed Petitioner's conviction:
[Petitioner] also filed a supplemental brief in which he alleged, among other things, ineffective assistance of counsel. We will not consider a claim of ineffective assistance of counsel in an Anders appeal. See State v. Chavez, 243 Ariz. 313, 318, ¶ 21, n.7 (App. 2017).
We have read and considered [Petitioner's] Anders brief and supplemental brief, and we have searched the entire record for reversible error. See Leon, 104 Ariz. at 300. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory limits. Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85 (1984), [Petitioner's] counsel's obligations in this appeal are at an end. [Petitioner] has thirty days from the date of this decision in which to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.(Doc. 19-1 at 98-100)
Petitioner did not file a petition for review or a motion for reconsideration. (Id. at 102) On May 29, 2019, the court of appeals issued its mandate. (Id. at 102-06)
On June 3, 2019, Petitioner filed a motion requesting withdrawal of the plea agreement (id. at 108), and the court of appeals denied Petitioner's motion on June 20, 2019. (Id. at 110) On December 31, 2019, Petitioner filed a “Motion for Delayed Reconsideration,” asserting that evidence was neglected and requesting transcripts for a pretrial conference held on November 1, 2017. (Id. at 112) The court of appeals issued an order stating that it would take no action on Petitioner's December 31, 2019, motion for reconsideration because Petitioner filed his motion seven months after the court of appeals' mandate, which closed the matter. (Id. at 114)
C. Petitioner's PCR Actions
1. First PCR proceeding
On March 27, 2018, Petitioner filed a PCR notice in the superior court. (Id. at 12023) Upon Petitioner's request, the superior court appointed counsel Amy Bain to represent Petitioner. (Id. at 125-27) Appointed counsel Amy Bain moved to dismiss Petitioner's first PCR action due to Petitioner's pending direct appeal in the court of appeals and requested leave to file a new PCR notice after the court of appeals issued a mandate in Petitioner's direct appeal. (Id. at 131-32, 134-36) On October 15, 2018, the superior court dismissed Petitioner's PCR notice with leave to refile within 30 days following the conclusion of Petitioner's direct appeal. (Id. at 138)
On June 19, 2019, Petitioner filed a new PCR notice (“first PCR notice”) and requested appointment of counsel. (Id. at 140-44) On June 20, 2019, Petitioner filed a pro se PCR petition and checked boxes that he was raising claims that his guilty plea was unlawfully induced, that newly discovered material existed, and that the police officer's testimony in his case did not support the charges against Petitioner. (Id. at 146-49) On July 15, 2019, the superior court appointed counsel Alison Stavris to represent Petitioner. (Id. at 151-52)
On November 1, 2019, appointed counsel Alison Stavris filed a notice of completion of post-conviction review, asserted that she found no colorable claims to raise in PCR proceedings, and requested an extension of time for Petitioner to file a pro se PCR petition. (Id. at 156-60) The superior court ordered counsel Alison Stavris to remain in an advisory capacity and extended the time for Petitioner to file a pro se PCR petition. (Id. at 162-63, 165-66)
On March 2, 2020, Petitioner filed a pro se PCR petition. (Id. at 170-74) Petitioner checked a box that he was raising a claim that the state had unconstitutionally used perjured testimony. (Id. at 171) In support of this claim, Petitioner asserted that Stephanie Smith was not his probation officer, resulting in perjured testimony, and that the adult probation department did not respond to Petitioner's requests to verify which probation officer was assigned to Petitioner on March 3, 2017. (Id. at 173)
After the state filed a response (id. at 176-83), Petitioner filed a request for an informal conference (id. at 185-86). On September 9, 2020, Petitioner filed a “First Amended Petition,” in which Petitioner asserted that he was innocent, asserted that the prosecution did not meet its burden of proof beyond a reasonable doubt, and requested that Count 2 be dismissed. (Id. at 188-90) On October 22, 2020, Petitioner filed a “Notice of Submission of Rule 32 PCR.” (Id. at 192)
On November 10, 2020, the superior court dismissed Petitioner's PCR petition. (Id. at 194-95) The superior court stated that Petitioner's claim regarding probation officer Stephanie Smith was precluded pursuant to Ariz. R. Crim. P. 32.2(a)(2) due to Petitioner raising this claim in a previous appeal in the court of appeals. (Id. at 195) Nevertheless, the superior court determined that the record did not support Petitioner's claim and that Petitioner had not stated a colorable claim for relief. (Id.)
On December 29, 2020, Petitioner filed a motion for rehearing in the superior court. (Id. at 197-201) On April 23, 2021, the superior court denied Petitioner's motion for rehearing as untimely, finding that Petitioner did not request rehearing within 15 days following the dismissal of Petitioner's PCR petition as required by Ariz. R. Crim. P. 32.14(a) and 33.14(a). (Id. at 203) The record does not reflect that Petitioner filed a petition for review in the court of appeals or Arizona Supreme Court. (See id. at 5-6)
2. Second and third PCR proceedings
On February 9, 2021, Petitioner filed a second pro se PCR notice (“second PCR notice”) pursuant to Ariz. R. Crim. P. 32 in the superior court. (Id. at 205-16) In his second PCR notice, Petitioner asserted that he was immune from criminal charges, that the trial court improperly suppressed evidence, that Stephanie Smith was not his probation officer, that “clause three” of Petitioner's plea agreement “presents in [sic] impossibility[,]” and that the state courts had committed several errors. (Id. at 208-12) On February 11, 2021, Petitioner filed an “Addendum to Petition for Relief and Motion for Rehearing” (id. at 24346) and a filing titled “Court Failure to Effect Service” requesting that Petitioner be released due to the court's alleged failure to respond to Petitioner's “Petition for Relief” and motion for rehearing (id. at 248).
