Opinion
CV-23-01409-PHX-JAT (ASB)
05-07-2024
Robert James Major, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE ALISON S. BACHUS, JUDGE
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Robert James Major (“Petitioner”), who is confined in the Arizona State Prison Complex, has filed a pro se Amended Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (Doc. 4). For the reasons that follow, the Court recommends that the Petition be denied and dismissed.
Citation to the record indicates documents as they are displayed in the District of Arizona's official Court electronic document filing system under Case No. CV-23-01409-PHX-JAT (ASB).
PROCEDURAL HISTORY
I. State Proceedings
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court's opinion should not be afforded the presumption of correctness).
[I]n June 2017, Major threw a drinking glass at the victim while she was sleeping, causing a deep cut on her cheek. Major was charged with aggravated assault with a deadly weapon or dangerous instrument and aggravated assault causing temporary but substantial disfigurement.
The victim testified she had told police that Major “had thrown a glass at [her] face”; other witnesses testified that she had told them the same. Major did not object to any of these statements.
The victim had initially reported that Major had struck her with a glass, but later stated she “wasn't entirely certain what happened” and retreated from her initial story. She told hospital personnel she had been injured in a bar fight.
Later, however, she contacted police and confirmed that Major had hit her in the face with the glass. She testified she had delayed telling police that Major had assaulted her because she was afraid of him, but ultimately decided to “tell the truth about what happened” because “fighting” and “threats” had “continued” after the incident. And a police officer testified the victim had told him she had delayed reporting “what had actually happened” because she “had been too scared.” A second officer noted that “fear” is “a big factor” when speaking to victims of domestic violence. Again, Major did not object to this testimony.
After a two-day trial, the jury found Major guilty of both charged counts. The trial court sentenced him to concurrent prison terms, the longer of which is eleven years.(Doc. 9-1 at 4-5.)
A. Direct Appeal
On May 11, 2020, Petitioner's appellate counsel filed a direct appeal in which he presented one issue:
I. The State relied on hearsay and other act evidence which impacted a key factual dispute to the point that Major was deprived of his Fourteenth Amendment due process right to a fair trial.(Doc. 9-1 at 15-16.)
On August 31, 2020, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 9-1, Exh. A.) Petitioner did not file a motion for reconsideration or a petition for review and the Mandate issued on March 2, 2021. (Doc. 9-1, Exh. D.)
B. Post-Conviction Relief Proceedings
On September 15, 2020, Petitioner filed a notice of post-conviction relief (“PCR”). (Doc. 9-1, Exh. E.) Petitioner was appointed counsel to represent him on PCR, however, on March 11, 2021, that counsel filed a notice of no colorable claims and asked the superior court to allow Petitioner time to file a pro se PCR petition. (Doc. 9-1, Exh. F.) On March 12, 2021, the superior court set a deadline of April 19, 2021, for Petitioner to file a PCR petition. (Doc. 9-1, Exh. G.) On April 21, 2021, the superior court denied Petitioner's PCR notice after finding Petitioner failed to file a PCR petition on his own behalf before the deadline. (Doc. 9-1, Exh. H.)
II. Federal Proceedings
A. Petitioner's Habeas Petition
On July 17, 2023, Petitioner filed a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) On October 5, 2023, the Court dismissed Petitioner's petition with leave to amend. (Doc. 3.) On October 31, 2023, Petitioner filed an Amended Petition (Doc. 4) and raised five claims:
GROUND ONE: The victim's testimony was inconsistent, not credible, and possibly coerced.
GROUND TWO: A witness with a felony conviction was not disqualified from testifying at trial.
GROUND THREE: Police and prosecutorial misconduct and flawed forensic evidence.
GROUND FOUR: Ineffective assistance of private and appointed counsel.
GROUND FIVE: Prosecutorial and judicial misconduct.(Doc. 4.)
Respondents filed a Response, in which they argue Petitioner's habeas petition is untimely and barred by the statute of limitations. (Doc. 9.) Petitioner did not file a Reply and the time to do so has now passed.
