Opinion
CV 21-00794 PHX DWL (CDB)
06-30-2022
Michael Keserich, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
ORDER
Camille D. Bibles United States Magistrate Judge
TO THE HONORABLE DOMINIC W. LANZA:
Petitioner Michael Keserich, who proceeds pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents have answered the petition and Keserich filed a reply on May 25, 2022.
I. Background
On June 6, 2012, agents from the Federal Bureau of Investigation received information that graphic sexual images of underage boys had been traced to an email account belonging to the defendant. Investigation revealed numerous email communications between the defendant and an account in Memphis, Tennessee, between September of 2011 and June of 2012, containing sexual pictures of minor children. Specifically, the images depicted two minor males masturbating and masturbating an adult male's penis, an adult male's penis around their faces, an adult male touching both minor children, and an adult male's tongue touching a minor's penis. Using social media, police officers were able to obtain pictures of the defendant and his two children, ages nine and fourteen. The pictures appeared to match the images in emails.
Officers contacted the defendant's wife .... She confirmed that some of the items in the background of the pictures indicated they were taken from
inside of their house .... Mrs. Keserich further identified her children and husband in some of the pictures. She allowed her children to be forensically interviewed, and during the interview, her then ten year old son stated his dad “touched my private.”
The defendant was arrested and taken into custody without incident on June 8, 2012. The defendant requested an attorney and did not answer any questions subsequent to arrest.(ECF No. 11-1 at 11) (Presentence Investigation Report).
A grand jury indictment returned June 14, 2012, charged Keserich with ten counts of sexual exploitation of a minor, four counts of sexual conduct with a minor, and one count of molestation. (ECF No. 11-1 at 3-9).
At the conclusion of a hearing conducted August 26, 2014, Keserich entered a guilty plea pursuant to a written plea agreement (ECF No. 11-1 at 17-20), after being advised by the trial court regarding the range of his possible sentence and the constitutional rights he was waiving by pleading guilty (ECF No. 11-1 at 28, 176-92). The plea agreement provided Keserich would plead guilty to two counts of attempted sexual exploitation of a minor under the age of fifteen, one count of sexual conduct with a minor under the age of fifteen, and one count of attempted molestation of a child under the age of fifteen. (ECF No. 11-1 at 17). The written plea agreement noted the minimum, maximum, and presumptive sentences for each crime. (Id.). The parties stipulated that Keserich would be sentenced to no less than the presumptive term of 20 years' imprisonment pursuant to his conviction for sexual conduct with a minor, and to lifetime probation with sex offender terms pursuant to his conviction on the other four counts to which he was pleading guilty. (ECF No. 11-1 at 18). The plea agreement further provided that, in return for Keserich's guilty pleas, the other ten counts charged in the indictment would be dismissed at sentencing. (Id.). Additionally, the plea agreement provided Keserich had read and understood the entire plea agreement, discussed the plea agreement and its terms and consequences with his attorney, and that he understood the constitutional rights he was waiving by pleading guilty. (ECF No. 11-1 at 19).
At the plea hearing, the trial court affirmed Keserich had read the entire plea agreement, discussed it with his counsel, that he understood what was in the plea agreement, and that he was voluntarily entering a guilty plea. (ECF No. 11-1 at 180). The court reviewed the crimes to which Keserich was pleading guilty, noting all of the crimes
... [are] considered to be non-dangerous, non-repetitive offenses under the criminal code. Typically, Counts 1, 3 and 13 carry with them a sentence in the Department of Corrections of between five and 15 years and the presumptive sentence is ten years. Count 5 carries with it a sentence in the Department of Corrections of between 13 and 27 years and the presumptive sentence is 20 years and that is flat or day-for-day time.(ECF No. 11-1 at 181) (emphasis added). When asked if he understood the “possible range of sentence for these offenses, Keserich responded “Yes, sir.” (ECF No. 11-1 at 182). The court then stated:
Let's talk about what your actual agreement is with the state. That's in paragraph two. You've agreed on Count 5 you will be sentenced to prison for no less than the presumptive term 25 of 20 years. Let's talk about that.
That means when you come for sentencing ...
You're going to be here, and my choice is somewhere between 20 and 27 years. You could get as little as 20, as much as 27. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: That is flat time, correct?
[THE COUNTY ATTORNEY]: Yes, judge.