Petitioner's second PCR notice appears more than once in the record. (See also Doc. 19-1 at 218-41)
On March 2, 2021, Petitioner filed a third pro se PCR notice (“third PCR notice”) and checked boxes that he was raising a claim pursuant to Ariz. R. Crim. P. 33.1(a) as well as a claim of newly discovered material facts and a claim that clear and convincing evidence existed such that no reasonable fact-finder could find Petitioner guilty beyond a reasonable doubt. (Id. at 250-52) On the same date, Petitioner filed an “Amended Petition for Post Conviction Relief” asserting that Stephanie Smith was not his probation officer and had provided perjured testimony. (Id. at 254-57)
On April 23, 2021, the superior court dismissed Petitioner's second and third PCR proceedings in a combined order, finding that Petitioner “failed to state a claim for which relief can be granted in a successive Rule 33 or Rule 32 proceeding[,]” had failed to present substantive claims, and had failed to adequately explain the reasons for the untimely assertion of the claims in his second and third PCR notices. (Doc. 19-2 at 2-6) The superior court determined that it retained subject matter jurisdiction over Petitioner's felonies; that Petitioner did not show his lack of fault for the untimeliness of his second and third PCR proceedings; that Petitioner's claim regarding perjured testimony was precluded due to previously being raised and was waived due to Petitioner's guilty plea; that Petitioner did not demonstrate innocence by clear and convincing evidence; and that Petitioner did not present newly discovered material facts. (Id. at 3-5) The record does not reflect that Petitioner filed a petition for review in the court of appeals or Arizona Supreme Court. (See Doc. 19-1 at 5)
The superior court also addressed Petitioner's contemporaneous PCR filings as to his conviction for unlawful flight from a law enforcement vehicle in Maricopa County Superior Court case CR2014-112880, which is not at issue in these habeas proceedings.
3. Fourth PCR proceeding
On April 27, 2021, Petitioner initiated his fourth PCR proceeding by filing a pro se PCR petition (“fourth PCR petition”). (Doc. 19-2 at 8-136) In his PCR petition, Petitioner argued that his plea agreement was unconstitutionally obtained, that the state used perjured testimony to obtain Petitioner's convictions, that the state altered the terms of the plea agreement, that Petitioner was innocent of the offenses for which he was convicted, and that Petitioner received ineffective assistance of counsel. (Id. at 12-19)
On September 13, 2021, the superior court dismissed Petitioner's PCR petition as successive, finding that Petitioner had failed to state sufficient claims for relief and had not adequately explained the reasons for his untimely assertion of his claims. (Id. at 138-39)
The superior court determined that Petitioner's Rule 32.1(a) and 33.1(a) claims, namely that his convictions and sentences were unconstitutionally obtained, were waived due to Petitioner's guilty plea and were precluded due to either being previously raised or for Petitioner's failure to raise them in previous PCR proceedings. (Id.) As for Petitioner's Rule 32.1(h) and 33.1(h) claims of innocence, the superior court found that Petitioner had not shown clear and convincing evidence that no reasonable fact-finder would find Petitioner guilty. (Id. at 139) Further, Petitioner's innocence claim was precluded due to being previously raised. (Id.)
On October 4, 2021, Petitioner filed a petition for review in the court of appeals and argued that his plea agreement was invalid due to Petitioner allegedly being forced to sign the plea agreement “after terms were switched at the last minute[.]” (Id. at 143-50) On February 8, 2022, the court of appeals granted review but denied relief, finding that Petitioner had not established that the superior court abused its discretion. (Id. at 152-53) Petitioner did not file a petition for review in the Arizona Supreme Court or a motion for reconsideration, and the court of appeals issued its mandate on March 23, 2022. (Id. at 15559)
4. Fifth PCR proceeding
On August 23, 2022, Petitioner filed a fifth pro se PCR notice (“fifth PCR notice”) in the superior court and checked boxes that he was raising a claim pursuant to Ariz. R. Crim. P. 33.1(a), a claim of newly discovered evidence, and a claim that clear and convincing evidence existed such that no reasonable fact-finder would find Petitioner guilty beyond a reasonable doubt. (Id. at 162-63) Petitioner requested appointment of counsel and asserted that the untimeliness of his Ariz. R. Crim. P. 33.1(a) claim was not Petitioner's fault due to newly discovered facts. (Id. at 163)
On November 1, 2022, the superior court dismissed Petitioner's fifth PCR notice for failure to state any claims for relief and denied Petitioner's request for appointment of counsel. (Id. at 165-67) The superior court found that Petitioner's Rule 32.1(a) and 33.1(a) claims were precluded; that Petitioner had not specified any newly discovered facts; and that Petitioner had not shown clear and convincing evidence that no reasonable fact-finder would find Petitioner guilty beyond a reasonable doubt. (Id.)
