Opinion
CV-23-0950-PHX-DLR (JFM)
01-10-2024
Jose Valentine Lopez-Leyva Petitioner v. Ryan Thornell, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE.
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Based on the record before this Court and applicable law, the undersigned finds the following factual and procedural background:
A. PROCEEDINGS AT TRIAL
“Leyva pleaded guilty in 2013 to sexual conduct with a minor and two counts of attempted child molestation. The trial court sentenced him to a twenty-year prison term for sexual conduct and, for the attempt convictions, suspended the imposition of sentence and placed Leyva on lifetime probation.” (Exh. R, Mem. Dec. 3/6/23 at ¶ 2; Exh. D, Plea Agreement.) (Exhibits to the Answer (Doc. 11) are referenced herein as “Exh. _____.”) Petitioner was sentenced on January 28, 2014. (Exh. F, Sentence; Exh. W, RT Sent. 1/28/14.)
B. POST CONVICTION PROCEEDINGS
Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2, ¶ 8.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz. R. Crim. P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
1. First PCR
Thirty days after sentencing, on February 28, 2014, Petitioner commenced his first, of-right post-conviction relief (PCR) proceeding by filing a PCR Notice (Exh. G). Counsel was appointed (Exh. H, Order 4/5/14) who eventually filed a Notice of Completion (Exh. I) asserting an inability to find a “colorable” issue for review. Petitioner was given through September 19.2014 to file a pro per PCR Petition. (Exh. J, Order 8/5/14.) Petitioner did not do so, and on October 7, 2014, the proceeding was dismissed. (Exh. K, Order 10/7/14.)
Although Petitioner asserts he sought further review of this proceeding (Petition, Doc. 1 at 5), the record before the Court does not support that assertion. Consequently, the undersigned finds Petitioner did not seek further review. (Petition, Doc. 1 at 3.) His time to do so expired thirty days after the dismissal, or on Thursday, November 6, 2014. See Ariz. R. Crim. Proc. 32.9(c) (2014) (30 days from decision for petition for review).
2. Second PCR
On November 8, 2016, over two years after dismissal of the first PCR proceeding, Petitioner filed with the trial court a “Motion for Lack of Subject Matter Jurisdiction and to Dismiss All Charges” (Exh. I). On November 21, 2016, the trial court construed the filing as a notice of PCR and dismissed it for failure to state a colorable claim, rejecting the jurisdictional claim on the merits, and others as untimely and waived. (Exh. M, Order 11/21/16.
Although Petitioner asserts he sought further review of this proceeding (Petition, Doc. 1 at 5), the record before the Court does not support that assertion. Consequently, the undersigned finds Petitioner did not seek further review. His time to do so expired thirty days after the dismissal, or on Wednesday, December 21, 2016. See Ariz. R. Crim. Proc. 32.9(c) (2016) (30 days from decision for petition for review).
3. Third PCR
Over five years later, on July 6, 2022, Petitioner commenced his third PCR proceeding by filing his Notice of PCR (Exh. N) and PCR Petition (Exh. O). The PCR court dismissed the petition and proceeding based on findings of waiver, non-colorable claims, and waiver in prior proceedings. (Exh. P, Order 9/13/22.)
Petitioner timely sought review in a one paragraph Petition for Review (Exh. R, PFR), and in a decision issued March 6, 2023, the Arizona Court of Appeals denied review based on failure to support the petition with legal argument and citations to authority and the record. (Exh. R, Mem. Dec. 3/6/23.) Petitioner filed a motion for reconsideration which was denied, but no petition for review by the Arizona Supreme Court, and on June 7, 2023, the Arizona Court of Appeals issued a Mandate (Exh. S).
C. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 30, 2023 (Doc. 1). Petitioner's Petition asserts the following three grounds for relief:
In Ground One, Petitioner appears to assert claims of vindictive prosecution and prosecutorial misconduct. In Ground Two, he claims he was denied due process and equal protection in connection with a “manipulated” plea agreement. In Ground Three, Petitioner asserts a Brady claim.(Order 9/27/23, Doc. 7 at 1-2.)