THE COURT: So it is going to be - those are flat years. So we know on Count 5, the sentence will be somewhere between 20 and 27 years in the Department of Corrections and it will be flat or day-for-day time. ... (ECF No. 11-1 at 182-83).
The court then explained the sentences of lifetime probation, and the requirement that Keserich register as a sex offender. (ECF No. 11-1 at 183-84). When the court asked: “Do you have any questions about what your actual agreement is with the state in paragraph two [with regard to sentencing]?” Keserich responded “No, sir.” (ECF No. 11-1 at 184). Additionally, the court advised Keserich: “Do you understand that once I accept your plea of guilty today, you cannot change your mind and withdraw from this agreement unless you can demonstrate to me that it is necessary to correct a manifest injustice? Do you understand this?” and he replied “Yes, sir.” (ECF No. 11-1 at 185).
Keserich's counsel provided a factual basis for the crimes to which Keserich was pleading guilty (ECF No. 11-1 at 188-89), and the court stated: “you heard what [defense counsel] said. He described certain acts he characterized the state's evidence would show. I am going to ask you more directly: The events that he described, do you admit you committed those acts?” and Keserich responded “Yes.” (ECF No. 11-1 at 190).
More than four months later, on or about January 9, 2015, Keserich requested that his retained counsel withdraw from the case and new counsel be appointed. (ECF No. 111 at 38-39, 41-42). Keserich was found indigent, and a public defender was appointed to represent him at sentencing. (ECF No. 11-1 at 39, 44, 70). A mitigation and sentencing hearing set for March 6, 2015, was continued first to April 17 and then May 29, 2015. (ECF No. 11-1 at 71-3).
Keserich's counsel submitted a mitigation report. (ECF No. 11-1 at 137). Members of Keserich's family, including the victims (his sons), his wife, his mother, his aunt, and his mother-in-law, spoke on his behalf; his wife and his sons did not acknowledge that there was any “proof” of the crimes to which he pled guilty. (ECF No. 11-1 at 44, 151-54, 156). The State asked for a sentence of 27 years' imprisonment. (ECF No. 11-1 at 137).
In arguing for this sentence, the prosecutor stated, inter alia: Now, Mr. Nolan and his law firm did an excellent job in getting a plea offer for this defendant because originally we were not going to make a plea offer; we were going to go to trial, and when we decided to make the plea offer, the plea offer was 35 years and Mr. Nolan was able to talk us down to a range of 20 to 27 which, in my opinion, this defendant deserves a much harsher plea offer but Mr. Nolan's report and the work that he put in was very good, and I put great stock in his opinion and his work and that's why we ended up with this plea offer. (ECF No. 11-1 at 142-43). Additionally, the prosecutor noted that, with regard to the issue of parity, “some of these cases that are cited [in the mitigation report] wherein defendants were treated supposedly much better than Mr. Keserich,” the reporter was “not even getting her facts right.” (ECF No. 11-1 at 143). The prosecutor noted some of the cases cited by the reporter occurred under a different sentencing scheme, and further noted: None of the cases cited by this evaluator involve a father molesting his biological children, not just one, but two, producing pornography of said molest and then distributing it on the internet. Because if you want to pull those cases, and I did it last night, those cases involve plea offers of 35 years flat which he is not getting. (ECF No. 11-1 at 145).
At the sentencing hearing Keserich told the court:
I love my family and I am - I am sorry they have to go through this, and I know that this has been tough on them. ...
I just ask that you give me an opportunity to prove to society and to you and to my family that I can be a better person, and I will do everything that is required of me and more, even if it's not required of me, to become a better person to take care of myself and fix the issues at hand, and I am just - I'm so sorry they have to go through this.
I don't know what else to say, Your Honor. I just ask that you give me some mercy, because I have never been through this before. I have never been through the system. I don't understand a lot of how it works, but I am willing to take responsibility for my actions and I just ask that your sentence is, you know, light and help me get back to society and be a better person. (ECF No. 11-1 at 166-67).
The court then explained the reasons for the sentence it was imposing, including the following:
You pled guilty to four different offenses. Three of them are offenses for which you will serve probation when you get out of prison. One count, Count 5, requires you to go to prison and it is for somewhere between 20 and 27 years which means on your best day, I give you 20; on your worst day, 27.
