Opinion
CV-22-08036-PCT-GMS (ESW)
06-27-2022
Gilbert Mainez, Petitioner, v. A.D.W. Eccles, et al., Respondents.
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge.
Pending before the Court is Gilbert Mainez's (“Petitioner”) Amended “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Amended Petition”) (Doc. 5). For the reasons explained herein, the undersigned recommends that the Court dismiss the Amended Petition (Doc. 5) as untimely.
I. BACKGROUND
On August 3, 2016, a jury sitting in the Superior Court of Arizona in and for Yavapai County found Petitioner guilty on the following counts: (i) two counts of Attempted Aggravated Assault; (ii) Resisting Arrest; (iii) Disorderly Conduct Per Domestic Violence; (iv) two counts of Aggravated Assault; and (v) Disorderly Conduct. (Doc. 11-1 at 34-35, 41-53). On September 21, 2016, the trial court sentenced Petitioner to a total of 8.75 years in prison. (Id. at 63-67).
Petitioner filed a direct appeal. (Doc. 11-2 at 5-23). On December 28, 2017, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 61-66). On July 24, 2018, the Arizona Supreme Court denied Petitioner's request for further review. (Doc. 11-3 at 2).
In March 2022, Petitioner initiated this federal habeas proceeding. (Doc. 1). The Court required Respondents to answer the Amended Petition (Doc. 5). (Doc. 8). In their May 16, 2022 Limited Answer (Doc. 11), Respondents argue that the proceeding is untimely. Petitioner did not file a Reply and the time to do so has passed.
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner must file his or her federal habeas petition within one year of 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 petitioner was prevented from filing by the State action;
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the “time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) (“Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases.”). Yet equitable tolling is applicable only “if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his or her rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. This Proceeding is Untimely
In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's judgment became “final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
The Arizona Court of Appeals affirmed Petitioner's convictions and sentences on December 28, 2017. (Doc. 11-2 at 61-66). On July 24, 2018, the Arizona Supreme Court denied Petitioner's request for further review. (Doc. 11-3 at 2). Petitioner had ninety days from July 24, 2018 (until October 22, 2018) to file a petition for writ of certiorari in the United States Supreme Court, but Petitioner did not do so. Sup. Ct. R. 13. Consequently, Petitioner's convictions and sentences became final on October 22, 2018. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (“[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.”). Statutory tolling does not apply as Petitioner did not initiate a post conviction relief proceeding in state court. Accordingly, unless equitable tolling applies, Petitioner's one-year deadline to file a federal habeas petition expired on October 22, 2019, rendering this proceeding untimely. See Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (AEDPA's statute of limitations commences upon the expiration of the time for seeking review of petitioner's judgment in a state's highest court); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which Patterson's petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' the one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 . . . .”).
As mentioned, to receive equitable tolling, a petitioner bears the burden of showing (i) that he has been pursuing his rights diligently and (ii) that some extraordinary circumstance stood in his way. Pace, 544 U.S. at 418. A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., Johnson v. United States, 544 U.S. 295, 311 (2005). In addition, a petitioner's miscalculation of when the limitations period expired does not constitute an “extraordinary circumstance” warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Alexander v. Schriro, 312 Fed.Appx. 972, 976 (9th Cir. 2009) (“Ultimately [the petitioner] made an incorrect interpretation of the statute and miscalculated the limitations period. This does not amount to an ‘extraordinary circumstance' warranting equitable tolling.”).
Here, in addressing the statute of limitations, Petitioner states in the Amended Petition: “I first mailed my petition on 01/12/19 within my timefram[e], but D.O.C. never sent it, I just became aware of this when I got my petition back on 2-24-22 in the mail.” (Doc. 5 at 11). In their Limited Answer, Respondents explain that they requested Petitioner's prison mail logs between January 2019 through March 2022. (Doc. 11 at 7). After reviewing Petitioner's legal mail logs, Rynning Unit's Mail and Property Lieutenant found no outgoing legal mail during that time period. (Doc. 11-3 at 35).
Petitioner has not filed a Reply disputing the assertions in Respondents' Limited Answer. Petitioner has not provided any evidence substantiating Petitioner's assertion that he attempted to mail a habeas petition in January 2019. Further, Respondents correctly assert that Petitioner's failure to inquire into the status of the habeas petition purportedly mailed in 2019 demonstrates a lack of diligence. “As a general rule, the ‘they lost my mail argument' typically will not succeed . . . for filing deadlines would become meaningless if a mere affidavit stating that a motion was timely filed, but was evidently lost in the mail, was all that was needed to excuse an untimely filing.” Johnson v. United States, No. 10-CV-341, 2010 WL 2490694, at *3 (E.D. Wis. June 17, 2010) (citing Washington v. Ollison, 2007 WL 1378013, *3 n. 3 (N.D. Cal. 2007); see also Howard v. Stephan, No. CV 1:21-3356-RMG-SVH, 2021 WL 6841642, at *3 (D.S.C. Nov. 12, 2021) (finding habeas petition untimely even though petitioner claimed he previously mailed a habeas petition as the petitioner did not show that he diligently pursued his rights “as he waited over two years to follow up with the court about the petition he allegedly mailed in July 2019”); compare Washington v. Ollison, No. C-06-4490-SI (PR), 2007 WL 1378013, at *3 n.3 (N.D. Cal. May 9, 2007) (finding that habeas petitioner's assertion of lost mail “is believable because he presented (a) a prison mail log showing that some mail was sent by him to this court's Eureka branch in the relevant time period, (b) a third-party directory listing the Eureka address as a branch for this district, (c) his inmate trust account statement showing postage for a heavy package being deducted from his account at the relevant time, and (d) contemporaneous inmate appeals complaining about the lost mail”).
There is no indication in the record that the circumstances of Petitioner's incarceration made it “impossible” for Petitioner to timely file a federal habeas petition. Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (finding that equitable tolling did not apply where there was “no indication in the record that [circumstances] made it ‘impossible' for [prisoner] to file on time”); Wilson v. Bennett, 188 F.Supp.2d 347, 35354 (S.D.N.Y. 2002) (allegations that the petitioner lacked legal knowledge and had to rely on other prisoners for legal advice and in preparing his papers “cannot justify equitable tolling” as such circumstances are not “extraordinary”). Petitioner has failed to show the existence of “extraordinary circumstances” 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”). Equitable tolling therefore is unavailable. Accordingly, the Amended Petition is untimely.
B. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the Untimeliness of this Proceeding
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” to federal habeas review 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 petitioner seeking federal habeas 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 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.” 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)).
To the extent Petitioner may assert the actual innocence/Schlup gateway, Petitioner has not presented any new reliable evidence establishing that he is factually innocent of his convictions. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (“In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him “within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice.'”) (citations omitted); Shumway, 223 F.3d at 990 (“[A] claim of actual innocence must be based on reliable evidence not presented at trial.”); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (“[W]e have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt.”). The undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse the untimeliness of this federal habeas 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.'”).
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Amended Petition (Doc. 5) be DISMISSED 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 Amended Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This Report and 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 Report and 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. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 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 Fed.R.Civ.P. 72.