Opinion
CV-22-8088-PCT-DLR (JFM)
08-26-2022
Preston Earl Milks, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. PROCEEDINGS AT TRIAL
Petitioner was indicted in Mohave County Superior Court case CR-2018-01352 on charges of armed robbery, aggravated robbery, kidnapping, aggravated assault, and misconduct regarding body armor, committed on January 1, 2018. (Exh. A, Indict. 1352.)He was subsequently indicted in that court's case CR-2018-01582 on the charges of armed robbery, kidnapping, aggravated assault, and misconduct regarding body armor committed on March 10, 2018. (Exh. A, Indict. 1582.) An Addendum (Exh. C) to the latter added allegations of dangerousness and various aggravating factors. Additional charges were brought against Petitioner in the same court in other cases, CR-2018-01099, CR-2018-01108, and CR-2018-01584. (See Exh. E, M.E. 6/12/19.)
(Exhibits herein are referenced as follows: to the Petition (Doc. 1) as “Exh. P-__”; to the Answer (Doc. 12), as “Exh.__ ”; and to the Reply (Doc. 15) as Exh. R- __.”)
A “Rule 11” evaluation was completed and it was determined Petitioner was competent to stand trial, and at the pretrial conference he requested a change of plea hearing. (Exh. D, M.E. 5/20/19.)
Petitioner entered into a written Plea Agreement (Exh. F) addressing all five of these cases. Petitioner agreed to plead guilty to two counts of aggravated assault in case 1352, and one count of aggravated assault in case 1582. The parties stipulated to an effective term of fifteen years, with concurrent 7.5 year terms on the two 1352 charges, and a consecutive 7.5 year term on the 1582 charge. In exchange, all other counts in the five cases were to be dismissed. His plea was accepted. (Exh. E, M.E. 6/12/19.)
On July 12, 2019 Petitioner was sentenced in accordance with the plea agreement. (Exh. G, Sentence 7/12/19.)
B. PROCEEDINGS ON DIRECT APPEAL
Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz. R. Crim. P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
C. PROCEEDINGS ON POST-CONVICTION RELIEF
Twenty months after sentencing, on March 10, 2021, Petitioner commenced his first post-conviction relief (PCR) proceeding by filing a PCR Notice (Exh. H) dated March 2, 2021 and postmarked March 5, 2021. The Notice conceded it was untimely, asserting no fault due to Petitioner's lack of legal knowledge and need to obtain help. (Id. at 2,3.) It asserted an intent to raise claims of newly discovered material facts, and that untimeliness was not Petitioner's fault.
The PCR court summarily dismissed the Notice as untimely, finding that Petitioner's lack of legal knowledge did not excuse the delay and Petitioner “did not explain the newly discovered material facts and when it was discovered in order for the Court to determine if the untimely notice was filed in a reasonable time.” (Exh. I, Ruling 3/30/21 at 2.)
Nonetheless, on April 27, 2021, Petitioner filed a Petition for Post-Conviction Relief (Exh. J) raising the same two claims, asserting that the newly discovery facts were the discovery that imposition of consecutive sentences was “double punishment,” and his mental issues prevented him from discovering such facts previously. He also argued that counsel had not raised his mental health issues and thus proper Rule 11 tests were not performed (although he reports Rule 11 testing was conducted in the jail), resulting in an unknowing plea and a violation of due process. He referenced assignment to special education classes, a classification of “mental retardation” and current treatment for “bipolar and depression.” He also argued counsel was ineffective in failing to challenge the consecutive sentences, failed to obtain a mitigation specialist.
The PCR court again summarily dismissed the Petition as untimely, finding no showing of newly discovered facts, or sufficient reason for the untimely filing. The PCR court further denied on the merits the challenge to the consecutive sentences, lack of mental health evaluations, and failure to consider his mental health in mitigation. (Exh. K, Ruling 5/3/21.)
Petitioner sought review by the Arizona Court of Appeals (Exh. L), which granted review but denied relief, finding Petitioner's “conclusory assertions, unsupported by evidence or citation to legal authority,” were insufficient to support his Petition for Review, and insufficient to support his PCR petition. (Exh. M, Mem. Dec. 10/7/21.) Petitioner did not timely seek review and the Arizona Court of Appeals issued its Mandate on November 18, 2021 (Exh. N). Petitioner subsequently filed a Petition for Review (Exh. O) by the Arizona Supreme Court, which was summarily denied on April 11, 2022 (Exh. P).
D. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 17, 2022 (Doc. 1). The Petition is dated the same date. (Id. at 13.) Petitioner's Petition asserts the three grounds for relief:
In Ground One, Petitioner alleges he received ineffective assistance of counsel because counsel “did not mention [Petitioner's] severe mental issues at any stage of the case” and “allowed an illegal sentence to be handed down.” In Ground Two, Petitioner claims his consecutive sentences are illegal. In Count Three, Petitioner claims his mental health was not properly evaluated and he was unable to sign a plea.(Order 6/3/22, Doc. 6 at 2.)