20 is the presumptive sentence, and the presumptive sentence means that when I sentence someone, I start at the presumptive sentence and then I either increase the sentence if there are more what are called aggravating factors or I usually can lessen the sentence if there are more what are called mitigating factors. Either way, I weigh the factors and decide where I go. There is no science to it. I can't just plug this in and a number comes out. I have got to hear everything about your case. I have got to hear from everyone and then decide what the right number is.
So it is clear to everybody, my range is 20 to 27. Now, the reason my range is 20 to 27, the reason you're going to prison is you have admitted that you committed these offenses, and it's very important to note that, because we have got a very difficult complicated family situation going on here where a lot of people have been hurt and they're still hurting and they're also confused.
You just told me what's most important for you is for your family to heal; that's what you told me. If that's the case, you better own it, because your wife is sitting here telling me I don't know what happened. You better tell her what happened. Your kids are up here telling me nothing happened. You better own it. Because if you don't own it, they're never going to be able to heal.
And so what I am telling you - I am giving you credit for pleading guilty, for accepting some responsibility, but you and I know there is some more out there you need to accept, and if you really care about your kids, you better talk to them and own it. You better talk to your wife and own it. (ECF No. 11-1 at 167-68). The court further stated:
Now, the factors that I consider to decide your sentence: There are aggravating factors here. There's huge aggravating factors. The damage you did to children with what happened is hard to even - you can't quantify it. You can't put a number on it, but you put them in a really bad place, and that is an incredible amount of aggravation and that certainly justifies the state asking for the 27 years. That makes sense.
But there is mitigation here. You haven't been - you have no priors. You had no contact with the criminal justice system and I give you credit for that. You have family support. You clearly had a childhood that has been complicated, and I give you credit for that as well, and I don't go to the top of the scale of 27 years, but I can't get down to 20 because the aggravation is so significant.
And I will tell you I am troubled because your family comes in here and still says we don't believe - we don't know what's happening. What I would expect you to do, if you own it, is to tell them what happened. You haven't done that yet. I hope you do.
From my perspective, on Count 5, when I balance everything, it's something close to the top. I am sentencing you to a term of 25 years in the Department of Corrections to begin from today's date. (ECF No. 11-1 at 170-71).
Keserich was sentenced to a term of 25 years' imprisonment pursuant to his conviction for sexual conduct with a minor under the age of fifteen. (ECF No. 11-1 at 45). Keserich was sentenced to three terms of lifetime probation, with sex offender terms, pursuant to his other convictions. (ECF No. 11-1 at 46-47).
Keserich initiated a timely state action for post-conviction relief on June 30, 2015. (ECF No. 11-1 at 51-52). Keserich was appointed post-conviction counsel, who informed the court they could find no meritorious claims to raise on Keserich's behalf. (ECF No. 111 at 54-55). Keserich filed a pro se petition on July 18, 2016, alleging his trial counsel was ineffective for failing to provide Keserich with sufficient information to make an informed decision on whether to plead guilty or go to trial, and he alleged his sentencing counsel was ineffective for failing to file a motion to withdraw from the plea agreement based on trial counsel's alleged failures. (ECF No. 11-1 at 57-62). Keserich asserted his initial counsel was “unaware of the sentencing range, evidence, and/or state's witnesses;” that counsel “misinformed the defendant about the plea offer;” and that “counsel told [Keserich] that he would not have any aggravating factors and would receive the mitigated sentence of 20 years.” (ECF No. 11-1 at 58). Keserich also alleged that, “when asked by the defendant the time factors of soft, hard, or flat time, the trial attorney stated ‘I don't know.'” (ECF No. 11-1 at 59) (emphasis in original). Keserich stated he “would have went to trial but for counsels' errors.” (Id.). Keserich asserts that counsel's incomplete advice constituted a conflict of interest, and that the conflict, “misrepresentation of sentencing range, [and] time frames of three times more if the defendant did not sign the plea ...,” constituted a basis for withdrawing from his plea agreement. (ECF No. 11-1 at 60). Keserich also stated he was involuntarily “coerced into an unbinding plea agreement, and counsel refused to adhere to defendant's request to file a motion to withdraw a plea that counsel's misrepresentation caused.” (ECF No. 11-1 at 60-61). Keserich further asserted his sentencing counsel “failed to file the requested motion to withdraw [from the plea agreement], and present a claim that the plea was involuntary.” (ECF No. 11-1 at 59).
