Opinion
CV-20-02479-PHX-DLR (ESW)
03-31-2021
Ted James Mayr, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
Pending before the Court is Ted James Mayr's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition (Doc. 1) as untimely.
I. BACKGROUND
In 2012, Petitioner entered into two separate plea agreements in which Petitioner pled guilty to the following Arizona state crimes: (i) burglary in the second degree, a class 3 felony with one prior felony conviction; (ii) unlawful flight from law enforcement vehicle, a class 5 felony; and (iii) second-degree murder, a class 1 dangerous felony. (Doc. 8-1 at 10-12, 33-35). The trial court accepted Petitioner's guilty pleas. On July 25, 2013, the trial court sentenced Petitioner to 7.5 years in prison on the burglary count, a two-year prison term on the unlawful flight count, and a twenty-two year prison term on the second-degree murder count. The sentences on the burglary and unlawful flight counts are to be served concurrently, but consecutively to the second-degree murder count. (Id. at 14-17, 37-40).
On December 10, 2013, Petitioner filed two of-right Notices of Post-Conviction Relief (“PCR”) regarding all three of his convictions. (Id. at 44-51, 53-55). The trial court consolidated the PCR proceedings and appointed counsel, who could not find a colorable claim for relief. (Id. at 57-59, 61, 65-66). Petitioner filed a pro se PCR Petition that the trial court dismissed on November 21, 2014. (Id. at 71-142; Doc. 8-2 at 20). Petitioner did not seek further review by the Arizona Court of Appeals.
On May 15, 2019, Petitioner filed a “Motion to Clarify the Sentencing Transcripts Dated 7/25/2013.” (Doc. 8-2 at 22-29). Following a status conference, the trial court issued a minute entry stating that the Department of Corrections should reflect in their records that the prison terms on the burglary and unlawful flight counts run consecutively to the twenty-two year sentence on the second-degree murder count. (Id. at 31-32). Petitioner sought further review by the Arizona Court of Appeals. In January 2020, the Arizona Court of Appeals found that it lacked jurisdiction over Petitioner's appeal. (Id. at 38-39, 41-42). The Arizona Supreme Court denied further review. (Id. at 44).
In December 2020, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief. The Court screened the Petition and ordered Respondents to file an Answer. (Doc. 5). Respondents filed their Answer (Doc. 8) on February 16, 2021, and Petitioner filed a Reply (Doc. 9) on March 15, 2021.
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, 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 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). For purposes of the limitations period, “[f]inal judgment in a criminal case means sentence. The sentence is the judgment.” Burton v. Stewart, 549 U.S 147, 156 (2007) (internal quotation marks and citation omitted).
Typically “direct review” means a defendant's direct appeal following his or her convictions and sentencing. But under Arizona law, a defendant in a non-capital case who pleads guilty waives his or her right to a direct appeal. See Ariz. Rev. Stat. § 13- 4033(B). A plea-convicted defendant, however, is entitled to a Rule 32 of-right proceeding. See Ariz. R. Crim. P. 32.1 and 32.4.
Under Ninth Circuit case law, an Arizona defendant's Rule 32 of-right proceeding is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A). See Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007). The Ninth Circuit explained that “treating the Rule 32 of-right proceeding as a form of direct review helps make the Arizona Constitution's guarantee of ‘the right to appeal in all cases' a functioning reality rather than a mere form of words.” Id. at 717. Therefore, when an Arizona petitioner's Rule 32 proceeding is of-right, AEDPA's statute of limitations does not begin to run until the conclusion of review or the expiration of the time for seeking such review. See id.
