Opinion
CV 18-00579-PHX-DWL (MHB)
01-29-2019
Ramond Curtis Jackson, Petitioner, v. Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT COURT:
On February 20, 2018, Petitioner Ramond Curtis Jackson, who is confined in the Arizona State Prison, Eyman Complex, Florence, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (hereinafter "habeas petition"). (Doc. 1.) On June 13, 2018, Respondents filed a Limited Answer, and on July 6, 2018, Petitioner filed a Reply. (Docs. 8, 13.)
BACKGROUND
The facts of Petitioner's state criminal case are summarized by the Arizona Court of Appeals as follows:
Defendant was indicted on four counts of sexual conduct with a minor, class 2 felonies and dangerous crimes against children. Defendant was alleged to have engaged in sexual intercourse, oral sexual contact, digital penetration of anus, and digital penetration of vagina with his seven year old step-daughter on August 23, 2007. The jury found defendant guilty of the offenses as charged, and the court imposed presumptive, consecutive sentences of thirty-five years imprisonment on each count.(Doc. 8, Exh. A.)
After he was sentenced, Petitioner filed a Notice of Appeal and requested appointment of counsel. (Doc. 8, Exh. B.) Counsel was appointed and filed an Opening Brief raising one issue, that "[t]he Court failed to declare a mistrial after jurors heard inadmissible information during closing arguments," in violation of the Arizona and United States Constitutions. (Doc. 8, Exh. C at 6.) The Arizona Court of Appeals affirmed in a Memorandum Decision, finding that Petitioner had invited error by his outburst in front of the jury regarding the time he had been in jail awaiting trial and the potential sentence he faced. (Doc. 8, Exh. A at 4.)
The Court of Appeals Mandate issued on July 7, 2016. (Doc. 8, Exh. D.) On August 24, 2016, Petitioner filed a Motion for Expansion of Time to file a petition for review to the Arizona Supreme Court. (Doc. 13, Exh. H.) The trial court granted that motion on September 8, 2016, giving Petitioner until September 30, 2016 to file his petition for review in the Arizona Supreme Court. (Doc. 8, Exh. GG; Doc. 13, Exh. J. at 1.) On September 1, 2016, Petitioner's appellate attorney notified Petitioner that she would not be filing a petition for review on his behalf, as she did not believe there were any meritorious issues to raise. (Doc. 13, Exh. M.) Petitioner did not file a petition for review in the Arizona Supreme Court.
Instead, on October 4, 2016, Petitioner filed a Notice of Post Conviction Relief (hereinafter "PCR"), in which he claims that his failure to file a timely PCR notice on time was without fault on his part. (Doc. 8, Exh. E at 3.) Arizona Rules of Criminal Procedure provided that Petitioner's deadline for filing a PCR notice was 30 days from the issuance of the mandate by the Arizona Court of Appeals, or from the date of the Memorandum Decision. See Ariz.R.Crim. P. 32.4(a). On October 20, 2016, the trial court dismissed Petitioner's PCR proceedings, as untimely:
As Petitioner deposited the Notice for mailing on September 29, 2016 (Doc. 13, Exh. O), that date serves as the operative filing date. See Houston v. Lack, 487 U.S. 266 (1988).
Under Rule 32.4(a) of the Arizona Rules of Criminal Procedure, the Notice of Post-Conviction Relief must be filed within 90 days of the entry of judgment and sentencing, or within 30 days of the issuance of the order and mandate by the appellate court, whichever is later. These dates are clearly
stated in the "Notice of Rights of Review After Conviction and Procedure" form that Defendant received at sentencing. Because the appellate court's mandate issued on July 6, 2016, the deadline for Defendant's Notice of Post-Conviction Relief was August 5, 2016. His Rule 32 proceedings is thus untimely by almost two months.(Doc. 8, Exh. F.)
Nevertheless, the defendant contends that the untimeliness of this Rule 32 proceedings is without fault on his part and he is entitled to relief under Arizona Rule of Criminal Procedure 32.1(f) (Notice at 3). He states that he did not receive the order of mandate until August 20, 2016. According to Defendant, his appellate counsel "was on vacation during the time order of mandate was sent. She didn't mail it to me until she got back on 8-15-16." (Id.) Defendant fails to supply an adequate factual or legal basis to excuse his untimely filing. Rule 32.1(f) affords no relief because it applies when (1) a pleading defendant seeks to file his first Petition for Post-Conviction Relief but has missed the filing deadline through no fault of his own; or (2) a trial defendant seeks a delayed appeal because through no fault of his own the notice of appeal is not timely filed. "Relief pursuant to subsection (f) will continue to be unavailable to all post-conviction relief proceedings not 'of right.'" Ariz. R.Crim.P. 32.1(f) cmt. Because his Rule 32 proceeding is not an of-right proceeding, Defendant is not entitled to relief. See id; Moreno v. Gonzalez, 192 Ariz. 131, 961 P.2d 205 (1998).