ANALYSIS
I. Applicable Law
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
A. Timeliness
The AEDPA imposes a one-year limitation period on state prisoners filing habeas corpus petitions in federal court. 28 U.S.C. § 2244(d)(1). The limitation period generally runs from the latest of the following:
(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.28 U.S.C. § 2244(d)(1).
On August 31, 2020, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 9-1, Exh. A.) Petitioner did not file a motion for reconsideration or a petition for review, and the Mandate issued on March 2, 2021. (Doc. 9-1, Exh. D.) Thus, Petitioner's convictions became final for purposes of the AEDPA on September 30, 2020, upon the expiration of his time for seeking review. See Ariz. R. Crim. P. 31.21(b)(2) (holding in relevant part, “[a] party must file a petition for review no later than 30 days after the Court of Appeals enters its decision[.]”). The AEDPA's one-year statute of limitations therefore began running on October 1, 2020, and expired one year later on October 1, 2021. However, on September 15, 2020, Petitioner filed a notice of PCR in the superior court (Doc. 9-1, Exh. E), which tolled the statute of limitations until the PCR court denied the notice on April 21, 2021 (Doc. 9-1, Exh. H). The statute of limitations then ran for one year, until April 22, 2022. Petitioner mailed his original petition on July 17, 2023, more than one year after the one-year limitation period had expired. (Doc. 1.)
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). Thus, the one-year statute of limitations began running the day after Petitioner's convictions became final for purposes of the AEDPA. See Fed.R.Civ.P. 6(a)(1)(A) (“[E]xclude the day of the event that triggers the period”).
The AEDPA's one-year limitation period is tolled for the time period “during which 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).
In response to the timeliness of the Petition and why the one-year statute of limitations should not bar consideration of his Petition, Petitioner argues: (1) he has been moved to two different facilities and going through medical rehabilitation for a heel injury, (2) he does not have access or support to assist with completing legal paperwork, (3) COVID-19 impacted his access to “items needed to complete the process sooner,” and (4) the trial transcripts were not “timely” provided to Petitioner to be able to “complete additional appeals.” (Doc. 4 at 12.)
Petitioner's habeas Petition is untimely unless equitable or statutory tolling applies. //
B. Equitable Tolling
The one-year limitation period may be subject to equitable tolling in “appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating “the threshold necessary to trigger equitable tolling [under AEDPA] is very high.”). In the Ninth Circuit, a petitioner is entitled to equitable tolling only if he shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotations and citations omitted). Petitioner bears the burden of establishing that equitable tolling is warranted. Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.”).
In regard to the first prong, a petitioner must demonstrate that “he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith v. Davis, 953 F.3d 582, 598-99 (9th Cir. 2020). The second prong is met “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing[.]” Id. at 600; see also Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (holding a prisoner must show that the “extraordinary circumstances” were the cause of his untimeliness). In evaluating whether an “extraordinary circumstance” exists, the Court “must decide the issue based on all the circumstances of the case before it.” Smith, 953 F.3d at 600 (internal quotations and citations omitted). “The grounds for equitable tolling are highly fact-dependent.” Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (quoting Sossa v. Diaz, 729 F.3d 1225, 1237 (9th Cir. 2013)). Notably, a petitioner's pro se status, ignorance of the law, or lack of legal sophistication does not constitute extraordinary circumstances justifying equitable tolling. See Rasberry, 448 F.3d at 1154 (holding a pro se petitioner's ignorance of the law or lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling); Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (“We have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness.”) (internal quotations and citation omitted).
a. Transfer Between Facilities and Medical Rehabilitation
Petitioner first argues his Petition should not be barred by the statute of limitations because he was “moved to two different facilities” and has “been going through medical/rehabilitation for a crushed heel injury[.]” (Doc. 4 at 12.) Petitioner fails to explain how the movement between facilities and the rehabilitation of his heel injury prevented him from timely filing a habeas petition. Petitioner additionally has not demonstrated that the facility transfers and medical rehabilitation were “extraordinary circumstances.” See Roy, 465 F.3d at 969, as amended (“Equitable tolling is applicable only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time”) (internal quotations and citation omitted). Further, Petitioner states his heel injury “occurred just prior to the trial” and that the rehabilitation of that injury impacted his ability to file a habeas petition within the one-year limitation period. (Doc. 4 at 12.) However, Petitioner filed a PCR notice on September 15, 2020, assumably while suffering from the same heel injury. Petitioner fails to explain how he was able to access and file other court documents but not a federal habeas petition.