Response - On July 20, 2022 Respondents filed their Limited Answer (Doc. 12), arguing the Petition is barred by the statute of limitations, presents non-cognizable state law claims, raises claims waived by Petitioner's plea, and asserts procedurally defaulted claims.
Reply - On August 16, 2022 Petitioner filed a Reply (Doc. 15). Petitioner argues Respondents make various inaccurate assertions in the Limited Answer, including those relevant to his mental competency to plead guilty, right to counsel in his PCR proceeding, limited legal assistance, the lack of a federal basis for his claims, prejudice resulted from counsel's ineffectiveness, the erroneous imposition of consecutive sentences for a “spree” offense. Petitioner argues for resentencing.
III. APPLICATION OF LAW TO FACTS
A. TIMELINESS
1. One Year Limitations Period
Respondents assert that Petitioner's Petition is untimely. As part of the Anti Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed. Id.
2. Commencement of Limitations Period
a. Conviction Final
The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. § 2244(d)(1)(B)-(D). Except as discussed hereinafter, Petitioner proffers no argument that any of these apply.
For an Arizona noncapital pleading defendant, “Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). “To bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to the Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of his or her intent to file a Petition for Post-Conviction Review.” Id. at 715 (citing Ariz. R.Crim. P. 32.4(a)).
Effecting January 1, 2020, Arizona adopted a new set of rules for post-conviction relief proceedings by pleading defendants (among others). See Ariz. R. Crim. Proc. 33.1 et seq. (Other defendants remained governed by Rule 32.1, et seq. Here, however, Petitioner's time to file an of right PCR Petition expired before the new rules became effective.
Thus, the conviction of a pleading defendant becomes “final” at the conclusion of the first “of-right” post-conviction proceeding under Rule 32, or the expiration of the time to do so.
Here, Petitioner did not file a timely, of-right PCR proceeding (his first PCR notice having been filed on March 10, 2021 (Exh. H)), and thus his conviction became final on Thursday, October 10, 2019, 90 days after his sentencing on July 12, 2019.
Based on the foregoing, Petitioner's conviction became final on October 10, 2019 upon expiration of his time to file a notice of of-right post-conviction relief, began running thereafter, and without any tolling expired on Monday, October 12, 2020. See Fed.R.Civ.P. 6(b) (where last day falls on weekend or holiday, last day is the next court day).
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). Rule 6(a)(1)(A) directs that the “the day of the event that triggers the period” is excluded. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying “anniversary method” under Rule 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later on the anniversary of such adoption, April 24, 1997).
b. Newly Discovered Factual Predicate
Although the conclusion of direct review normally marks the beginning of the statutory one year, section 2244(d)(1)(D) does provide an alternative of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Thus, where despite the exercise of due diligence a petitioner was unable to discover the factual predicate of his claim, the statute does not commence running on that claim until the earlier of such discovery or the elimination of the disability which prevented discovery.
Here, Petitioner argues that because of his mental impairments and lack of assistance he was unable to discover that his consecutive sentences were (purportedly) illegal. Petitioner asserts no facts necessary to this claim tha the did not know, only the legal significance of the facts. Section 2244(d)(1)(D) does not extend to a lack of knowledge of the law, unless it constitutes a decision in Petitioner's own case. Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir. 2005) (distinguishing between discovery of changes or clarifications in state law and discovery of “factual predicate”).
Accordingly, the finality of Petitioner's conviction remains the commencement date for the statute of limitations.
3. Statutory Tolling
Petitioner's Petition (Doc. 1) was filed on May 17, 2022. As discussed above, without any tolling Petitioner's one year habeas limitations period expired on October 12, 2020, making his Petition over 19 months delinquent.
However, the AEDPA provides for tolling of the limitations period when 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).
But here, Petitioner's first PCR proceeding was not commenced until March 10, 2021, when Petitioner filed his PCR Notice (Exh. H). At that time, his one year had been expired for almost five months. Once the statute has run, a subsequent post-conviction or collateral relief filing does not reset the running of the one-year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, Petitioner has no statutory tolling resulting from his PCR proceedings, and his Petition remains 19 months delinquent.
4. Equitable Tolling
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and ‘the extraordinary circumstances were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances ma[de] it impossible to file a petition on time.Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations omitted). Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006).
Extraordinary Circumstances Not Shown - Petitioner argues his untimeliness should be excused because of his mental condition, dependence on assistance and lack of legal training and experience. (Petition, Doc. 1 at 11-12.)
“It is clear that pro se status, on its own, is not enough to warrant equitable tolling.” Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). A prisoner's “proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). See also Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling”). Thus, to the extent that Petitioner's delay resulted from his lack of legal training and experience and related dependence on assistance, he fails to show the required extraordinary circumstances.
