Opinion
CV-22-00486-PHX-JAT (JZB)
07-29-2022
Christopher Mange, Petitioner, v. David Shinn, et al., Respondent.
REPORT & RECOMMENDATION
John Z. Boyle, United States Magistrate Judge
TO THE HONORABLE JAMES A TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Christopher Mange has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (Doc. 1.)
I. Summary of Conclusion.
On October 20, 2017, the Pinal County Superior Court denied relief in Petitioner's first and only PCR proceeding. Petitioner's conviction became final 35 days later on November 25, 2017. The habeas petition was due by November 26, 2018, but Petitioner did not file the Petition until March 28, 2022. The Court finds that statutory and equitable tolling are not merited. Therefore, the Court will recommend the Petition be denied and dismissed with prejudice.
II. Background.
A. Conviction & Sentencing.
The Pre-Sentence Investigation Report summarized the facts of the case as follows:
On January 8, 2016, Officer Ricks received a telephone call from Rafael Briseno, in reference to a sex offense. Rafael advised that he lived in Oceanside, California and had been contacted by his daughter, M.B., who resides on West Dove Mesa Drive, via Facebook that her cousin, Christopher Mange, had touched her inappropriately.
M.B. was interviewed. . . She reported that on July 30, 2015, she and Christopher were in his room lying on his bed watching a movie. Christopher began to massage her shoulders and she began to doze off in a light sleep. She felt Christopher's hands move from her shoulders to her back, then to her waist, and ended with his hands touching her buttocks underneath her clothing. Christopher got up from the bed and attempted to lock the bedroom door. She got out of the bed and left the room before he could get the door locked. M.B. advised that Christopher may have touched her sister B.B. as well.
Officer Ricks, spoke with B.B. and she advised that when she was 13 years old and the family lived in Superior, Arizona, she was in her room lying on her stomach on her bed. Christopher entered the room and requested that she turn over. She was confused by his request, and while she were half asleep, Christopher turned her over onto her back and placed is hands down her pants and began touching her vagina. B.B. says she got out of the bed and left the room. Years later, when she was a freshman in high school she received a letter of apology from Christopher. In October 2015, B.B. said she went to the Buckeye Emergency Room for a medical condition. She was accompanied by Christopher. While she waited to be seen, she requested to use Christopher's cell phone to play a game. While in possession of Christopher's phone, she notice[d] a picture of her on his cell phone. The picture was taken at an unknown time wile she was asleep. She was wearing cheetah print shorts, and the photo was taken in a way that exposed her vagina. Prior to Thanksgiving 2015, B.B. says she was asleep in her room and she felt someone rubbing their hands all over her body. She was touched over her clothes on her breast, legs, and back. When she awoke Christopher was touching her. She pulled the covers over herself and Christopher left her room. She confronted Christopher and he apologized and admitted that he needed help.
A short time later, Christopher arrived home. Officer Ricks asked him about touching M.B.'s buttocks under her clothes. Christopher admitted to the behavior. When asked about the photograph of B.B. on his cell phone, he admitted to taking the photo, but he says he deleted it the day it was taken. Christopher stated that he would consent to a search of his phone. He was placed under arrest and transported to the Buckeye Police Station. During his interview at the station, Christopher admitted to committing the acts told by both M.B. and B.B.; however, he advised that the photo he took of B.B. did not reveal her vagina, but her buttocks. Christopher was booked in the Maricopa County Jail.(Doc. 9-1, Ex. D, at 15-16.)
On April 4, 2016, a Pinal County Grand Jury indicted Petitioner with one count of child molestation. (Doc. 9-1, Ex. A, at 4.) On November 28, 2016, Petitioner entered into a plea agreement to plead guilty to one count of child molestation. (Doc. 9-1, Ex. B, at 6.) On February 13, 2017, Petitioner was sentenced to a stipulated term of 9 years of imprisonment. (Doc. 9-1, Ex. E, at 23.)
B. Post-Conviction Review.
1. Post-Conviction Relief Proceeding.
On February 27, 2017, Petitioner filed a petition for post-conviction relief (PCR) in the Pinal County Superior Court that raised four claims. (Doc. 9-1, Ex. F, at 28.) On March 3, 2017, the court treated the Petition as a notice of PCR relief and appointed an attorney to represent Petitioner. (Doc. 9-1, Ex. G, at 36.) On June 12, 2017, Petitioner's counsel submitted a notice stating no claims could be raised under Arizona Rule 32 of Criminal Procedure. (Doc. 9-1, Ex. H, at 39.) On June 16, 2017, the Superior Court set a deadline of August 1, 2017, for petitioner to file a supplemental pro se rule 32 petition. (Doc. 9-1, Ex. I, at 43.) On October 20, 2017, the Superior Court noted that petitioner did not file a supplemental petition and dismissed the petition for post-conviction relief on two grounds: (1) failure to comply with Rule 32.5 of the Arizona Rules of Criminal Procedure; and (2) failure to raise a colorable claim under Rule 32.6(c) of the Arizona Rules of Criminal Procedure. (Doc. 9-1, Ex. J, at 46.)
