Opinion
CV-20-02358-PHX-MTL (ESW)
07-02-2021
Michael Nelson, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Michael Nelson's (“Petitioner”) Third Amended “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Third Amended Petition”) (Doc. 15). For the reasons explained herein, the undersigned recommends that the Court dismiss the Third Amended Petition (Doc. 15) as untimely.
I. BACKGROUND
On July 10, 2017, Petitioner pled guilty in the Superior Court of Arizona to (i) Burglary in the Second Degree, a class 3 felony; (ii) Aggravated Assault- Serious Physical Injury, a class 3 felony; and (iii) Manslaughter, a class 2 dangerous felony. (Doc. 22-1 at 23-25). The trial court accepted Petitioner's guilty pleas, and on August 28, 2017, the trial court sentenced Petitioner to a total of 10.5 years in prison. (Id. at 27-28, 30-35).
On November 9, 2020, Petitioner filed in the trial court a document captioned “Rule 32 (33) Un-Timely Petition Good Cause Showing.” (Doc. 22-1 at 39-42). The document was filed under a criminal case number that had been dismissed in September 2016. The trial court dismissed Petitioner's filing. (Id. at 44). On February 11, 2021, the Arizona Court of Appeals dismissed Petitioner's request for review for failure to file a rule-compliant Petition for Review. (Id. at 46).
In December 2020, Petitioner initiated this federal habeas proceeding. (Doc. 1). The Court directed the Clerk of Court to serve the Third Amended Petition (Doc. 15) on Respondents. (Doc. 16). Respondents filed their Limited Answer on May 17, 2021. (Doc. 22). Petitioner filed a Reply (Doc. 24) on June 4, 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 PCR proceeding. Ariz. R. Crim. P. 33.1, 33.4 (formerly Ariz. R. Crim. P. 32.1, 32.4).
Under Ninth Circuit case law, an Arizona defendant's of-right PCR 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 PCR 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 August 28, 2017. (Doc. 22-1 at 30-35). Pursuant to former Arizona Rule of Criminal Procedure Rule 32.4, Petitioner had ninety days from sentencing to file his PCR notice. Ninety days from the August 28, 2017 sentencing is November 26, 2017. However, because November 26, 2017 was a Sunday, Petitioner's deadline for filing a PCR notice was November 27, 2017. Ariz. R. Crim. P. 1.3(a)(2). Petitioner did not file a PCR notice within this timeframe. Therefore, Petitioner's judgment of conviction became final on November 27, 2017 and the limitations period commenced on November 28, 2017. Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a habeas petition expired on November 27, 2018, rendering this proceeding untimely. 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).
Prior to January 1, 2020, Rule 32 of the Arizona Rules of Procedure applied to a defendant's collateral review proceeding regardless of whether the defendant was convicted at trial or pled guilty or no contest. This procedure was changed in amendments effective January 1, 2020. Rule 32 now only governs collateral review proceedings for defendants who were convicted at trial. Collateral review proceedings for defendants who pled guilty or no contest are now governed by Rule 33.
1. Statutory Tolling Does Not Apply
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 November 27, 2018, Petitioner's “Rule 32 (33) Un-Timely Petition Good Cause Showing” filed in the trial court on November 9, 2020 had no statutory tolling effect. (Doc. 22-1 at 39-42). 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 Third 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.”). Because 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.'”).
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); United States v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Third Amended Petition (Doc. 15) 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 Third Amended 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.