Here, Petitioner was sentenced on July 25, 2013. (Doc. 8-1 at 14-17, 37-40). On November 21, 2014, the trial court filed its minute entry denying Petitioner's of-right PCR Petition. (Doc. 8-2 at 20). The Arizona Rules of Criminal Procedure provide a thirty-day deadline for filing a petition for review following the final decision of the trial court on a PCR Petition. Ariz. R. Crim. P. 33.16(a)(1) (formerly Rule 32.9(c)). In addition, when the trial court's minute entry was issued, Ariz. R. Crim. P. 1.3(a) provided that when “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 the notice or paper is served” by certain methods, such as U.S. mail, “five calendar days shall be added to the prescribed period.”The Arizona Supreme Court and Arizona Court of Appeals have broadly applied Ariz. R. Crim. P. 1.3. to extend the time to seek appellate review of trial court decisions. See, e.g., State v. Savage, 573 P.2d 1388, 1389 (Ariz. 1978) (applying Ariz. R. Crim. P. 1.3 to extend the time for filing a petition for review of trial court's denial of motion for rehearing in PCR proceeding by five days because the copy of the trial court's order denying the motion for rehearing was mailed); State v. Zuniga, 786 P.2d 956, 957 (Ariz. 1990) (“We therefore hold Rule 1.3 extends 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. Herrera, 905 P.2d 1377, 1380 (Ariz.Ct.App. 1995) (“Because the trial court mailed to defendant the minute entry granting the extension of time [to file a petition for review of trial court's denial of PCR relief], defendant was entitled to an additional five days to comply with the court's order.”).
Effective January 1, 2018, Arizona Rule of Civil Procedure 1.3 was amended to exclude from the five-days-after-mail rule “the clerk's distribution of notices, minute entries, or other court-generated documents.” Ariz. R. Crim. Proc. 1.3(a)(5).
The undersigned presumes that the Maricopa County Clerk of Court mailed the trial court's order denying relief on November 21, 2014, which is the date the order was filed. Applying the thirty-day period prescribed by Ariz. R. Crim. P. 33.16(a)(1) and the additional five-day period formerly prescribed by Ariz. R. Crim. P. 1.3, the deadline for Petitioner to file a petition for review in the Arizona Court of Appeals was December 26, 2014. The undersigned finds that Petitioner's convictions became final on December 26, 2014, the date the time to seek review expired. Therefore, the one-year statute of limitations began running on December 27, 2014. Summers, 481 F.3d at 717; 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, 1246 (9th Cir. 2001) (applying the “anniversary method” of Rule 6(a) of the Federal Rules of Civil Procedure to calculate the expiration date of AEDPA's one-year statute of limitations). Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a habeas petition expired on Monday, December 28, 2015, rendering the Petition untimely.
The date one year from the finality of Petitioner's convictions and sentences was Saturday, December 26, 2015. Pursuant to Rule 12 of the Rules Governing Section 2254 Cases and Fed.R.Civ.P. 6(a)(1)(C), the deadline to file a habeas petition was extended to Monday, December 28, 2015 as that is the next day that is not a Saturday, Sunday, or legal holiday.
1. Statutory Tolling is Unavailable
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). Because the limitations period had expired on December 28, 2015, Petitioner's “Motion to Clarify the Sentencing Transcripts” filed in the trial court on May 15, 2019 had no statutory tolling effect even if it could be construed as a collateral review petition. Accordingly, this federal habeas proceeding is untimely unless equitable tolling applies.
2. Equitable Tolling is Unavailable
Regarding equitable tolling, Petitioner has the burden to show that extraordinary circumstances beyond Petitioner's control made it impossible for him to file a timely federal petition. Roy, 465 F.3d at 969; Gibbs, 767 F.3d at 888 n.8. 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.”).
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, 353-54 (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, because the limitations period was not statutorily or equitably tolled, the Petition is untimely.
B. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the Untimeliness of the Petition
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 that Petitioner may assert the Schlup gateway, Petitioner has failed to satisfy his burden of producing “new reliable evidence” of his actual innocence. 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.'”). McQuiggin, 133 S.Ct. at 1936 (quoting Schlup, 513 U.S. at 316).
Moreover, it is unclear “whether the Schlup actual innocence gateway always applies to petitioners who plead guilty.” 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].”). Decisions in which the Ninth Circuit or United States Supreme Court have considered gateway claims of actual innocence in a plea context involved subsequent case law that arguably rendered the defendant's acts non-criminal. See, e.g. Bousley v. United States, 523 U.S. 614, 621-23 (1998); Vosgien v. Persson, 742 F.3d 1131, 1134-35 (9th Cir. 2013); U.S. v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) 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 Petition is justified by a plain procedural bar.
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.