Petitioner proffers no additional reasoning or evidence to explain his delay in filing, nor has he shown that he has been “pursuing his rights diligently,” as required for equitable tolling. See Holland, 560 U.S. at 649. What is more, after the Arizona Court of Appeals denied Petitioner's direct appeal, Petitioner did not file a motion for reconsideration or a petition for review in the Arizona Supreme Court. Furthermore, after filing a PCR notice, the superior court gave Petitioner over one month to file a PCR petition, to which one was never filed. (Doc. 9-1, Exhs. G, H.) Petitioner has failed to show that “he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Davis, 953 F.3d at 598-99.
b. Lack of Legal Assistance and Law Library Access
Petitioner next argues the one-year statute of limitations should not bar his petition because he did not have “access to help or support to assist with completing paperwork[,] [i]ncluding no access to legal sites or law library.” (Doc. 4 at 12.) Petitioner further states, “Covid started in March 2020, and impacted everything and everyone. Including no access to items needed to complete this process sooner.” (Id.) Similar to his last argument, Petitioner fails to sufficiently explain the impediments to filing, the duration of those specific impediments, or his own efforts to file despite the barriers. Petitioner's arguments are vague and fail to demonstrate any extraordinary circumstance prevented him from timely filing his habeas Petition.
Further, a federal habeas corpus petition does not require a petitioner to argue or cite law when raising a claim. Rather, it requires a petitioner to “[j]ust state the specific facts that support your claim.” (See e.g., Doc. 4 at 6.) The ordinary difficulties inherent in prison life do not constitute extraordinary circumstances sufficient to toll the AEDPA limitations period. Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005) (stating that “[e]ach of the cases in which equitable tolling has been applied have involved wrongful conduct, either by state officials or occasionally, by the petitioner's counsel.”); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (“Ordinary prison limitations on Ramirez's access to the law library and copier.. .were neither ‘extraordinary' nor made it ‘impossible' for him to file his petition in a timely manner.”).
Petitioner's argument that the COVID-19 pandemic impacted his ability to timely file his habeas petition is also inadequate to warrant equitable tolling. This Court recently acknowledged, “[a]lthough a [petitioner] may be able to show that circumstances related to COVID-19 are sufficiently extraordinary to trigger equitable tolling, the COVID-19 pandemic does not automatically warrant equitable tolling for any [petitioner] who seeks it on that basis, because the [petitioner] must establish.that the COVID-19 pandemic specifically prevented him from filing his claim.” Smith v. Cmty. Bridges Inc., No. CV-22- 01974-PHX-DLR, 2024 WL 37967, at *3 (D. Ariz. Jan. 3, 2024) (internal quotations and citation omitted). Here, Petitioner fails to plead that he was pursuing his rights diligently and that the COVID-19 pandemic specifically prevented him from timely filing his habeas Petition. Petitioner's only explanation of his argument is that “Covid-19 started in March 2020, and impacted everything and everyone[,] [i]ncluding no access to items needed to complete this process sooner.” (Doc. 4 at 12.) Petitioner fails to explain how he was able to file his PCR notice in September 2020 despite the pandemic but was unable to file his original habeas petition until July 2023. On this record, Petitioner has failed to show that “he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Davis, 953 F.3d at 598-99.
c. Trial Transcripts
Petitioner lastly argues he was “not provided with the trial transcripts timely while incarcerated to be able to complete additional appeals.” (Doc. 4 at 12.) To the extent that Petitioner is arguing his Petition is not barred under 28 U.S.C. § 2244(d)(1)(D), as he was not timely provided trial transcripts, the argument is unavailing. The statute holds that the one-year limitation period starts running from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Assuming for the sake of argument that Petitioner could have only discovered his claims on the date he received trial transcripts, his Petition is still untimely. Petitioner does not provide the Court with the date he acquired the transcripts, nor does he explain why he could only discover the claims by physically possessing his trial transcripts. Petitioner was present throughout his entire trial. See United States v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004) (“Surely due diligence requires that [the petitioner] at least consult his own memory of the trial proceedings. His decision not to do so does not bespeak due diligence.”).
