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rejecting magistrate judge's recommendation "that equitable tolling is . . . not available" in light of Bowles and noting that "the Ninth Circuit has continued to apply equitable tolling to the AEDPA's statute of limitations post- Bowles."
Summary of this case from Washington v. FizerOpinion
No. CV 07-1192-PHX-JAT.
June 23, 2008
ORDER
Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"), which was filed on June 18, 2007. (Doc. # 1.) On January 18, 2008, Magistrate Judge Aspey issued a Report and Recommendation ("R R") in which he recommended that the Petition be denied and dismissed as untimely filed. (Doc. # 17.) On February 4, 2008, Petitioner filed a Notice of Objection to the R R. (Doc. # 18.)
I. STANDARD OF REVIEW
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc) (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, `but not otherwise.'"). District courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added). The Petitioner has filed a Notice of Objection (Doc. # 18), and the Court reviews de novo the portions of the R R to which objections were filed. See 28 U.S.C. § 636(b)(1).
II. FACTUAL AND PROCEDURAL BACKGROUND
The R R sets forth the background of this case, to which neither party objected, so the Court adopts it as an accurate recital. (Doc. # 17.) In brief, Petitioner was convicted of six counts of sexual conduct with a minor under the age of fifteen in June of 1989. The Arizona Court of Appeals affirmed Petitioner's convictions and sentences on July 2, 1991. Petitioner sought review by the Arizona Supreme Court, which denied review on January 21, 1992. Petitioner did not seek a writ of certiorari from the United States Supreme Court. Petitioner timely filed his first action seeking post-conviction relief in state court on March 22, 2004.
III. DISCUSSION
A. STATUTE OF LIMITATIONS
In the R R, Magistrate Judge Aspey recommends that the Petition be denied and dismissed as untimely filed. Because the Petition was filed in 2008, it is governed by the statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d), which provides:
(1) 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.
(2) The 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 any period of limitation under this subsection.
For purposes of § 2244(d)(1)(A), Petitioner's conviction became final on April 20, 1992, ninety days after the Arizona Supreme Court denied review of Petitioner's convictions and sentences, when the time expired for seeking certiorari regarding his convictions and sentences from the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("We hold that the 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. Therefore, when a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires."). Since Petitioner's conviction was finalized prior to the AEDPA's effective date of April 24, 1996, the one-year grace period is applied and Petitioner's limitations period expired on April 24, 1997, assuming the absence of statutory tolling. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
Arizona Supreme Court denied review on January 21, 1992. (Doc # 11, Ex. D.) R R states that Petitioner's conviction became final on or about April 20, 1992. Petitioner does not dispute this in his Objection to the R R.
The one-year statute of limitations is tolled during the time that 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); see also Artuz v. Bennett, 531 U.S. 4, 6 (2000). An application for collateral review is pending during all of the time in which a state prisoner is "attempting, through proper use of state court procedures, to exhaust state remedies. . . ." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
Petitioner had no actions that could toll the limitations period pending in state court during the AEDPA grace period. Further, Petitioner did not file this Petition during the AEDPA grace period. While Petitioner did file an action in state court for post-conviction relief on March 22, 2004, the limitations period had already run at the time of that filing. A limitations period cannot be restarted by the filing of a state court action that would have tolled that limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (citing Tinker v. Moore, 255 F.3d 1331 (11th Cir. 2001)) (holding that "section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."). Therefore, the Petition filed on June 18, 2007 is more than ten years untimely and not subject to statutory tolling.
B. EQUITABLE TOLLING
The R R also recommends that equitable tolling be denied. It applies the Supreme Court's recent decision in Bowles v. Russell, 127 S. Ct. 2360 (2007), to the AEDPA's statute of limitations and concludes § 2254 petitioners are not entitled to equitable tolling. (Doc. # 17, at 7.) Bowles states that time limits enacted by Congress are jurisdictional and that federal courts have no authority to create equitable exceptions to jurisdictional requirements. 127 S. Ct. at 2366. This Court disagrees with the R R's conclusion that equitable tolling is therefore not available. Prior to Bowles, the Supreme Court assumed, without deciding, that equitable tolling is available under 28 U.S.C. § 2244(d). See Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007). Further, the Ninth Circuit has continued to apply equitable tolling to the AEDPA's statute of limitations post- Bowles. Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008); accord Coker v. Quarterman, No. 05-10020, 2008 WL 724042, at *5 n. 1 (5th Cir. Mar. 17, 2008) (expressly holding that equitable tolling of AEDPA's statute of limitations survives Bowles); Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008) (same). Accordingly, this Court will allow Petitioner the potential for equitable tolling.
For Petitioner to be entitled to equitable tolling, he must show "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Lawrence, 127 S. Ct. at 1085 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). First, Petitioner claims that his lack of access to legal assistance constitutes an extraordinary circumstance that prohibited him from filing his writ of habeas corpus in a timely manner. Petitioner's lack of familiarity with the law and lack of legal assistance do not toll the limitations period. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). The Supreme Court has held that there is no right to legal assistant in seeking any type of post-conviction relief, and, as a result, lack of legal assistance in seeking post-conviction relief cannot form the basis for equitable tolling. Lawrence, 127 S. Ct. at 1085 ("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.").
Second, Petitioner claims the removal of state and federal case law prohibited him from timely filing. The Court notes that in some cases inadequate legal materials can be an "impediment" that justifies late filing, or can form the basis of equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) ( en banc). However, Petitioner alleges only that case law was removed, not statutory materials, so the AEDPA was likely available to him. Additionally, Petitioner fails to allege diligence in pursing his rights. Nothing in his objection indicates what steps, if any, he took in attempting to timely pursue habeas relief. Further, considering this Court's finding regarding statutory tolling, Petitioner would need more than ten years of equitable tolling in order for his Petition to be timely. Petitioner alleges his access to legal assistance and materials was taken away at some point, but fails to allege a specific timeline in order to establish equitable tolling.
In some cases, specific factual allegations can necessitate an evidentiary hearing to determine if available legal materials were insufficient and when Petitioner's access to said materials was denied. "A habeas petitioner . . . should receive an evidentiary hearing when he makes `a good faith allegation that would, if true, entitle him to equitable tolling.' Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir. 2003) (emphasis added)." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006); see also Allen v. Lewis, 255 F.3d 798, 800-01 (9th Cir. 2001) (holding that Petitioner "must show that the extraordinary circumstances were the but-for and proximate cause of his untimeliness"). Petitioner makes no allegations, which, if true, would entitle him to relief. Further, Petitioner did not request an evidentiary hearing. Accordingly, this Court finds no hearing is necessary in this case.
III. CONCLUSION
Based on the foregoing,
IT IS ORDERED that the Court overrules Petitioner's objections (Doc. # 18) and accepts in part and modifies in part the Report and Recommendation (Doc. # 17) as indicated above;
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. # 1) is denied, terminating this case; and the Clerk of the Court shall enter judgment accordingly.