In an order entered November 29, 2016, the state habeas trial court, which was also the settlement, convicting, and sentencing court, denied the petition for a state writ of habeas corpus. (ECF No. 11-1 at 75-76). The court found Keserich had averred to the court that he understood the terms of the plea agreement, specifically that the plea required a prison term between 20 and 27 years (“he was repeatedly told the sentencing range by the Court at his settlement conference”), that Keserich knew when entering his guilty plea that his prison term would be served as flat time, and that Keserich had averred no other promises were made to him other than those in the written plea agreement. (ECF No. 11-1 at 75). Citing Strickland v. Washington, the court concluded counsel's performance was not deficient and that Keserich had not established prejudice arising from counsel's alleged errors. (ECF No. 11-1 at 75). The court also found there was no basis to allow Keserich to withdraw from the plea agreement and, therefore, that sentencing counsel was not ineffective for refusing to file a motion to withdraw from the plea agreement. (ECF No. 111 at 76).
Keserich did not seek review in the Arizona Court of Appeals. (ECF No. 11-1 at 97). Keserich did file a motion for reconsideration in the post-conviction trial court on December 16, 2016. (ECF No. 11-1 at 78-81). The court denied this motion on December 20, 2016. (ECF No. 11-1 at 83).
On January 26, 2017, two months after the denial of his first post-conviction petition, Keserich filed a second, successive notice of post-conviction relief (ECF No. 111 at 85-87), and a corresponding petition (ECF No. 11-1 at 89-94). Keserich asserted claims of ineffective assistance of trial and sentencing counsel, argued his post-conviction counsel was ineffective for failing to assert his trial counsel's errors, and also argued the trial court erred by denying the claims of ineffective assistance of counsel raised in his first petition. (ECF No. 11-1 at 90).
On January 30, 2017, the Arizona Court of Appeals received a pleading captioned as a “Motion to Stay,” seeking “‘a stay pending the filing of a second or successive petition in the Maricopa County Superior Court.'” (ECF No. 11-1 at 109, 126-27). The motion was signed January 26, 2017, and asked the appellate court to stay the deadline for filing a petition for review regarding the denial of relief in Keserich's first post-conviction action while his second petition was pending. (ECF No. 11-1 at 126). The appellate court forwarded the pleading to the state trial court. (ECF No. 11-1 at 109). There is no indication in the record as to the motion ever being granted or denied.
On May 31, 2017, the state habeas trial court found Keserich's second postconviction petition successive and untimely, and found Keserich's claim of ineffective assistance of post-conviction counsel without merit, and dismissed the petition. (ECF No. 11-1 at 96-99). The court determined Keserich “did intelligently and knowingly enter into the plea agreement, and further, that he had understanding of the sentencing range available and the concepts of calendar or ‘flat' sentencing, of which understanding the defendant repeatedly acknowledged affirmatively.” (ECF No. 11-1 at 98). Citing Rule 32.2(b) of the Arizona Rules of Criminal Procedure, the court concluded: “When a Rule 32 proceeding is untimely and successive, the defendant bears the burden of stating a substantive claim for relief ... Defendant fails to meet this standard.” (ECF No. 11-1 at 98). The court concluded Keserich had “not stated a claim for which Rule 32 can provide relief.”
Keserich sought review of the post-conviction court's denial of his successive petition in Arizona Court of Appeals. (ECF No. 11-1 at 101-08). He asserted the habeas trial court “unreasonably applied clearly established federal law regarding ineffective assistance of counsel, during trial and [his] first Rule 32 of right,” and he alleged claims of “ineffective assistance of counsel during trial, and post conviction relief Rule 32 proceedings.” (ECF No. 11-1 at 102).
In a summary opinion filed January 25, 2018, the appellate court granted review and denied relief, holding the state habeas trial court did not abuse its discretion by dismissing the “second successive petition.” (ECF No. 11-1 at 115-16). Keserich sought reconsideration in the Court of Appeals on February 9, 2018, which was denied on March 2, 2018. (ECF No. 11-1 at 130, 132). Keserich then filed a petition for review in the Arizona Supreme Court, which was summarily denied on July 5, 2018. (ECF No. 11-1 at 118-23, 202). The appellate court's mandate issued September 20, 2018.