2. Motion to Correct Sentencing.
On June 7, 2021, Petitioner filed a “Motion to Correct Sentencing In Accordance To HB2318 (First Time Offenders) To Comply With The Constitution(s) Of Both The United States And Arizona's Constitution.” (Doc. 9-1, Ex. K, at 49.) On June 17, 2021, the State responded, arguing Petitioner is not entitled to relief on two grounds: (1) House Bill 2318 was passed to change A.R.S. § 13-703, but Petitioner was sentenced pursuant to A.R.S. § 13-705(J), meaning the House Bill is inapplicable and provides no relief; and (2) Even if House Bill 2318 applied to Petitioner, “he would not be entitled to retroactive application.” (Doc. 9-1, Ex. L, at 53-54.) On July 6, 2021, the Superior Court noted that Petitioner did not file a reply to the state's response and denied the motion “[f]or the reasons cited by the State.” (Doc. 9-1, Ex. M, at 57.)
On July 7, 2021, Petitioner filed a reply to the state's response. (Doc. 9-1, Ex. N, at 59.) On July 26, 2021, Petitioner filed a “Motion To Strike Decision of 7/6/2021 As Defendant Did Reply To The States Disposition On 6/28/2021 Via Legal Mail.” (Doc. 91, Ex. O, at 65.) On August 5, 2021, the Superior Court denied the motion to strike on the grounds that the reply was “untimely under Rule 1.9 of the Arizona Rules of Criminal Procedure. Furthermore, the Court has reviewed the Reply, and it would not change the Court's ruling.” (Doc. 9-1, Ex. P, at 74.)
On August 19, 2021, Petitioner filed a “Motion for Proposed Order To Obtain Oral Arguments In Regards To Rule 1.9(c) of Arizona Rules of Criminal Procedure.” (Doc. 9-1, Ex. Q, at 76.) On August 31, 2021, the Superior Court denied the motion for oral argument on the grounds that Petitioner “fails to state good cause for granting the request.” (Doc. 9-1, Ex. R, at 79.)
On September 10, 2021, Petitioner filed a petition for review concerning the Superior Court's “Ruling of Denial for Oral Arguments for Evidentiary Hearing” in the Arizona Court of Appeals. (Doc. 9-1, Ex. U, at 99.) On October 26, 2021, the Court of Appeals dismissed the petition for review. (Doc. 9-1, Ex. V, at 102.)
On November 3, 2021, Petitioner responded with a “Motion to Commence Oral Arguments in regards to the Original Post Conviction Rule 33.1(a)(b-h); Compliance with the Orders of Honorable Jeffrey P Handler Supreme Court.” (Doc. 9-1, Ex. S, at 81.) On November 15, 2021, the Superior Court denied the motion on the grounds that “Defendant appears to misinterpret the October 26, 2021, Minute Entry from Judge Jeffrey P. Handler. The Minute Entry sets a deadline or Defendant to file a Petition for Review. It does not, as Defendant mistakenly suggests, direct commencement of oral argument.” (Doc. 9-1, Ex. T, at 97.)
On March 1, 2022, Petitioner filed a petition for review in the Arizona Court of Appeals for “Special Action Submission of FRAP 9 Subsection (a)(1)(2)(3)(b)(c) And Memorandum of Points and Authorities that Follow (with good cause showing).” (Doc. 9-1, Ex. X, at 108.) On April 27, 2022, the Court of Appeals dismissed the petition for review. (Doc. 9-1, Ex. Y, at 114.)
III. Petition for Writ of Habeas Corpus.
On March 28, 2022, Petitioner filed the instant habeas petition. (Doc. 1.) In Ground One, Petitioner claims a violation of the eighth amendment for cruel and unusual punishment. (Doc. 1 at 6.) In Ground Two, Petitioner claims due process violations under the fifth and fourteenth amendments. (Doc. 1 at 7.)
On June 13, 2022, Respondents filed their limited response to the petition. (Doc. 9.) On the same day, Petitioner filed a “Request for Preliminary Hearing Pursuant to F. R. C. P. Rule 12(i), With Telephonic Appearance.” (Doc. 10.) On June 20, 2022, the State filed a Response to the hearing request. (Doc. 11.)
The Court will address Petitioner's Motion for Preliminary Hearing in a separate order.
IV. The Petition is Untimely.
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. Time Calculation.
The AEDPA imposes a one-year limitation period, which begins to run “from the latest of . . . the date on which the 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).