Response - Respondents have filed a Limited Answer (Doc. 11), arguing the petition is untimely, and the claims procedurally defaulted.
Reply - On December 4, 2023, Petitioner filed a Reply (Doc. 12). Petitioner argues: (a) he is entitled to de novo review of claims of ineffective assistance; (b) the prosecutor should not be insulated on habeas review from his misconduct; (c) Respondents are merely “assuming” their recitation of the history of the PCR proceedings; and (d) Respondents are “not following the direct collateral review of this case.” Petitioner requests an evidentiary hearing and relief. Petitioner does not otherwise address Respondents' affirmative defenses of statute of limitations and procedural default.
The Petition raises no claims of ineffective assistance of counsel.
Petitioner also complains about Defendants requesting leave to address the merits if the Court rejects the affirmative defenses. (See Answer, Doc. 11 at 2, N. 1.) The Court has already authorized such a procedure. (See Order 9/27/23, Doc. 7 at 3.)
APPLICATION OF LAW TO FACTS
A. EVIDENTIARY HEARING
Petitioner requests an evidentiary hearing. (Reply, Doc. 12 at 3.) However, Petitioner posits no issue before the Court (in light of the affirmative defenses found herein) on which an evidentiary hearing should be held. Moreover, he makes no proffer of evidence that would be admitted at such a hearing.
“In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Consequently, where a petitioner does not proffer any evidence to be adduced at an evidentiary hearing which would prove the allegations of the petition, the habeas court need not grant a hearing. Chandler v. McDonough, 471 F.3d 1360, 1363 (11th Cir. 2006) (“The failure to proffer any additional evidence defeats [petitioner's] argument that he was entitled to an additional evidentiary hearing in federal court.”); Williams v. Bagley, 380 F.3d 932, 977 (6th Cir.2004) (“district court did not abuse its discretion in denying Williams's request, given his failure to specify ... what could be discovered through an evidentiary hearing”); Lincecum v. Collins, 958 F.2d 1271, 127980 (5th Cir.1992) (denying evidentiary hearing “[a]bsent any concrete indication of the substance of the mitigating evidence” the hearing supposedly would provide).
Petitioner fails to show he is entitled to an evidentiary hearing.
B. STATUTE OF LIMITATIONS
Respondents assert that Petitioner's Petition is untimely. A 1-year statute of limitations applies to all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed. Id.
1. Commencement of Limitations Period
The one-year statute of limitations on habeas petitions generally 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." 28 U.S.C. § 2244(d)(1)(A).
Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. § 2244(d)(1)(B)-(D). Petitioner proffers no argument that any of these apply.
Although the conclusion of direct review normally marks the beginning of the statutory one year, section 2244(d)(1)(D) does provide an alternative of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Thus, where despite the exercise of due diligence a petitioner was unable to discover the factual predicate of his claim, the statute does not commence running on that claim until the earlier of such discovery or the elimination of the disability which prevented discovery. Petitioner does not assert any newly discovered factual predicates. However, Petitioner did raise in his third PCR proceeding a claim of newly discovered material evidence, but he failed to “provide any newly discovered material facts. Instead, he provides a copy of the indictment.” (See Exh. P, Order 9/13/22 at 2-3.) Accordingly, the finality of Petitioner's conviction by conclusion of direct review marks the commencement of his limitations period.
For an Arizona noncapital pleading defendant, “Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). “To bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to the Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of his or her intent to file a Petition for Post-Conviction Review.” Id. at 715 (citing Ariz. R.Crim. P. 32.4(a)). Thus, the conviction of a pleading defendant becomes “final” at the conclusion of the first “of-right” post-conviction proceeding under Rule 32, or the expiration of the time to do so.