Almost three years later, on April 30, 2021, Keserich filed a “Federal Rule 60(b) Motion.” (ECF No. 1). He asked the Court to “accept his federal habeas corpus § 2254 petition as timely filed, due to circumstances that completely hindered his abilities” to timely file the petition. (ECF No. 1 at 1). Keserich, citing but misconstruing the relevance of Rule 60(b)(1), averred he was seeking relief from a “final judgment.” (Id.).
Rule 60(b) provides an avenue for relief from a judgment issued by a federal court, rather than avenue for relief by a federal court from a judgment issued by a state court.
The Court construed the pleading at ECF No. 1 as initiating a § 2254 action, noting the pleading was not on an approved form and that Keserich had not paid the filing fee or applied to proceed in forma pauperis. (ECF No. 3). The Court dismissed the pleading at ECF No. 1 with leave to amend, allowing Keserich thirty (30) days to file an amended petition and to either pay the filing fee or file a motion seeking leave to file in forma pauperis. (Id.). The Court did not reach the issue of whether the action was timely filed, nor did it address any issue or factual allegation.
Keserich filed an amended petition seeking § 2254 relief on June 10, 2021. (ECF No. 4). In the amended petition he alleges the denial of his right to the effective assistance of counsel, arguing his trial counsel failed to give him sufficient information to “accept or reject a favorable plea or the necessary information to proceed to trial.” (ECF No. 4 at 6). Keserich asserts “counsel was unaware of the sentencing range, and the state's evidence, or the state's witnesses.” (Id.). He further asserts his “counsel misinformed [him] during plea negotiations about the time frame of the plea before signing the contract, counsel told [him] that there would be no aggravating factors during sentencing and that petitioner would receive a mitigated sentence of no more than 20 years.” (Id.). In his second ground for relief Keserich contends the state trial court “failed to entertain his request to reject his previously signed plea before sentencing, and his request during sentencing to reject the offer,” in violation of his right to due process. (ECF No. 4 at 7). He contends that “during sentencing” he “requested new counsel as there was an [irreconcilable] conflict of interest between petitioner and his attorney regarding the status of plea,” and that he “requested the court to reject the previously signed plea, the court granted new counsel but refused to reject the plea.” (Id.). Keserich further asserts his post-conviction counsel “caused” his trial counsel's errors “to [be] rejected from review in the state courts on his initial P.C.R. Rule 32 proceedings.” (ECF No. 4 at 8). In his fourth claim for relief Keserich argues he was denied his right to the effective assistance of counsel because “his newly appointed counsel during sentencing failed to file a motion to reject a plea that was the result of his previous counsel's errors and omissions.” (ECF No. 4 at 9).
The transcript of the sentencing hearing is at ECF No. 11-1 at 134-74. The transcript of the hearing does not reflect any statement regarding rejecting or withdrawing from the plea agreement, nor a request for new counsel.
Respondents contend the habeas petition was not filed within the applicable statute of limitations, and that Keserich's second and third claims for relief are procedurally defaulted. (ECF No. 11 at 2).
II. Analysis
A. Statute of limitations
Keserich's petition for habeas corpus relief is barred by the statute of limitations provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA imposed a one-year statute of limitations on prisoners seeking federal habeas relief from their state convictions. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations on habeas petitions begins to run on “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. Id. at § 2244(d)(2).
1. Finality of conviction
To assess the timeliness of the pending petition, the Court must first determine the date on which Keserich's conviction became “final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). By pleading guilty, Keserich was precluded from pursuing a direct appeal in the Arizona Court of Appeals. See Ariz. Rev. Stat. § 13-4033(B). Instead, Keserich was entitled to seek review of his conviction and sentence in an “of right” postconviction proceeding pursuant to then-Rule 32 (now Rule 33) of the Arizona Rules of Criminal Procedure, i.e., what the Ninth Circuit Court of Appeals has deemed the functional equivalent of a direct appeal with regard to a pleading defendant in Arizona. See, e.g., Bryant v. Arizona Att'y Gen., 499 F.3d 1056, 1058 n.1 (9th Cir. 2007), citing Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007) (“[b]ecause a Rule 32 of-right proceeding is a form of direct review, AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review.”). See also Hemmerle v. Schriro, 495 F.3d 1069, 1074 n.4 (9th Cir. 2007); Van Norman v. Schriro, 616 F.Supp.2d 939, 948 (D. Ariz. 2007).