In sum, Defendant fails to state a claim for which relief can be granted in an untimely Rule 32 proceeding. The defendant must assert substantive claims supported by specific facts and adequately explain the reasons for their untimely assertion. Ariz.R.Crim.P. 32.2(b). Defendant has failed to meet this standard.
On October 31, 2016, Petitioner filed a Motion/Response to Court Dismissal/Judgment. (Doc. 8, Exh. G.) On November 13, 2016, the trial denied Petitioner's motion as "not factual," as, contrary to Petitioner's assertion, he was not given an extension to file his PCR notice. (Id., Exh. H.) Petitioner then filed another objection to the court's dismissal, again asserting that his PCR was timely as it was filed on September 29, 2014. (Id., Exh. I.) The court took no action on that objection. (Id., Exh. J.) Petitioner filed a motion for reconsideration, and a motion to recuse the trial judge for bias. (Id., Exhs. K, L.) The court denied Petitioner's motion for reconsideration on January 3, 2017. On January 22, 2017, Petitioner filed a motion for an evidentiary hearing, which was denied by the court. (Id., Exhs. N, O.) \\\ \\\ \\\
On January 30, 2017, attorney Wendy Mays filed a Notice to Court re: Untimely PCR, in which she urged the court to reconsider its denial of Petitioner's PCR Notice as untimely because, "from her perspective the untimely filing of the Notice of Appeal [sic] is due to her error, not [Petitioner]'s." (Doc. 8, Exh. P.) Furthermore, she indicated that "at the time the mandate was filed, she was on vacation and out of the country, . . . [and] did not discover the mandate until after she returned and upon its discovery, mailed it to [Petitioner] informing him to request an extension of time due to [] Counsel's oversight." (Id.) On February 22, 2017, Petitioner filed another motion to recuse the trial judge. (Id., Exh. Q.) On March 8, 2017, the trial court denied the request, and "inform[ed] [Petitioner] that he appears to be confused about two separate rulings." (Id., Exh. R.)
One ruling granted him a leave for an extension of time to appeal to the Supreme Court and the other ruling regarding the untimely notice of post-conviction relief.(Id.)
On August 24, 2016, the defendant sought an extension of time to appeal to "Arizona Supreme Court" pursuant to Rule 32.1(f), notwithstanding the fact that the mandate had already issued on July 6, 2016 based upon the fact that no petition for review had been filed. Subsequently, this Court ruled on September 12, 2016 that the defendant could be granted an extension for appeal to the Arizona Supreme Court until September 30, 2016. The defendant thereafter filed no notice of appeal.
The second ruling of this Court filed on October 21, 2016, addressed the defendant's October 4, 2016 rule 32 proceeding. At that point, the mandate had already issued and no notice of appeal had been filed. Pursuant to Moreno v. Gonzalez, 192 Ariz. 131 (1998) rule 32.1(f) cannot be used to expand the time for a rule 32 proceeding after appeal. Rule 32.1(f) only apples to Rule 32 proceedings of right. Therefore, the previous grant of an extension applied to the effort to get the mandate recalled and appeal to the Arizona Supreme Court. The extension was not a license to file a delayed notice of post-conviction relief. Based upon Moreno, the Court had no ability to grant such an extension.
The court finds that apart from the time limits issue, the defendant simply checked the box for ineffective assistance of counsel as a basis for his rule 32 petition. To the extent he is complaining of ineffective assistance of trial counsel, there are no supporting facts.
On March 29, 2017, attorney Wendy Mays filed a second Motion to Reconsider re: Untimely PCR, again asserting that Petitioner should not be punished for her oversights. (Doc. 8, Exh. S.) The court denied the motion. (Id., Exh. T.) On April 11, 2017, Petitioner filed a response to the court's denial of his recusal motion, as well as a motion for change of judge for cause pursuant to rule 10.1. (Id., Exhs. U, V.) On April 28, 2017, the trial court referred Petitioner's motion for change of judge for cause to another judge on the court. (Id., Exh. Z.) On June 20, 2017, another judge on the court issued a ruling denying the motion.