On October 20, 2017, the Superior Court denied Petitioner PCR relief. (Doc. 9-1, Ex. J, at 46.) Petitioner did not file a motion for reconsideration with the Arizona Court of Appeals. (Doc. 9-1, Ex. J, at 47.) Therefore, his conviction became final 35 days later, on November 25, 2017. See former Ariz. R. Crim. P. 32.9(c) (providing that a petition for review must be filed within 30 days); former Ariz. R. Crim. P. 1.3(a) (five calendar days added for mailing); Ariz. R. Crim. P. 1.3 (stating that “whenever a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and such service is allowed made by mail, 5 days shall be added to the prescribed period.”); State v. Savage, 117 Ariz. 535 (1978) (applying Rule 1.3(a) to deadline for petition for review from denial of motion for rehearing in PCR proceeding). Therefore, the one-year limitations period commenced on November 26, 2017, and expired one year later unless tolling applies. See Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the AEDPA limitations period begins to run on the day after the triggering event pursuant to Fed.R.Civ.P. 6(a)).
The Petition was due on November 26, 2018, absent statutory tolling. Petitioner filed the Petition on March 28, 2022.
B. Statutory Tolling.
Petitioner is not entitled to statutory tolling. Petitioner's limitations period expired on November 26, 2018, a year after he failed to seek PCR review in the Arizona Court of Appeals. Petitioner's Motion to Correct Sentencing filed on June 7, of 2021 (doc. 9-1, Ex. K, at 49) did not statutorily toll or restart his deadline. Once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
While a petitioner is entitled to statutory tolling during the time that he is seeking “one full round” of collateral review in state court, a successive PCR petition must be properly filed to toll the limitations period. See 28 U.S.C. § 2244(d)(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.”); Ariz. R. Crim. P. 32.1(d)-(h), 32.4(a) (successive PCR proceedings are limited to certain claims). Petitioner's Motion to Correct Sentencing was not properly filed as a successive PCR petition. Ariz. R. Crim. P. 32.1 (g) permits relief if “there has been a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence.” HB 2318 did not apply to Petitioner's case. In his Motion, Petitioner argued that under HB 2318, he was entitled to a new sentence, release from imprisonment, and commencement of probation. (Doc. 9-1, Ex. K, at 49.) The State objected to the request. (Doc. 9-1, Ex. L, at 53.) The State argued that HB 2318 amended A.R.S. § 13-703 and that Petitioner was not sentenced under that statute. The State also argued the amendment applied only to offenses committed after the effective date of the statute, which was July 25, 2021. (Id.) The Court denied relief “for the reasons cited by the State.” (Doc. 9-1, Ex. M, at 58.) Petitioner cannot demonstrate his Motion was properly filed because there was no “significant change in the law” applicable to his case. Consequently, Petitioner's Motion neither restarted nor tolled his deadline to file a timely habeas petition.
See https://www.azleg.gov/legtext/55Leg/1R/laws/0107.pdf (“Section 13-703, Arizona Revised Statutes, as amended by this act, applies only to offenses committed on or after the effective date of this act.”) (last visited July 29, 2022).
C. Equitable Tolling.
Equitable tolling is not merited for Petitioner's claims. “A petitioner who seeks equitable tolling under AEDPA's 1-year filing deadline must show that (1) some ‘extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The Petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Mathews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, accounts for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must show that “the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).
Here, the Petition was due by November 26, 2018, but was not filed until March 28, 2022, over three years later. Petitioner fails to demonstrate extraordinary circumstances were the cause of the untimely filing of his Petition. After Petitioner's first PCR proceedings concluded in 2017, Petitioner had the ability to file a habeas petition. Instead, Petitioner initiated a Motion to Correct Sentencing before filing a habeas petition in this Court. Nor does Petitioner allege that a fundamental miscarriage of justice would occur unless this Court applies equitable tolling to excuse his untimely claims. See Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). See also Jones v. Taylor, 763 F.3d 1242, 1247 (9th Cir. 2014) (“In order to pass through the Schlup actual innocence gateway, a petitioner must demonstrate that in light of new evidence, it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt.” (cleaned up)). Petitioner does not present evidence of actual innocence.
The Court assumes without deciding that an actual innocence claim would be available to Petitioner. See Smith v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir. 2007) (“We are aware of a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas.... For purposes of our analysis, however, we assume without deciding that the actual innocence gateway is available to [the plea-convicted habeas petitioner].”)).
Thus, Petitioner fails to demonstrate extraordinary circumstances were the cause of the untimely filing of those claims, and there is no excuse for Petitioner's untimely claims. Accordingly, the Court will recommend that Petitioner's claims be dismissed with prejudice as untimely.
V. Evidentiary Hearing.
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).
VI. Conclusion.
Based on the above analysis, the Court finds that the Petition is untimely.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be DENIED because the dismissal is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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. The parties shall have 14 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 14 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.