The record does not reflect that Petitioner filed a petition for review in the court of appeals or Arizona Supreme Court. (See Doc. 19-1 at 5)
The state court docket in the record only includes entries up to and including Petitioner's August 23, 2022, PCR notice. However, the electronic docket for Maricopa County Superior Court case CR2017-110429 also does not reflect that Petitioner filed a petition for review of the superior court's dismissal: http://www.superiorcourt.maricopa.gov/docket/CrimmalCourtCases/caseInfo.asp?caseNu mber=CR2017-110429 .
II. PETITIONER'S HABEAS CLAIM AND MOTION FOR RELEASE
The Amended Petition raises only one ground for relief: that the prosecution violated Petitioner's Fifth and Fourteenth Amendment due process rights “by making representations of a sentencing range contrary to what [Petitioner] reasonably understood to be the sentencing range specified pursuant to the terms of his plea agreement.” (Doc. 11 at 5) In the sole ground of the Amended Petition, Petitioner asserts that he received an eight-year sentence despite believing that he could only receive a maximum seven-year sentence. (Id.) In the argument section of the Amended Petition, Petitioner asserts that the maximum sentence with no prior felony convictions is seven years and avers that the state “managed to document” two prior felony convictions in the plea agreement by striking out one prior conviction and substituting another despite plea agreement term three barring the state from doing so. (Id. at 16-17)
The plea agreement relates only to Count 2, and therefore the Amended Petition relates only to such count. Nevertheless, timeliness will be evaluated as to both Count 1 and Count 2, as Respondents have done in their Limited Answer. (Doc. 19 at 10-15)
The Petition initiating these proceedings asserted four grounds: (1) that false testimony was used to obtain the indictment against Petitioner; (2) that false testimony was used to obtain Petitioner's convictions; (3) that the plea agreement was fraudulent because it was altered insofar as the prior felony conviction and plea agreement term three was “impossible to complete because the ‘[A]llegation had been proven at trial[;]” and (4) ineffective assistance of counsel. (Doc. 1 at 5-10)
In their Limited Answer, Respondents assert that these proceedings and the Amended Petition are time-barred under 28 U.S.C. § 2244(d)(1)(A) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (Doc. 19 at 10-16) Respondents further argue that neither equitable tolling nor a fundamental miscarriage of justice exception apply to excuse the untimeliness. (Id.) Respondents also assert that Petitioner's ground for relief in the Amended Petition is procedurally defaulted without excuse. (Id. at 16-23)
Petitioner did not file a reply in support of the Amended Petition, and the time to do so expired in early March 2023. (See Doc. 12 at 4)
On November 23, 2022, Petitioner filed a Motion to Release Petitioner Pending Final Decision (“Motion to Release”). (Doc. 15) On February 2, 2023, Respondents filed a Response to Petitioner's Motion to Release. (Doc. 20) Petitioner did not file a reply in support of his Motion to Release, and the time to do so expired in early March 2023.
III. TIMELINESS
A threshold issue for the Court is whether these habeas proceedings are time-barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002).
As discussed below, the Amended Petition does not relate back to the filing of the Petition, the Amended Petition was untimely filed, and neither tolling nor the actual innocence gateway render the Amended Petition timely filed. Further, even if the Amended Petition related back to the filing date of the Petition, as discussed below, these proceedings are still untimely.
A. AEDPA's One Year Limitations Period
1. Applicable Filing Date
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas proceedings because he filed his Petition after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).
Petitioner filed the Petition initiating these proceedings on June 24, 2022, and asserted four grounds for relief: (1) that false testimony was used to obtain the indictment against Petitioner; (2) that false testimony was used to obtain Petitioner's convictions; (3) that the plea agreement was fraudulent because it was altered insofar as the prior felony conviction and plea agreement term three was “impossible to complete because the ‘[A]llegation had been proven at trial[;]” and (4) ineffective assistance of counsel. (Doc. 1 at 5-10)
Upon Petitioner's motion, the Court granted Petitioner leave to file an amended petition and warned:
[a]n amended petition supersedes the original petition. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Any ground for relief that was raised in the original petition and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in an amended petition. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).(Doc. 10 at 3) On October 14, 2022, Petitioner filed his Amended Petition, in which he asserted only one ground for relief: that the prosecution violated his Fifth and Fourteenth Amendment due process rights “by making representations of a sentencing range contrary to what [Petitioner] reasonably understood to be the sentencing range specified pursuant to the terms of his plea agreement.” (Doc. 11 at 5)
See footnote 3, supra.
A habeas petitioner may amend or supplement a petition “as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Pursuant to Fed.R.Civ.P. 15(c), an amended petition will relate back to the date of the original petition when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading[.]” The filing date of an amended petition will not relate back to the filing date of the initial petition “when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005).