Defendant offers no proof, and does not cite to anything in the record or FTR recordings, suggesting that he was deprived of a fair hearing before an impartial judge. The rulings he identifies, either individually and in aggregate, do not exhibit deep-seeded favoritism or otherwise overcome the presumption against bias.(Id.)
Petitioner sought review in the Arizona Court of Appeals, which the Court dismissed summarily on July 5, 2017. (Doc. 8, Exh. EE.) The Court noted that "the trial court dismissed the petition for post-conviction relief on March 30, 2017, and the petition for review was not filed until June 29, 2017," and was therefore untimely. (Id.)
HABEAS PROCEEDINGS
Petitioner filed his habeas petition on February 20, 2018. (Doc. 1.) In his petition, he raises the following claims pursuant to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution:
Ground One: Ineffective assistance of trial counsel - the cumulative effect of trial counsel's errors and omissions regarding her failure to suppress or contest admission under corpus delecti rule, failure to contest voluntariness of statement or confession, failure to investigate, failure to contest suppressed evidence, failure to contest rules of disclosure violations, failure to impeach witnesses and failure to challenge indictment.
Ground Two: Prosecutorial Misconduct - the state committed prejudicial errors or prosecutorial misconduct during pre-trial or trial proceedings by knowingly suppressing evidence, failing to comply with rules of disclosure, allowing witnesses to knowingly give false testimony, sealing evidence of misconduct and using improper or inaccurate information for indictment.
Ground Three: Judicial Misconduct - the trial court committed cumulative prejudicial error during pre-trial or trial, or post trial proceedings by knowingly
allowing the state to willfully suppress evidence, allowing the state to violate rules of disclosure, granting a court order to be used for misconduct, denying a rule 20 motion, denying motion for mistrial, denying petitioner the right to file a first rule 32, failing to notify petitioner of a ruling and erroneously ruling on a question of law.(Doc. 1 at 6-21.)
Ground Four: Ineffective assistance of appellate counsel - appellate counsel's errors and omissions regarding the right to file a timely notice of post-conviction relief and failing to notify petitioner of a ruling amounted to ineffective assistance by denying defendant the right to due process and access to the courts.
Respondents assert that Petitioner's habeas petition should be dismissed with prejudice, as his claims are time-barred, unexhausted, and procedurally barred without excuse. (Doc. 8.)
LEGAL ANALYSIS
I. Timeliness under the AEDPA.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
"[T]he period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition." Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A state petition that is not filed, however, within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414.
A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004), rev'd on other grounds sub nom; Evans v. Chavis, 546 U.S. 189 (2006). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition is not filed until later. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004). An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See Biggs, 339 F.3d at 1048; see also Cross v. Sisto, 676 F.3d 1172, 1179 (9th Cir. 2012) ("Petitioners are not entitled to statutory tolling between rounds of state [post-conviction] petitions.").
A post-conviction proceeding initiated after the statute of limitations has already run does not re-start the limitations period. See Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
The statute of limitations under AEDPA is subject to equitable tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for equitable tolling to apply, a petitioner must show "'(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way'" and prevented him from filing a timely petition. Id. at 69 (quoting Pace, 544 U.S. at 418). Tolling is appropriate when "'extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule"). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). A Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007). Petitioner's burden to establish she is entitled to equitable tolling is a "heavy" one. Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2014).
A. Statutory Tolling.
On direct review, the court of appeals affirmed Petitioner's convictions on May 19, 2016. Petitioner did not file a petition for review in the Arizona Supreme Court, and therefore his convictions became final 35 days later, on June 23, 2016. See Ariz.R.Crim.P. 32.9(c)(1)(A) (petition for review due no later than 30 days after trial court decision); 1.3 (five days added when service is by mail). Thus, the AEDPA statute of limitations began to run on June 24, 2016, and ended on June 23, 2017. The Arizona Court of Appeals then issued its mandate on July 6, 2016. Petitioner was required to file his PCR Notice no later than 30 days after "the issuance of the order and mandate in the direct appeal, whichever is later." See, Ariz.R.Crim.P. 32.4(a)(2)(D). Petitioner did not file his PCR notice until 90 days later, and on October 20, 2016, the trial court dismissed Petitioner's PCR Notice as untimely. Because Petitioner's PCR Notice was not "properly-filed," he is not entitled to statutory tolling of the time period while that proceedings was pending. "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Pace, 544 U.S. at 414.