Effective January 1, 2020, the substance of former Rule 32 was divided among two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pleaded guilty or no contest (new Rule 33). See Ariz. Supreme Ct. Order No. R-19-0012. The new rule would apply only to Petitioner's third PCR proceeding. The changes wrought are not meaningful to the issues addressed herein.
Here, Petitioner filed a timely, of-right PCR proceeding, which remained pending until October 7, 2014, when it was dismissed by the PCR court. The undersigned notes, however, that the minute order dismissing the PCR proceeding, although dated October 7, 2014, did not appear to have been entered in the presence of the parties, and was not filed until October 8, 2014. Thus, the dismissal date should be deemed to be the later date. See Matter of Maricopa County Juvenile Action No. JS-8441 , 174 Ariz. 341, 343, 849 P.2d 1371, 1373 (1992) (concluding on the basis of fundamental fairness, that a minute order be deemed entered on the latest date reflected however denominated). But see State v. Whitman, 234 Ariz. 565, 568 , ¶ 20, 324 P.3d 851, 854 (2014) (“time limit for filing a notice of appeal begins to run on the date of oral pronouncement of sentence”).
Rule 32.9(c) required petitions for review to the Arizona Court of Appeals be filed within thirty days of the trial court's decision on the PCR petition. Moreover, at the time Arizona applied Arizona Rule of Criminal Procedure 1.3 (2014) to extend “the time to file an appeal by five days when the order appealed from has been mailed to the interested party and commences to run on the date the clerk mails the order.” State v. Zuniga, 163 Ariz. 105, 106, 786 P.2d 956, 957 (1990). Here, there is no indication that the PCR court's decision was delivered to Petitioner or his counsel by any means other than mailing. Accordingly, Petitioner's time to seek review by the Arizona Court of Appeals expired 35 days after the PCR court's decision, or on Wednesday, November 12, 2014.
Respondents calculate a finality date of November 7, 2014, but do not acknowledge the delayed filing of the PCR court's dismissal order, and do not apply Arizona's Rule 1.3's extension after mailing.
2. Expiration without Statutory Tolling
For purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Rule 6(a)(1)(A) directs that the “the day of the event that triggers the period” is excluded. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying “anniversary method” under Rule 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later on the anniversary of such adoption, April 24, 1997).
Based on the foregoing, Petitioner's conviction became final on November 12, 2014, upon expiration of his time to file a petition for review with the Arizona Court of Appeals in his of-right, first PCR proceeding, commenced running thereafter, and (without any tolling) expired on Thursday, November 12, 2015.
3. Statutory Tolling
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). However, Petitioner's second and third PCR proceedings were commenced in November 2016 and July 2022, long after Petitioner's one year had expired. Once the statute has run, a subsequent post-conviction or collateral relief filing does not reset the running of the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, Petitioner has no statutory tolling resulting from his second or third PCR proceedings.
4. Equitable Tolling
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and ‘the extraordinary circumstances were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances ma[de] it impossible to file a petition on time.Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations omitted). Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). Petitioner does not proffer any grounds for equitable tolling, and the undersigned finds none.
5. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383 (2013). This exception applies “only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.' ” Id. at 400 (quoting Schlup, 513 U.S. at 316). “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-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324. Petitioner makes no claim of actual innocence based on new credible evidence, and the record reveals none.
6. Petition Untimely
Petitioner's Petition was filed May 30, 2023, and reflects it was placed in the prison mailing system on May 23, 2023. “In determining when a pro se state or federal petition is filed, the ‘mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Even deemed filed May 23, 2023, Petitioner's petition is
As determined above, Petitioner's one year habeas limitations period expired no later than November 12, 2015, making his Petition over seven years delinquent. Consequently, the Petition must be dismissed with prejudice.
C. OTHER DEFENSES
Because the undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations, Respondents other affirmative defenses are not reached.
CERTIFICATE OF APPEALABILITY
“When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied. / / / /
RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.
(B) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
EFFECT OF RECOMMENDATION
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.
However, 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. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”