Petitioner's claim in the Amended Petition does not relate back to Petitioner's claims asserted in the original Petition. Despite the Court's warning that an amended petition would supersede the original Petition, Petitioner only asserted one ground for relief in the Amended Petition. (Doc. 11) It is not sufficient that Petitioner's ground for relief in the Amended Petition relates to the same trial and conviction as Petitioner's grounds for relief in the original Petition. Mayle, 545 U.S. at 662-63. Petitioner did not challenge the prosecution's representation of the sentencing range in his original Petition. Because Petitioner's ground for relief in the Amended Petition is supported by and arises out of different facts and events than Petitioner's grounds for relief in the original Petition, the date of filing of the Amended Petition will not relate back to the date of filing of the original Petition. Thus, for AEDPA statute of limitations purposes, this Report and Recommendation uses October 14, 2022, the date Petitioner placed the Amended Petition in the prison mailing system, as the applicable filing date for the Amended Petition. See Mayle, 545 U.S. at 664. Nevertheless, as set forth below, even if the Amended Petition related back to the filing date of the Petition, as discussed below, these proceedings are still untimely.
See footnote 3, supra.
2. AEDPA's Start Date
Under AEDPA, there are four possible starting dates for the beginning of its one-year statute of limitations period:
(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.28 U.S.C. § 2244(d)(1). The latest of the applicable possible starting dates is the operative start date. Id.
Because the Amended Petition's claim arises from a final judgment and sentence, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless a later start date applies under 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Here, the record does not present any basis for a later start date pursuant to 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Under 28 U.S.C. § 2244(d)(1)(A), AEDPA's one-year statute of limitations period runs from when the judgment and sentence became “final by the conclusion of direct review or the expiration of the time for seeking such review.”
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may seek review only by collaterally attacking his convictions through PCR proceedings under Ariz. R. Crim. P. 32 (now Rule 33). See Ariz. R. Crim. P. 17.2(3); A.R.S. § 13-4033(B). At the time of Petitioner's sentencing, Rule 32.4(a)(2)(C) required that an of-right PCR notice be filed within 90 days after entry of judgment and sentence. When the Rule 32 (now Rule 33) of-right proceeding concludes or the time for filing such expires, a conviction becomes “final” for purposes of § 2244(d)(1)(A) of AEDPA. Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007); see also A.R.S. § 13-4033(B). When an Arizona petitioner's PCR proceeding is of-right, AEDPA's statute of limitations does not begin to run until the conclusion of review or the expiration of the time for seeking such review. Summers, 481 F.3d at 711, 716-17.
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
3. Statutory tolling
AEDPA expressly provides for statutory tolling of the limitations period when a “properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). This includes compliance with filing deadlines. A state post-conviction relief petition not filed within the state's required time limit is not “properly filed,” and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post-conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414).
A PCR proceeding remains pending pursuant to 28 U.S.C. § 2244(d)(2) until the Arizona Court of Appeals files its mandate. Celaya v. Stewart, 691 F.Supp.2d 1046 (D. Ariz. 2010), aff'd 497 Fed.Appx. 744 (9th Cir. 2012); Wells v. Ryan, No. CV-14-02048-PHX-JJT (BSB), 2015 WL 9918159, at *7-9 (D. Ariz. Aug. 13, 2015), report and recommendation adopted, 2016 WL 319529 (D. Ariz. Jan. 27, 2016).
District of Arizona orders have repeatedly cited with approval the holdings in Celaya and Wells v. Ryan that a PCR petition remains pending until the Arizona Court of Appeals issues its mandate in circumstances in which the Arizona Court of Appeals grants review but denies relief and the PCR petitioner does not seek further review. See Leary v. Shinn, No. CV-18-012633-PHX-PHX-JGZ (EJM), 2021 WL 4503458, at *3 n.4 (D. Ariz. Sept. 30, 2021); Burns v. Ryan, No. CV-19-00262-TUC-SHR (EJM), 2021 WL 1530071, at *5 n.7 (D. Ariz. Apr. 19, 2021), report and recommendation adopted by 2021 WL 1910561 (D. Ariz. May 12, 2021); Tracy v. Shinn, No. CV 19-08074-PHX-JAT (MHB), 2020 WL 6106149, at *4 (D. Ariz. May 19, 2020) (“Petitioner's PCR proceedings were no longer pending when the Arizona Court of Appeals issued its mandate on March 12, 2018.”), report and recommendation adopted by 2020 WL 5793412 (D. Ariz. Sept. 29, 2020); Dixon v. Ryan, No. CV-15-00510-TUC-DCB (BPV) 2018 WL 3215655, at **2-3 (D. Ariz. Apr. 2, 2018), report and recommendation adopted by 2018 WL 3209417 (D. Ariz. June 29, 2018); Sartin v. Ryan, No. CV 14-2276-TUC-RCC (JR), 2017 WL 1323698, at *5 (D. Ariz. Jan. 24, 2017), report and recommendation adopted by 2017 WL 1319745 (D. Ariz. Apr. 5, 2017); see also Bassett v. Ryan, CV-19-8142-PCT-DLR (JFM), 2021 WL 6427668, at *6 (D. Ariz. Dec. 1, 2021) (concluding that A.R.S. § 12-120.24 requires that “where a formal opinion (a decision) has issued and a mandate follows, the issuance of the mandate signals the final resolution of the proceeding for purposes of tolling under 28 U.S.C. § 2244(d)(2)[.]”), report and recommendation adopted by 2022 WL 112195 (D. Ariz. Jan. 12, 2022).