Keserich was sentenced on May 29, 2015, and he timely filed a petition for state post-conviction relief. In an order entered November 29, 2016, the state habeas trial court, which was also the convicting court, denied the petition for a state writ of habeas corpus, i.e., denied relief in Keserich's “of right” post-conviction action. (ECF No. 11-1 at 75-76). After the trial court denied Keserich's petition for a state writ of habeas corpus, he had thirty days, until December 29, 2016, to petition the appellate court for review. See Ariz. R. Crim. P. 33.16 (formerly Rule 32.9(c)). Keserich did not file a petition for review on or before December 29, 2016; accordingly, his conviction became final at the conclusion of direct review on December 29, 2016, when the time for seeking appellate review in his “of right” proceeding expired. Therefore, the statute of limitations on his federal habeas petition began to run on December 30, 2016, and expired December 30, 2017. Keserich's federal habeas petition, docketed May 3, 2021, was not filed within the one-year statute of limitations.
Although direct review is not normally complete until the time for filing a petition for a writ of certiorari to the United States Supreme Court has expired, see Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999), certiorari can only be sought following a decision or denial of review by the state court of last resort, i.e., the Arizona Supreme Court. See Sup. Ct. R. 13. Because Keserich did not timely seek review from the state trial court's denial of post-conviction relief by the Arizona Court of Appeals or the Arizona Supreme Court, the time for filing a petition for a writ of certiorari to the United States Supreme Court does not factor into when the statute of limitations began to run, i.e., it does not factor into when Keserich's conviction because “final” at the conclusion of “direct review.”
Even allowing for statutory tolling through the finality of Keserich's second, successive, and untimely Rule 32 action, Keserich's federal habeas petition was not filed within the applicable statute of limitations. Even allowing his conviction became final when the time expired for seeking certiorari in that action ninety days after the Arizona Supreme Court denied review in that matter, i.e., on October 3, 2018, under that scenario Keserich's federal habeas petition was due October 4, 2019. Accordingly, even using this latest date as the date Keserich's conviction became final on the conclusion of “direct review,” the federal habeas petition placed in the prison's legal mail on April 20, 2021, was filed more than a year and a half after the statute of limitations expired.
2. Statutory tolling
The AEDPA's statute of limitations is tolled by the pendency of a “properly filed” state action for post-conviction relief. See 28 U.S.C. § 2244(d)(2). On January 30, 2017, one month after the time expired for filing a petition for review from the trial court's denial of relief in Keserich's “of right” post-conviction action, the Arizona Court of Appeals received a pleading titled as a “Motion to Stay,” seeking “‘a stay pending the filing of a second or successive petition in the Maricopa County Superior Court.'” (ECF No. 11-1 at 109, 126-27). The motion was signed January 26, 2017, and asked the appellate court to stay the deadline for filing a petition for review regarding the denial of relief in his first post-conviction action while Keserich's second petition was pending. (ECF No. 11-1 at 126). The appellate court forwarded the pleading to the state trial court; the appellate court did not stay the deadline for appealing the trial court's denial of relief. (ECF No. 111 at 109). The motion to stay was never granted and it was filed after the time for seeking review expired; therefore, the mere filing of the motion did not postpone the beginning of the running of the statute of limitations, nor did it toll the statute of limitations.
On January 26, 2017, Keserich filed a second, successive notice of post-conviction relief (ECF No. 11-1 at 85-87), and a corresponding petition (ECF No. 11-1 at 89-94) in the state trial court. The state habeas trial court determined the petition was successive and untimely. (ECF No. 11-1 at 96-99). The state habeas trial court also found Keserich's claims without merit, with regard to the state procedural rule defining when a second or successive petition would be allowed. (Id.). The state habeas trial court dismissed the petition as untimely, as distinct from denying relief on the merits, on May 31, 2017. (ECF No. 11-1 at 96-99).
Keserich sought review of the dismissal of his second state post-conviction petition. In an opinion filed January 25, 2018, the appellate court granted review and denied relief, holding the state habeas trial court did not abuse its discretion by dismissing what the appellate court and the trial court both labeled a second and successive petition. (ECF No. 11-1 at 115-16). Keserich sought reconsideration on February 9, 2018, which was denied on March 2, 2018. (ECF No. 11-1 at 130). Keserich then filed a petition for review in the Arizona Supreme Court, which was summarily denied on July 5, 2018. (ECF No. 11-1 at 118-23, 202).