Petitioner did not file his habeas petition until February 20, 2018, nearly eight months after the statute of limitations had run. Although Petitioner chose to file numerous pleadings in the state court in an effort to convince the court to reverse its decision on the timeliness of Petitioner's PCR Notice, none of those efforts were successful, and thus, Petitioner is not entitled to any statutory tolling of the time those matters were pending.
B. Equitable Tolling.
Petitioner claims that his attorney's failure to timely provide him with a copy of the appellate court mandate excuses his untimely PCR and therefore entitles him to equitable tolling. Attorney negligence, however, does not meet the high standard of "extraordinary circumstances" to constitute equitable tolling of the AEDPA statute of limitations. See Miranda, 292 F.3d at 1067 (attorney appointed on direct review miscalculated deadline for petitioner to file habeas petition; as a petitioner is not entitled to post-conviction counsel, attorney negligence did not excuse petitioner's late filing). Here, Petitioner's counsel did not mis-advise Petitioner as to the deadline to file his habeas petition; thus, Petitioner's late filing can not be attributed to her actions.
No doubt, Petitioner filed numerous pleadings over the course of more than a year trying to obtain relief in state court. Despite receiving the initial ruling of the trial court denying his PCR Notice on October 20, 2016, he did not file his habeas petition until February 20, 2018. Though he may be able to argue that he has been pursuing his rights in state court diligently, he does not demonstrate that some "extraordinary circumstance" stood in his way and prevented him from timely filing his habeas petition. In addressing a petitioner's claim that he was "trying in good faith to exhaust state remedies," the Supreme Court has cautioned:
A prisoner seeking state postconviction relief might avoid this predicament, however, by filing a "protective" petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.Pace, 544 U.S. at 416 (citing Rhines v. Weber, ante, 544 U.S. at 2798 [] (2005)).
Petitioner also waited several months after the July 5, 2017, denial by the Arizona Court of Appeals of his petition for review (as being untimely filed), to file his habeas petition. In his Reply, he claims that on September 12, 2017, he "sent a motion to the Supreme Court regarding the denied notice of PCR." (Doc. 13 at 9.) Respondents claim that the Arizona Supreme Court docket, however, does not reflect this filing. (Doc. 8 at 4-5.) Even if Petitioner had filed such a motion, his untimely attempts to obtain appellate review of the denial of his PCR Notice, and his decision to wait several months after those filings to initiate habeas proceedings does not excuse his late filing. The extraordinary circumstances a petitioner must show to demonstrate entitlement to equitable tolling must be attributable to an external force rather a petitioner's lack of diligence. See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010) (appellate counsel's failure to perfect an appeal in state proceedings did not prevent petitioner from timely filing federal habeas petition). Petitioner does not demonstrate that he is entitled to equitable tolling.
II. Exhaustion/Procedural Default.
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Proper exhaustion requires a petitioner to have "fairly presented" to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). A claim is only "fairly presented" to the state courts when a petitioner has "alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution." Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) ("If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.").
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both "independent" and "adequate" - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.") (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is "independent" if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is "adequate" if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred"); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) ("[T]he procedural default rule barring consideration of a federal claim 'applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or 'if it is clear that the state court would hold the claim procedurally barred.'") (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989)).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are "independent" of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) ("We have held that Arizona's procedural default rule is regularly followed ["adequate"] in several cases.") (citations omitted), reversed on other grounds, Stewart, 536 U.S. at 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Plaintiff's claims are all procedurally defaulted. He did not present them on direct appeal or in a timely PCR proceedings. Additionally, Petitioner did not file a timely appeal of the court's denial of his PCR Notice to the Arizona Court of Appeals. (Doc. 13, Exh. Q.) Because Petitioner did not fairly present his claims to the state's highest court in a procedurally appropriate manner, his claims are procedurally defaulted. Any attempt now to return to state court would be futile, as Petitioner's claims would be time-barred under Arizona procedural rules.
A. Cause and Prejudice/Fundamental Miscarriage of Justice.
The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the "cause and prejudice" test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. "A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis." Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). The petitioner must also show actual prejudice, not just the possibility of prejudice. U.S. v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007).