Once the statute of limitations has run, subsequent PCR 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).
4. Analysis of Count 1: AEDPA's limitations period start date pursuant to 28 U.S.C. § 2244(d)(1)(A) and statutory tolling
See footnote 8, supra.
Petitioner commenced a timely direct appeal of his conviction by jury trial and subsequent January 18, 2018, sentence as to Count 1. (Doc. 19-1 at 61-64, 68-70) On April 16, 2019, the court of appeals affirmed Petitioner's conviction as to Count 1. (Id. at 98100) Petitioner did not file a motion for reconsideration in the court of appeals or a petition for review in the Arizona Supreme Court, and the court of appeals issued its mandate on May 29, 2019. (Id. at 102-06) Thus, Petitioner's conviction and sentence as to Count 1 became final on July 3, 2019, when the time to file a petition for review expired. See Ariz. R. Crim. P. 31.19(a) (2008) (providing that a petition for review must be filed within 30 days, unless a motion for reconsideration is filed); Ariz. R. Crim. P. 1.3(a) (2008) (providing that “[w]henever a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and such service is allowed and made by mail, 5 days shall be added to the prescribed period.”) AEDPA's one-year statute of limitations therefore began running on July 4, 2019, unless AEDPA's statute of limitations was statutorily tolled before that time by the timely and proper filing of a PCR proceeding.
Respondents use an erroneous start date for the statute of limitations because Respondents fail to account for the court of appeals' mandate and fail to include five days for service. (Doc. 19 at 12-13) See Ariz. R. Crim. P. 1.3(a).
As to Count 1, AEDPA's one-year limitations period did not begin to run on July 4, 2019, because Petitioner filed a timely and proper first PCR notice on June 19, 2019. (Doc. 19-1 at 140-44) The superior court dismissed Petitioner's first PCR proceedings on November 10, 2020. (Id. at 194-95) Petitioner did not file a petition for review in the Arizona Court of Appeals within 30 days, see Ariz. R. Crim. P. 32.16, or a motion for rehearing within 15 days. See Ariz. R. Crim. P. 32.14. Hence, Petitioner's first PCR proceedings ceased pending as to Count 1 on November 10, 2020.
Respondents assert that AEDPA's one-year limitations period ran for 28 days between May 16, 2019, the date on which Respondents argue Petitioner's conviction and sentence as to Count 1 became final, and June 14, 2019, when Respondents assert that Petitioner timely filed his first PCR notice. (Doc. 19 at 12) However, as noted in footnote 15, supra, Respondents have not accounted for the court of appeals' mandate.
Petitioner's December 29, 2020, motion for rehearing (Doc. 19-1 at 197-201) did not toll AEDPA's limitations period because Petitioner did not file his motion within the appropriate period following the superior court's dismissal of Petitioner's first PCR proceedings.
Thus, as to Count 1, during the pendency of Petitioner's first PCR proceedings through November 10, 2020, AEDPA's one-year limitations period was tolled pursuant to 28 U.S.C. § 2244(d)(2). AEDPA's one-year statute of limitations period therefore commenced to run on November 11, 2020, and the period for Petitioner to file a habeas petition expired on November 12, 2021, because November 11, 2021, was Veteran's Day, which is a federal holiday. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998...”). Petitioner did not file the Amended Petition until October 14, 2022, over eleven months after AEDPA's statute of limitations expired as to Count 1. Even if the Amended Petition's filing date related back to the original Petition, Petitioner did not file the original Petition until June 24, 2022, over seven months after AEDPA's statute of limitations expired.
Although Petitioner initiated second, third, fourth, and fifth PCR proceedings, untimely PCR notices do not statutorily toll AEDPA's limitations period. Pace, 544 U.S. at 414. The superior court dismissed Petitioner's second, third, fourth, and fifth PCR proceedings as successive and determined that Petitioner had not explained his reasons for his untimely assertion of his claims in his second, third, fourth, and fifth PCR proceedings. (Doc. 19-2 at 2-6, 138-39, 165-67) Further, Petitioner's fifth PCR notice, filed in August 2022, was filed after AEDPA's limitations period expired in November 2021 as to Count 1. (Doc. 19-2 at 161-63) A PCR notice filed after the limitations period has expired does not restart the limitations period. See Jiminez, 276 F.3d at 482; Ferguson, 321 F.3d at 823.
Accordingly, unless equitable tolling and/or the actual innocence gateway apply, these habeas proceedings are untimely as to Count 1.
5. Analysis of Count 2: AEDPA's limitations period start date pursuant to 28 U.S.C. § 2244(d)(1)(A) and statutory tolling
Following Petitioner's guilty plea to Count 2 and subsequent sentencing on January 18, 2018 (Doc. 19-1 at 61-64), Petitioner had 90 days, until April 18, 2018, to file a PCR notice in the superior court as to Count 2. Petitioner timely filed his first PCR notice in the superior court on March 27, 2018. (Id. at 120-23) Following the superior court's dismissal of Petitioner's first PCR notice with leave to refile pending the conclusion of Petitioner's direct appeal as to Count 1, Petitioner refiled his PCR notice on June 19, 2019. (Id. at 14044) The superior court dismissed Petitioner's refiled PCR proceedings on November 10, 2020. (Id. at 194-95) Petitioner thereafter had thirty-five days to file a petition for review in the court of appeals, or fifteen days to file a motion for rehearing in the superior court.Although Petitioner filed a motion for rehearing in the superior court on December 29, 2020 (id. at 197-201), the superior court denied Petitioner's motion for rehearing as untimely filed. (Id. at 203) The record does not reflect that Petitioner filed a petition for review in the Arizona Court of Appeals within 30 days after the superior court's dismissal of Petitioner's first PCR proceedings. (See id. at 6) Thus, Petitioner's conviction and sentence as to Count 2 became final on December 15, 2020, when the time to file a petition for review expired. See Summers, 481 F.3d at 711, 716-17.