Section 2244(d)(2) tolls the statute of limitations during the time a “properly filed” state post-conviction petition is pending. “Properly filed means the petition's delivery and acceptance are in compliance with the applicable laws and rules governing filings in that state.” Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005) (internal citations omitted). In Pace v. DiGuglielmo, the Supreme Court held that “[w]hen a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2).” 544 U.S. 408, 410, 413 (2005) (holding a state petition that is not filed within the state's required time limit is not “properly filed.”). See also Allen v. Siebert, 552 U.S. 3, 5-7 (2007) (holding the Pace rule applies even where there are exceptions to the state-court filing deadlines, and reaffirming that a state court's rejection of a petition as untimely is “the end of the matter”). Accordingly, the AEDPA's statute of limitations was not tolled during the pendency of Keserich's second and successive state action for post-conviction relief, as the state court concluded the action was not “properly filed.”
3. Equitable tolling
The one-year statute of limitations for filing a federal habeas petition may be equitably tolled if extraordinary circumstances beyond the petitioner's control prevented them from filing their petition on time. See Holland v. Florida, 560 U.S. 631, 645 (2010); Gibbs v. Legrand, 767 F.3d 879, 884-85 (9th Cir. 2014). As to the first element, “[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (internal citations and quotations omitted). As to the second element, “[e]quitable tolling is applicable only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quotations and citations omitted and emphasis added). See also Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). The petitioner must establish a “causal connection” between the extraordinary circumstances and their failure to file a timely petition. See Bryant, 499 F.3d at 1060. And the “extraordinary circumstance” must be attributable to an external force rather than a petitioner's lack of diligence or his lack of legal knowledge. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Notably, any alleged ignorance of the statute of limitations or inability to properly calculate the running of the statute of limitations does not warrant equitable tolling, as the “lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). See also Robinson v. Kramer, 588 F.3d 1212, 1216 (9th Cir. 2009). Additionally, a petitioner's pro se status, indigence, limited legal resources, 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. Apetitioner's “confusion about whether [his] state filing would be timely” does not justify his delay in filing a federal habeas petition. See Pace, 544 U.S. at 416.
Equitable tolling is also available if the petitioner establishes their actual, factual innocence of the crimes of conviction. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014). When an otherwise time-barred habeas petitioner “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial,” and the petitioner also asserts a colorable claim that his state criminal proceedings involved non-harmless constitutional error, the Court may consider the petition on the merits. Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014), citing Schlup v. Delo, 513 U.S. 298, 329 (1995). The Supreme Court has cautioned, however, that “tenable actual-innocence gateway pleas are rare.” McQuiggin, 569 U.S. at 386. “[A] petitioner does not meet the threshold requirement unless he persuades 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.” Id. Keserich does not present “new evidence” establishing his actual, factual innocence and, notably, Keserich pled guilty to numerous crimes. Keserich, in asserting he was denied the effective assistance of counsel, presents a claim of legal rather than factual guilt.
Equitable tolling is to be rarely granted. See, e.g., Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014). “To receive equitable tolling, a petitioner bears the burden of showing (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. [] ... the threshold necessary to trigger equitable tolling ... is very high, lest the exceptions swallow the rule.” Waldon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). It is the petitioner's burden to establish that equitable tolling is warranted in his case. See Porter, 620 F.3d at 959; Waldon-Ramsey, 556 F.3d at 1011; Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2004).
Keserich asserts his petition is timely because, inter alia, he had ninety days from the date the mandate issued in his second, successive Rule 32 action to seek certiorari, and he argues this tolled the running of the AEDPA's statute of limitations until December 20, 2018. (ECF No. 1 at 2). With regard to the timeliness of the petition, Keserich asserts his conviction became final on September 20, 2018, when the Arizona Court of Appeals “issued its mandate.” (Id.). He alleges he “had ninety days (90) day to file a writ of certiorari in the U.S. Supreme Court ... adding the ninety days to the above September 20, 2018, date” and, accordingly, the statute of limitations with regard to his federal habeas petition did not begin to run until December 20, 2018. (Id.). As explained supra, Keserich is incorrect in stating that the statute of limitations was tolled by any availability to seek a writ of certiorari from the United States Supreme Court; although this would be true if Keserich had timely appealed from the trial court's denial of relief in his first Rule 32 action, his first “of right” appeal, Keserich did not timely appeal to the Arizona Court of Appeals in his first Rule 32 action, but instead he filed a second and successive petition in the state trial court. Keserich's foregoing arguments demonstrate only that he was confused about when the statute of limitations began to run, which is not an extraordinary circumstance warranting equitable tolling.