On the other hand, "[w]here a habeas petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an ‘extraordinary circumstance beyond [his] control,' and the deadline should be equitably tolled." Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). “However . . .mental incompetence is not a per se reason to toll a statute of limitations. Rather, the alleged mental incompetence must somehow have affected the petitioner's ability to file a timely habeas petition.” Nara v. Frank, 264 F.3d 310, 320 (3rd Cir. 2001), overruled in part on other grounds by Carey v. Saffold, 536 U.S. 214 (2002). “[M]ental illness tolls a statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them. Any other conclusion would perpetuate the stereotype of the insane as raving maniacs or gibbering idiots.” Miller v. Runyon, 77 F.3d 189, 191-192 (7th Cir. 1996) (applying equitable tolling to Rehabilitation Act).
In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit articulated a two-part test to determine whether a mental impairment amounts to an “extraordinary circumstance” warranting equitable tolling. The impairment must have (1) been “so severe that the petitioner was unable personally. to understand the need to timely file.. .a habeas petition,” and (2) “made it impossible under the totality of the circumstances to meet the filing deadline despite petitioner's diligence.” Id. at 1093. This is not “a mechanical rule”; rather, equitable tolling determinations require “a flexibl[e], case-by-case approach.” Id. at 1096 (quoting Holland, 560 U.S. at 650) (internal quotation marks omitted). See Forbess v. Franke, 749 F.3d 837 (9th Cir. 2014) (delusional petitioner believing conviction was a ruse by the FBI to maintain his cover).
Here, Petitioner does not pass the first part of the Bills test because he makes no assertion that he was incapable of understanding the need to timely file a habeas petition, only that he was prevented from discovering the legal basis for his claims. Moreover, he offers no facts to explain how that resulted from any mental impairment, as opposed to his untrained, pro se status.
Diligence Not Shown - Even if extraordinary circumstances prevent a petitioner from filing for a time, equitable tolling will not apply if he does not continue to diligently pursue filing afterwards. “If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.” Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 2000). Ordinarily, thirty days after elimination of a roadblock should be sufficient. See Guillory v. Roe, 329 F.3d 1015, 1018, n.1 (9th Cir. 2003).
Even if these circumstances could be deemed extraordinary and the cause of the delay, Petitioner must “show that he remained diligent through filing,” even though the extraordinary circumstances have ended, and time remained on the otherwise equitably tolled limitations period. Luna v. Kernan, 784 F.3d 650, 652 (9th Cir. 2015). Here, Petitioner had overcome his mental health issues and lack of legal training at least by March 10, 2021 when he filed his PCR Notice (Exh. H) raising his claims. He proffers no reason why he did not promptly file his federal petition, and instead delayed filing for an additional 14 months, until May, 2022.
Petitioner cannot argue it was his need to first exhaust his state remedies. In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Supreme Court analyzed the potential catch-22 between the habeas limitations period and the exhaustion requirement, where a state petitioner has filed a state post-conviction relief proceeding which may ultimately be deemed untimely, thus not properly filed, and resulting in the expiration of his habeas limitations period. “A prisoner seeking state postconviction relief might avoid this predicament, however, by filing a ‘protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” Id. at 416. Petitioner proffers no reason why this avenue was not available to him.
Accordingly, Petitioner fails to show that he is entitled to equitable tolling.
5. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383 (2013). To invoke this exception to the statute of limitations, 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.'” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This exception, referred to as the “Schlup gateway,” applies “only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.' ” Id. at 400 (quoting Schlup, 513 U.S. at 316). “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-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324.
Petitioner makes no claim of actual innocence based on new credible evidence, and the record reveals none. Indeed, Petitioner's claims all stem around the validity of his plea agreement and sentence.
Moreover, it is unclear whether the actual innocence gateway applies to defendants who were not convicted on trial, but pled not guilty or no contest. See Smith v. Baldwin, 510 F.3d 1127, 1140 (9th Cir. 2007). But see Bousley v. U.S., 523 U.S. 614, 624 (1998) (remanding for development of actual innocence to excuse procedural default of pleading federal defendant).
However, "[i]n cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." Bousley, 523 U.S. at 624. Here, Petitioner's plea resulted in dismissal of a variety of other charges, his innocence of which he is obligated to establish to be entitled to the pass through the actual innocence gateway. He also makes no showing of actual innocence on these other charges.
Accordingly, his untimely Petition must be dismissed with prejudice.
B. OTHER DEFENSES
Because the undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations (and resolution of the other defenses could involve addressing the merits of various claims to dispose of assertions of cause and prejudice, waiver, etc.) Respondents' other defenses are not reached.
IV. CERTIFICATE OF APPEALABILITY
The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.
(B) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”