Further, Petitioner's habeas claims are about happenings at the time of his conviction-the victim's testimony was inconsistent and not credible, a witness with a felony conviction should not have been allowed to testify at trial, police misconduct and flawed forensic evidence, ineffective assistance of counsel, and prosecutorial and judicial misconduct. (Doc. 4.) There is nothing new about those claims. See Matus-Leva v. United States, 287 F.3d 758, 761 n. 3 (9th Cir. 2002) (where claim was litigated at time of conviction, it is not a fact newly discovered with due diligence).
Petitioner proffers no additional reasoning or evidence to explain his delay in filing, nor has he shown that he has been “pursuing his rights diligently,” as required for equitable tolling. See Holland, 560 U.S. at 649. After presenting one issue on direct appeal, Petitioner did not file any further motions for reconsideration or petitions for review. Moreover, while Petitioner filed a PCR notice (Doc. 9-1, Exh. E), he failed to file a PCR petition and his Rule 32 proceedings were dismissed (Doc. 9-1, Exh. H). Petitioner then waited over one year to file the instant habeas Petition and failed to provide convincing argument to excuse the delay.
Taken together, Petitioner fails to explain the length of time for which he did not have access to court documents, the law library, or his own trial transcripts. Without more, Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from timely filing this Petition. Accordingly, equitable tolling is unavailable to Petitioner.
C. Statutory Tolling
The AEDPA also provides for statutory tolling during the time “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). As discussed, supra, on September 15, 2020, Petitioner filed a notice of PCR in the superior court (Doc. 9-1, Exh. E), which tolled the statute of limitations until the PCR court denied the notice on April 21, 2021 (Doc. 9-1, Exh. H). The statute of limitations then ran for one year, until April 22, 2022. However, Petitioner did not mail his original habeas petition until July 17, 2023. (Doc. 1.) Therefore, Petitioner was more than one year late in filing his habeas Petition, despite the statutory tolling.
D. Actual Innocence
A time-barred federal habeas petition may also be considered by this Court if a petitioner can make a showing of “actual innocence.” See McQuiggin v. Perkins, 569 U.S. 383, 391-96 (2013) (holding that the “actual innocence gateway” extends to petitions that are time-barred under the AEDPA); see also Schlup v. Delo, 513 U.S. 298 (1995) (applying an “actual innocence gateway” to federal habeas procedural bars); Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (“[A] claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits.”). Under Schlup, a petitioner seeking federal habeas review under the actual innocence gateway must establish his factual innocence and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998). 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, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). “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.
Petitioner claims he is “factually innocent of both charges” and that “this was not a crime but an honest accident[.]” (Doc. 4 at 12.) At trial, Petitioner's defense was that while the victim was sleeping, “a glass fell on her face and cut[] her.” (Doc. 9-1 at 146.) In the instant proceedings, Petitioner does not provide the Court with new evidence, let alone new evidence that more likely than not would have prevented a jury from convicting him of the offenses underlying the Petition. See McQuiggin, 569 U.S. at 399; Schlup, 513 U.S. at 324. Nor does the record otherwise contain such evidence.
Accordingly, Petitioner cannot pass through the actual innocence gateway to excuse the untimeliness of his federal habeas Petition.
CONCLUSION
The Court concludes Petitioner's habeas Petition was untimely filed and neither equitable tolling, statutory tolling, nor the actual innocence gateway, apply to render the filing of the Petition as timely. The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS THEREFORE RECOMMENDED that Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 4) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not shown jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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 Rule 4(a)(1), Federal Rules of Appellate Procedure, 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(a), 6(b) and 72. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.