See Ariz. R. Crim. P. 33.16(a)(1) (providing that petition for review must be filed within 30 days); Ariz. R. Crim. P. 1.3(a) (providing that “[w]henever a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and such service is allowed and made by mail, 5 days shall be added to the prescribed period.”); Ariz. R. Crim. P. 33.14(a) (deadline of 15 days to move for rehearing).
Respondents use an erroneous start date because Respondents fail to include five days for service. (Doc. 19 at 13) See Ariz. R. Crim. P. 1.3(a).
AEDPA's one-year statute of limitations period therefore commenced to run on December 16, 2020, and expired on December 16, 2021. See Patterson, 251 F.3d at 1247. Petitioner did not file his Amended Petition until October 14, 2022, nearly ten months after AEDPA's statute of limitations expired as to Count 2. (Doc. 11) Even if the Amended Petition's filing date related back to the original Petition, Petitioner did not file the original Petition until June 24, 2022, over six months after AEDPA's statute of limitations expired.
Although Petitioner initiated second, third, fourth, and fifth PCR proceedings, untimely PCR notices do not statutorily toll AEDPA's limitations period as to Count 2. Pace, 544 U.S. at 414. The superior court dismissed Petitioner's second, third, fourth, and fifth PCR proceedings as successive and determined that Petitioner had not explained his reasons for his untimely assertion of his claims in his second, third, fourth, and fifth PCR proceedings. (Doc. 19-2 at 2-6, 138-39, 165-67) Further, Petitioner's fifth PCR notice, filed in August 2022, was filed after AEDPA's limitations period expired in December 2021 as to Count 2. (Doc. 19-2 at 161-63) A PCR notice filed after the limitations period has expired does not restart the limitations period. See Jiminez, 276 F.3d at 482; Ferguson, 321 F.3d at 823.
Accordingly, unless equitable tolling and/or the actual innocence gateway apply, these habeas proceedings are untimely as to Count 2.
B. Equitable Tolling
The U.S. Supreme Court has held “that § 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. Id. at 645-46. Petitioner bears the burden of establishing that equitable tolling is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.”).
The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA's limitations period “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner must show “(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way” to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the first prong, Petitioner “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith, 953 F.3d at 59899 (expressly rejecting the “stop-clock” approach to equitable tolling). The second prong is met “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Id. at 600.
“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and quotations omitted). Whether to apply the doctrine of equitable tolling “‘is highly fact-dependent,' and [the petitioner] ‘bears the burden of showing that equitable tolling is appropriate.'” Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable in most cases,” and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted).
In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[E]quitable tolling is available 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 the prisoner's untimeliness.”). A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where “it would have technically been possible for a prisoner to file a petition,” so long as the prisoner “would have likely been unable to do so.”).
A petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry, 448 F.3d at 1154 (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”); see also Ballesteros v. Schriro, 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). A prisoner's “proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
In his Amended Petition, Petitioner does not argue that equitable tolling applies or give any explanation as to the untimely filing of these proceedings. (Doc. 11 at 13-14) Respondents raise the affirmative defense of untimeliness and argue that equitable tolling does not apply. (Doc. 19 at 15-16) Respondents argue that Petitioner has not pursued his rights diligently, including that Petitioner did not petition for review in the court of appeals during the majority of Petitioner's PCR proceedings; Petitioner filed untimely motions for rehearing and reconsideration; Petitioner faced summary dismissal of his PCR proceedings for failure to explain why his claims were untimely raised; and Petitioner did not file a federal habeas petition until months after his convictions and sentences became final. (Id.) Further, Respondents argue that Petitioner has not shown any extraordinary circumstance or external force that prevented Petitioner from timely filing his habeas petition, nor does the record support any extraordinary circumstance or external force. (Id. at 16)
Considering the entire record before the Court, Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented Petitioner from filing a timely petition for habeas corpus. Accordingly, equitable tolling is not appropriate on this record and does not apply here to render these proceedings timely.
A. Actual Innocence
In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the “actual innocence gateway” to federal habeas review that applies 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. See Schlup, 513 U.S. at 329 (petitioner must make a credible showing of “actual innocence” by “persuad[ing] 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.”).
To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). 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, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). “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, 569 U.S. at 399 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). 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. Thompson, 523 U.S. 538, 559 (1998)).