Petitioner asserts that his trial attorney's failure to mail the court of appeals' mandate to him after the deadline constitutes cause to excuse his procedural default. Counsel's error however, does not explain Petitioner's waiting another 45 days before filing his PCR Notice. Also, Petitioner is not required to await the filing of the mandate in order to initiate PCR proceedings. Petitioner had the option of filing a petition for review in the Arizona Supreme Court after receiving the court of appeals' memorandum decision, or initiating PCR proceedings. In addition, after receiving the mandate, Petitioner obtained permission from the trial court to file a delayed petition for review in the Arizona Supreme Court (until September 30, 2016), but failed to do so. Petitioner does not establish an "external cause" that prevented him from following the procedural rules of the state court
Petitioner also asserts cause for his untimely filing of his Petition for Review to the Arizona Supreme Court, asserting that he did not receive the trial court's March 30, 2017, decision on his PCR Notice in time. Petitioner provides a document purportedly verified by a prison official demonstrating that he did not receive any legal mail between the date of the decision, March 30 and April 22, 2017. (Doc. 13, Exh. R.) Even if this were the case, the March 30, 2017, order was an order denying a second motion to reconsider the trial court's original October 20, 2016 dismissal of PCR proceedings. And, the order was entered after multiple orders had already been issued denying other motions filed by Petitioner to persuade the court to reconsider its original denial of relief. Petitioner had many opportunities to file a timely petition for review. Furthermore, Petitioner could still have received a copy of the March 30, 2017 order after April 22, 2017, and still file a timely petition for review of that order.
In fact, it appears Petitioner received legal mail from the court on April 22, 2017. (Doc. 13, Exh. U.) --------
Petitioner asserts that a miscarriage of justice will occur if his claims are not heard. Regarding the "miscarriage of justice," the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. The Supreme Court has "explicitly tied the miscarriage of justice exception to the petitioner's innocence" and stressed that habeas corpus petitions advancing a credible claim of actual innocence are "extremely rare." Schlup, 513 U.S. at 314-315 (emphasis added). Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar or expiration of the AEDPA statute of limitations. McQuiggin v. Perkins, 133 S. Ct. 1924, 1925 (2013).
"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." Schlup, 513 U.S. at 327. Schlup requires a petitioner to "support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence - that was not presented at trial." Lee v. Lampert 653 F.3d 929, 938 (9th Cir. 2011). However, "without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Schlup, 513 U.S. at 316. "[T]he miscarriage of justice exception is limited to those extraordinary cases where the petitioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt." Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).
To demonstrate a miscarriage of justice, Petitioner asserts various trial errors: that an expert witness gave conflicting testimony during the trial by first stating that the forensic laboratory did not have enough time to process DNA evidence taken from Petitioner, and then later indicating that the victim's DNA sample was not sufficient to be tested against other samples; that a detective presented contradictory testimony by first saying that the victim's DNA sample was not sufficient for comparison, and then stating that Petitioner's DNA sample was being tested; that the victim testified that she was wearing green shorts on the day of the assault, and that another witness who performed forensic analysis testified that her notes reflected she tested a pair of faded glory stretch pants; that Petitioner's attorney did not impeach the victim with prior inconsistent statements; that a trial witness was not disclosed in advance of trial, who then testified that Petitioner's DNA sample was received but there was not enough time to submit it for testing; and, failure of his counsel to investigate Petitioner's mental health. (Doc. 13 at 12-28.)
Petitioner does not proclaim his actual innocense, or that there was insufficient evidence to convict him as charged. In Petitioner's opening brief on appeal, Petitioner conceded that "[i]n phone recorded conversions with the police, [Petitioner] apologized to [the victim] as well as indicated he was drunk at the time." (Doc. 8, Exh. C at 5.) Further, "'actual innocence' means factual innocence, not mere legal insufficiency" of the evidence. Bousley v. United States, 523 U.S. 614, 623-24 (1998). Here, Petitioner primarily challenges evidence submitted at trial. Merely alleging that evidence is unreliable or insufficient to support a conviction does not prove actual innocence. Id., at 623-24.
CONCLUSION
Having determined that Petitioner's claims in his habeas petition are untimely, and procedurally defaulted without excuse, the Court will recommend that Petitioner's habeas petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason 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), 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file 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 timely to file objections to any factual determinations of the Magistrate Judge will 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 Rule 72, Federal Rules of Civil Procedure.
DATED this 29th day of January, 2019.
/s/_________
Michelle H. Bums
United States Magistrate Judge