Opinion
CV-21-01470-PHX-SRB (ESW) CR-11-00739-PHX-SRB
12-15-2021
Michael Ray Kapp, Defendant/Movant, v. United States of America, Plaintiff/Respondent.
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Michael Ray Kapp's (“Movant”) “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (the “§ 2255 Motion”) (Doc. 1). The Government has filed a Response (Doc. 4), to which Movant has not replied. For the reasons explained herein, it is recommended that the Court dismiss the § 2255 Motion with prejudice as it is untimely.
Citations to “Doc.” are to the docket in CV-21-01470-PHX-SRB (ESW). Citations to “CR Doc.” are to the docket in the underlying criminal case, CR-11-00739-PHX-SRB.
I. BACKGROUND
In March 2012, Movant pled guilty to the following crimes:
i. One count of Possession with Intent to Distribute Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii) (Count 1 of the Superseding Indictment); and
ii. One count of Possession of Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 3 of the Superseding Indictment).
(CR Docs. 48, 69). The Court accepted Movant's guilty pleas. (CR Doc. 68). On November 28, 2012, the Court held a sentencing hearing. (CR Doc. 92). Movant had nineteen criminal history points, placing him in criminal history category VI. (CR Doc. 92 at 4; CR Doc. 127 at 5). Movant also qualified as a career offender in light of his prior drug trafficking convictions. (CR Doc. 92 at 47-51; CR Doc. 127 at 5). The Court sentenced Movant to a total of 210 months in prison. (CR Doc. 68). On January 21, 2014, the Ninth Circuit dismissed Movant's appeal after Movant's appellate counsel filed an Anders brief indicating that there are no grounds for relief and Movant did not file a pro se supplemental brief. (CR Doc. 98-1).
On August 20, 2021, Movant filed the § 2255 Motion. (Doc. 1). As detailed in the Court's Screening Order, Movant raises the following two grounds for relief: “(1) Movant's ‘prior Arizona drug convictions no longer qualify as predicates for career offender designation'; and (2) Movant's ‘counsel was ineffective for not researching which predicates fell within the definition of controlled substance offenses under 4B1.2(h) [of the Sentencing] guidelines.'” (Doc. 3 at 2). The Court required the Government to respond to the § 2255 Motion. (Id. at 2). On November 2, 2021, the Government filed its Response (Doc. 4). Movant did not file a Reply and the time to do so has passed.
The § 2255 Motion (Doc. 1) was docketed by the Clerk of Court on August 24, 2021. The § 2255 Motion contains a certificate of service indicating that Movant placed the document in the prison mailing system on August 20, 2021. (Id. at 10). Pursuant to the prison mailbox rule, the undersigned has used August 20, 2021 as the § 2255 Motion's filing date. See 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.”).
II. DISCUSSION
A. Statute of Limitations
A one-year statute of limitations applies to motions filed under 28 U.S.C. § 2255. Section 2255(f) provides that the one-year limitations period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Here, the Government asserts that pursuant to § 2255(f)(1), the limitations period in this matter commenced on the date Movant's convictions became final. (Doc. 4 at 4). “Finality attaches when [the Supreme] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522, 527 (2003). In this matter, the Ninth Circuit Court of Appeals dismissed Movant's appeal on January 21, 2014. (CR Doc. 98-1). Movant had ninety days, or until Monday, April 21, 2014, to file a petition for a writ of certiorari in the Supreme Court. See Rules of the United States Supreme Court 13.3 (stating that a petition for writ of certiorari is timely when it is filed within 90 days after entry of judgment and that “[t]he time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate.”). Movant did not file a petition for a writ of certiorari with the United States Supreme Court. Movant's convictions thus became final on April 21, 2014.
Movant acknowledges that he filed his § 2255 Motion more than a year after his convictions became final. (Doc. 1 at 9). Movant asserts that the statute of limitations does not bar relief as “[n]ew laws and cases recognized by the Supreme Court and Ninth Circuit have enabled Movant to file this 28 U.S.C. 2255 Motion.” (Id.). Yet as the Government observes in its Response (Doc. 4 at 4), Movant does not argue that a particular United States Supreme Court decision should trigger application of § 2255(f)(3). Instead, Movant “contends that recent Ninth Circuit rulings mean his prior Arizona drug convictions no longer fit the definition of controlled substance offenses and cannot be used to enhance his sentence under 4B1.2(b).” (Doc. 1 at 13). However, only the Supreme Court may “recognize” a new right under § 2255(f)(3). Dodd v. United States, 545 U.S. 353 at 357-59 (2005). (“An applicant has one year from the date on which the right he asserts was initially recognized by this Court.”). The undersigned does not find that § 2255(f)(3) applies. The undersigned finds that the Government correctly asserts that § 2255(f)(1) sets the date that Movant's one-year limitations period began to run.
In United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004), the Ninth Circuit held that equitable tolling applies to proceedings under 28 U.S.C. § 2255. To be entitled to such tolling, Movant must “demonstrate that ‘extraordinary circumstances beyond [his] control [made] it impossible to file a petition on time and the extraordinary circumstances were the cause of his untimeliness.'” Id. at 1197 (quoting Laws v. LaMarque, 351 F.3d 919, 922 (9th Cir. 2003)). Movant does not assert, and there is no indication in the record, that “extraordinary circumstances” existed that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a “prisoner must show that the ‘extraordinary circumstances' were the cause of his untimeliness”). As equitable tolling is unavailable, the undersigned finds that the limitations period commenced on April 22, 2014 and expired on April 21, 2015, rendering the § 2255 Motion to Vacate (Doc. 1) untimely. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (applying the “anniversary method” of Rule 6(a) of the Federal Rules of Civil Procedure to calculate the expiration date of AEDPA's one-year statute of limitations, explaining that “[e]xcluding the day on which Patterson's petition was denied by the Supreme Court [June 19, 1997], as required by Rule 6(a)'s ‘anniversary method,' the one-year [AEDPA] grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998”); United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir.2003) (applying “anniversary method” under Rule 6(a) to determine timeliness of § 2255 motion).
B. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the Untimeliness of the § 2255 Motion
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the “actual innocence gateway” that was applied to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518 (2006) extends to petitions that are time-barred under AEDPA. The “actual innocence gateway” is also referred to as the “Schlup gateway” or the “miscarriage of justice exception.”
Under Schlup, a movant seeking review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324; see also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 133 S.Ct. at 1927 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A movant “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
Movant does not assert a claim of actual innocence. The undersigned recommends that the Court find that Movant cannot pass through the actual innocence/Schlup gateway to excuse the untimeliness of this proceeding. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”).
Moreover, it is unclear “whether the Schlup actual innocence gateway always applies to petitioners who plead guilty.” Smith v. Baldwin, 510 F.3d 1127, 1140 n. 9 (9th Cir. 2007) (“We are aware of a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas. . . . For purposes of our analysis, however, we assume without deciding that the actual innocence gateway is available to [the plea-convicted habeas petitioner].”). Decisions in which the Ninth Circuit or United States Supreme Court have considered gateway claims of actual innocence in a plea context involved subsequent case law that arguably rendered the defendant's acts non-criminal. See, e.g. Bousley v. United States, 523 U.S. 614, 621-23 (1998); Vosgien v. Persson, 742 F.3d 1131, 1134-35 (9th Cir. 2013); United States v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court dismiss the § 2255 Motion (Doc. 1) with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the § 2255 Motion 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 Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).