To his Amended Petition, Petitioner attached the superior court's orders dismissing his PCR proceedings (Doc. 11 at 18-24); the court of appeals' decision affirming Petitioner's convictions and sentences on direct appeal (id. at 25-27); Petitioner's petition for review in the court of appeals, filed in his fourth PCR proceedings (id. at 28-30); the court of appeals' February 8, 2022, order granting review but denying relief in Petitioner's third PCR proceedings (id. at 31-32); and Petitioner's plea agreement as to Count 2 in case CR2017-110429 (id. at 33-35). Petitioner's attachments do not constitute “new reliable evidence[,]” Schlup, 513 U.S. at 324, that would likely prevent a jury from convicting Petitioner. See McQuiggin, 569 U.S. at 399. Petitioner does not explain how his attachments are evidence that more likely than not would have prevented a jury from convicting him, nor is such apparent from review of Petitioner's attachments.
Indeed, Petitioner does not argue actual innocence in his Amended Petition, but only argues that the state failed to prove Petitioner's guilt beyond a reasonable doubt because a jury could not reach a verdict on Count 2. (Doc. 11 at 16) Yet, Petitioner pleaded guilty to Count 2. In doing so, Petitioner acknowledged the factual basis and terms of the plea agreement, and the trial court found that Petitioner knowingly, voluntarily, and intelligently entered into the plea agreement. (Doc. 19-2 at 227-39) Petitioner acknowledged that he was giving up certain rights, including the right to have the state prove the charge in Count 2 beyond a reasonable doubt. (Id. at 232-34) Petitioner stated that he understood and wished to plead guilty as to Count 2. (Id. at 234) Under these circumstances, Petitioner cannot establish actual innocence as to Count 2. See United States v. Hernandez, 2020 WL 4349850, at *6 (N.D. Cal. July 29, 2020) (collecting cases) (no actual innocence where § 2255 petitioner admitted to facts in plea agreement); United States v. Jaquez-Diaz, 2009 WL 249430, at *6 (D. Ariz. Feb. 2, 2009) (adopting recommendation that petitioner did not show evidence to overcome admissions of guilt in knowing and voluntary plea agreement and colloquy).
On the record before the Court, Petitioner has not met his burden regarding actual innocence gateway. Thus, the actual innocence gateway provides Petitioner no relief for these untimely proceedings.
B. These Proceedings Are Untimely Under AEDPA
Under applicable law, the October 14, 2022, filing of the Amended Petition was untimely. Further, even if the filing of the Amended Petition related back to the June 2022 filing of the Petition, these proceedings were untimely filed. Neither statutory tolling, equitable tolling, nor the actual innocence gateway renders this matter timely. Therefore, these untimely proceedings should be dismissed with prejudice and terminated.
IV. MOTION FOR RELEASE PENDING FINAL DECISION (DOC. 15)
On November 23, 2022, Petitioner filed a Motion to Release Petitioner Pending Final Decision. (Doc. 15) In his motion, Petitioner requests release and bail pursuant to Federal Rule of Appellate Procedure (“Fed. R. App. P.”) 23. (Id. at 1) Petitioner argues that he received a sentence longer than permitted by his plea agreement and that such a breach of his plea agreement invalidates his sentence. (Id.) Accordingly, Petitioner asserts that release to parole would remedy his allegedly incorrect sentence, because Petitioner would not have to serve the unconstitutional time remaining on his sentence. (Id. at 1-2) Petitioner argues that denial of release would “leave no remedy given the length of time adjudicating his substantial claim[.]” (Id.) Petitioner further asserts that he is a low flight risk and that he has been approved for housing with an entity named “T.L.C.” (Id. at 2)
In response, Respondents argue that Fed. R. App. P. 23 only authorizes an appeals court to grant release pending habeas review. (Doc. 20 at 1-2) Respondents further argue that the Ninth Circuit has not resolved whether the district court has inherent authority to release a prisoner pending habeas review and that even assuming this Court has such authority, Petitioner has not shown that this is an extraordinary case warranting Petitioner's release. (Id. at 2-5) Specifically, Respondents assert that Petitioner's ground for relief in the Amended Petition is not meritorious, is untimely, and is procedurally defaulted; that Petitioner has not shown a deterioration of health, unusual delay, or actual innocence; that Petitioner's eight-year sentence is unlike the short sentences for which courts in other jurisdictions have granted release; and that Petitioner should not benefit from early release when Petitioner delayed filing these proceedings. (Id.)
Petitioner did not reply in support of his motion.
Fed. R. App. P. 23 “establishes the authority of the federal courts to release both successful and unsuccessful habeas petitioners pending appeal” of a district court's decision in a habeas matter. Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987) (challenging state sentence); United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (challenging federal sentence). The Ninth Circuit has not resolved whether Fed. R. App. P. 23 authorizes a district court to release a petitioner pending the district court's decision in 28 U.S.C. § 2254 habeas proceedings. See In re Roe, 257 F.3d 1077, 1079-80 (9th Cir. 2001) (discussing lack of Ninth Circuit precedent providing district court authority to release pending habeas decision, discussing diverging opinions in other circuit, but ultimately declining to resolve the issue).