Even allowing for statutory tolling during Keserich's second, successive state postconviction action, as Respondents note, when a decision of the appellate court has been appealed to the Arizona Supreme Court the date of that court's decision is the date review is completed, not the date the appellate court's mandate issues. See ECF No. 11 at 8, citing Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007), and White v. Klizkie, 281 F.3d 920, 923 n.4 (9th Cir. 2002) (“it is the decision of the state appellate court, rather than the ministerial act of entry of the mandate, that signals the conclusion of review.”).
With regard to the timeliness of his federal habeas action Keserich also alleges: “Before the December 20, 2019 deadline to file [his] § 2254,” he was “suffering with several illnesses” and “sometime in August of 2019 was place[d] on” the prison's “surgery out patient list, to undergo several surgical procedures expanding months apart.” (ECF No. 1 at 2). He alleges he underwent his first surgery in October of 2019 “with a lengthy recovery time.” (Id.). He contends that his family retained counsel to represent him in a § 2254 action, and that counsel failed to file a petition and counsel became unavailable in July of 2020. (ECF No. 1 at 3). Keserich asserts that it was only in February of 2021 that he realized no petition had been filed. (Id.). Attached to Keserich's pleading is a letter from Keserich's mother stating she retained habeas counsel in November of 2019, who assured her Keserich's “case would remain active in the Federal Court and that he would file the Federal Petition ...” (ECF No. 1 at 13). Keserich's mother avers that, when she inquired as to the status of the case in July of 2020, counsel informed her the records were incomplete and he needed additional time to investigate. (Id.). She notes that seven months later Keserich asked the Court about the status of his petition, and he was informed that no case was pending. (Id.). Keserich's mother then states “I made many calls to [counsel] to find out why nothing was done. At this point I requested my money back and I was refunded my money and to this day I have not heard anything from” counsel. (Id.). Keserich argues he is entitled to equitable tolling because his retained counsel's failure to timely file a federal habeas petition is an “extraordinary circumstance.” (ECF No. 22 at 4).
Keserich asserts he has demonstrated due diligence “by the continuation of each process in each stage of his case,” noting he has no legal training and that he was “without the assistance of a legal library or without proper representation.” (ECF No. 22 at 4). However, the statute of limitations on Keserich's federal habeas petition began to run, at the absolute latest, in October of 2018. Even allowing for this incorrect later date, Keserich was not diligent in pursuing habeas relief because, although he seeks to toll the statute of limitations based on the time limit for seeking certiorari, he in fact did not seek a writ of certiorari at the completion of his second state habeas action. The record indicates that Keserich did nothing at all to pursue federal habeas relief for more than a year, i.e., from July of 2018 when the Arizona Supreme Court denied relief in his second, successive postconviction action, until October or November of 2019, after the statute of limitations had unquestionably expired, when he purportedly retained counsel to pursue federal habeas relief. Accordingly, pursuant to a strict application of § 2244 with regard to when Keserich's conviction became final (when the time expired for him to appeal the trial court's denial of relief in his first, properly-filed state action for post-conviction relief), and even pursuant to the most generous application of § 2244 with regard to when his conviction became final (when the time expired for seeking a writ of certiorari in his second, successive, untimely action for state post-conviction relief), the statute of limitations expired prior to Keserich's surgery and prior to the retention of purportedly incompetent and ineffective counsel by Keserich's mother.
III. Conclusion
Keserich's federal habeas petition was not filed within the one-year statute of limitations established by the AEDPA, and he has not established he is entitled to equitable tolling of the statute of limitations. Nor has Keserich established a fundamental miscarriage of justice will occur absent the Court's forgiveness of his failure to timely file his federal habeas petition.
IT IS THEREFORE RECOMMENDED that the amended petition seeking a federal writ of habeas corpus at ECF No. 4 be DENIED.
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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the 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 ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Keserich seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.