Even assuming arguendo that this Court has authority under Fed. R. App. 23 to release a habeas petitioner pending resolution of a habeas petition, such authority only extends to “an ‘extraordinary case[] involving special circumstances or a high probability of success.'” Roe, 257 F.3d at 1080 (quoting Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989)). “[M]ere allegations” of serious constitutional violations are not sufficient to warrant release. Id. at 1079-80. Special circumstances may include “a serious deterioration of health while incarcerated, and unusual delay in the appeal process,” Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1987), or circumstances where “the sentence was so short that if bail were denied and the habeas petition were eventually granted, the defendant would already have served the sentence.” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992).
Petitioner does not show that he has a high probability of success on his claim in the Amended Petition, nor does he make in his motion more than “mere allegations” of substantial constitutional violations that would be sufficient to warrant release. See Roe, 257 F.3d at 1080; Williams v. Ryan, 2019 WL 549455, at *3 (D. Ariz. Feb. 12, 2019) (denying bail where petitioner made only mere allegations of serious constitutional violations). Most notably, as discussed above, the Amended Petition was untimely filed. Further, Petitioner's plea agreement provided that Petitioner could be sentenced to a presumptive term of 6.5 years, a maximum sentence of 13 years, or an aggravated sentence of 16.25 years. (Doc. 19-1 at 30) Petitioner verbally acknowledged these terms at the change of plea hearing (Doc. 19-2 at 228-30), signed the plea agreement, and initialed next to each term. (Doc. 19-1 at 30-32) Thus, Petitioner's eight-year sentence is not longer than the sentencing range specified in the plea agreement. As for the use of priors, the plea agreement stated that Petitioner was pleading guilty to Count 2 with one prior felony conviction, and Petitioner signed the plea agreement and initialed next to each term. (Id. at 30) At his change of plea hearing, Petitioner was informed that he was pleading guilty with one prior felony conviction and acknowledged such. (See Doc. 19-2 at 215, 234-37) Although the parties changed which prior felony conviction was alleged in conjunction with Count 2 (id. at 234-37), only one prior felony conviction was ultimately used in the plea agreement. (Doc. 19-1 at 30) Petitioner thus cannot show a high probability of success on his claim that he received a lengthier sentence than expected or that the state improperly alleged additional prior convictions.
Further, Petitioner does not allege a serious deterioration of his health. See Salerno, 878 F.2d at 317. Petitioner's assertion that he is a low flight risk and has been approved for housing at “T.L.C.” also does not constitute special circumstances. See Roe, 257 F.3d at 1081 (petitioner's ability to live with parents pending habeas decision not a special circumstance). Despite Petitioner's allegations that he will serve the unconstitutional portion of his sentence before adjudication of his habeas claims, there is no apparent risk that Petitioner's sentence will expire prior to decision in these habeas proceedings. In Maricopa County case number CR2017-110429, the case underlying the Amended Petition (see Doc. 11 at 1), Petitioner was sentenced on January 18, 2018, to concurrent 2.25- and 8-year terms of imprisonment with 318 days of pre-sentence incarceration credit. (See Id. at 19) Petitioner's sentence is not set to expire until 2024. Petitioner cites Hilton v. Braunskill, 481 U.S. 770, 777-78 (1987), to argue that “the less time that remains on prisoner's sentence, the stronger his interest in release pending further adjudication[.]” (Doc. 15 at 2) However, Hilton addressed the detention of a successful habeas petitioner pending the state's appeal of the district court's decision to a higher court. 481 U.S. at 77778. Hilton is inapplicable at this stage because the Court has not yet rendered decision in these habeas proceedings.
The Arizona Department of Correction Rehabilitation & Reentry inmate search displays Petitioner's projected release date as February 16, 2024: https://corrections.az.gov/pubhc-resources/inmate-datasearch.
Under the circumstances presented in the record before this Court, Petitioner has not demonstrated that this is an extraordinary case warranting Petitioner's release pending decision on the Amended Petition. Because this Court lacks the clear authority to release Petitioner pending a final decision on the Amended Petition, and because Petitioner has not shown extraordinary circumstances warranting release, assuming the Court retains such authority, it is recommended that Petitioner's Motion to Release Petitioner Pending Final Decision (Doc. 15) be denied.
V. CONCLUSION
Based on the above analysis, the October 14, 2022, filing of the Amended Petition was untimely, and neither statutory tolling, equitable tolling, nor the actual innocence gateway apply to render this matter timely filed. Further, even if the filing of the Amended Petition relates back to the June 2022 filing of the Petition, these proceedings are still untimely. Because of the untimeliness, this Report and Recommendation does not reach Respondents' additional argument that Petitioner's single ground for relief in the Amended Petition is procedurally defaulted without excuse.
Given the untimeliness, it is recommended that the Amended Petition (Doc. 11) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter. Further, given the untimeliness and because Petitioner has not shown extraordinary circumstances warranting release, it is further recommended that Petitioner's Motion to Release Petitioner Pending Final Decision (Doc. 15) be denied.
Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in the procedural ruling. Accordingly, to the extent the District Judge adopts this Report and Recommendation, a certificate of appealability should be denied. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE RECOMMENDED that the Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 11) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
IT IS FURTHER RECOMMENDED that Petitioner's Motion to Release Petitioner Pending Final Decision (Doc. 15) be denied.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 11) is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
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) of the Federal Rules of Appellate Procedure 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 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. The parties shall have fourteen days within which to file responses to any 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 determination 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.