Opinion
CV-20-0427-PHX-DWL (DMF)
07-14-2021
David A. Rhone, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
On December 12, 2019, Petitioner David A. Rhone (“Petitioner”), who is confined in an Arizona Correctional Facility in Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) (“Petition”). In an Order dated March 6, 2020, the Court denied Petitioner's Application to Proceed In Forma Pauperis (Non-Habeas) for failure to use the correct form and granted Petitioner 30 days in which to either file an Application to Proceed In Forma Pauperis (Habeas) or pay the $5.00 filing fee (Doc. 7). Afterward, Petitioner filed a motion for investigation under 28 U.S.C. §§ 526 and 535, which the Court denied in an Order filed on April 23, 2020 (Doc. 9). On April 28, 2020, the Clerk of Court entered Judgment (Doc. 10) after Petitioner failed to either pay the $5.00 filing fee or file an Application to Proceed In Forma Pauperis.
Citation to the record as “Doc. #” without a case number indicates documents as displayed in the official electronic document filing system maintained by the United States District Court, District of Arizona, under Case No. CV-20-0427-PCT-DWL (DMF).
The Petition initiating this matter was docketed by the Clerk of Court on February 26, 2020 (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on December 12, 2019 (Doc. 1 at 11). The undersigned has used December 12, 2019, as the filing date, even though the prison mailbox rule may not apply here given that the mailing date appears to relate to Petitioner's 2019 habeas proceedings, which were dismissed. See Rhone v. Shinn, CV-19-05806-PHX-DWL (DMF) Doc. 1 at 11; Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); footnote 3, infra. In all likelihood, Petitioner mailed the Petition on December 12, 2019, initiating the filing of an earlier matter, Rhone v. Shinn, CV-19-05806-PHX-DWL (DMF), and mailed the Petition for filing in this matter at a date closer to February 26, 2020. Compare Doc. 1; Rhone v. Shinn, CV-19-05806-PHX-DWL (DMF) Doc. 1.
Petitioner filed three previous habeas corpus cases challenging his conviction in CR 2017-111715. See Rhone v. Shinn, CV-19-05806-PHX-DWL (DMF); Rhone v. Shinn, CV-20-00045-PHX-DWL (DMF); Rhone v. Shinn, CV-20-00434-PHX-DWL (DMF). These cases were dismissed because Petitioner failed to pay the filing fee or file an Application to Proceed In Forma Pauperis.
The same day that Judgment was entered, and then unbeknownst to the Court, Petitioner filed a motion for injunction for alleged denial of access to the court (Doc. 11), a motion for an injunction to stop slavery in violation of the Thirteenth Amendment (Doc. 12), a motion for an injunction to prevent systematic injustice (Doc. 13), a motion to accept jurisdiction under 28 U.S.C. § 2254 of equal protection claim (Doc. 14), a motion for injunction to protect Petitioner from injustice (Doc. 15), an Application to Proceed In Forma Pauperis (Doc. 16), an inmate trust fund account statement (Doc. 17), and two amended notices of appeal (Docs. 18 & 19).
In a May 11, 2020 Order, the Court declined to issue a certificate of appealability, denied Petitioner's Motions (Docs. 11-15), and stated that it would vacate the judgment and reopen Petitioner's habeas corpus proceedings if the Ninth Circuit were to remand for that purpose (Doc. 22). On July 13, 2020, the Ninth Circuit dismissed the application for a certificate of appealability so proceedings could continue in this Court (Doc. 24).
Thereafter, the Court vacated entry of Judgment and reopened this case (Doc. 25). The Court granted Petitioner's Application to Proceed In Forma Pauperis, denied Petitioner's remaining motions, and required an answer to the Petition (Id.).
Respondents timely filed a Limited Answer on February 23, 2021 (Doc. 30). After the Limited Answer, Petitioner sent a letter to the Court which, based on its contents, the Clerk accurately docketed both as a motion for clarification (Doc. 31). The Court granted the motion for clarification insofar as providing pertinent information regarding Petitioner's three procedural queries raised in the filing (Doc. 32). In addition, the Court sua sponte granted Petitioner an extension of time for filing his reply in support of his Petition (Id.). Nevertheless, Petitioner did not file a reply and the time to do so has passed.
This matter is on referral to the undersigned United States Magistrate Judge for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 25 at 6). For the reasons set forth below, it is recommended that the Petition (Doc. 1) be dismissed with prejudice due to the untimely filing of the Petition and that a certificate of appealability be denied.
I. GUILTY PLEAS, SENTENCING, AND PCR PROCEEDINGS
On March 16, 2017, Petitioner was charged in Maricopa County Superior Court case number CR2017-111715-001 with criminal damage, a class 2 misdemeanor (Count 1); threatening or intimidating, a class 1 misdemeanor (Count 2); two counts of assault, class 1 misdemeanors (Counts 3 and 4); aggravated assault, a class 4 felony (Count 5); kidnapping, a class 2 felony (Count 6); sexual abuse, a class 5 felony (Count 7); two counts of sexual assault, class 2 felonies (Counts 8 and 9); and two counts of criminal trespass in the first degree, class 1 misdemeanors (Counts 10 and 11) (Doc. 30-1 at 3-6).
On September 8, 2017, Petitioner accepted a plea agreement in which he agreed to plead guilty to one count each of aggravated assault (Count 5 as amended), sexual abuse (Count 7), sexual assault (Count 8 as amended), and attempted sexual assault (Count 9 as amended) (Id. at 8-12). Under the plea agreement, the remaining charges were to be dismissed, the stipulated sentences for Counts 5, 7, and 9 were probation, and the stipulated sentence for Count 8 was not less than ten (10) years imprisonment and not more than fourteen (14) years imprisonment with the imprisonment being flat time (day for day) (Id. at 9). Petitioner and his counsel signed the plea agreement (Id. at 11).
On the same day, September 8, 2017, the superior court judge held a change of plea hearing at which the superior court judge reviewed the plea agreement with Petitioner, advised Petitioner of the sentencing range, and advised Petitioner “of all pertinent constitutional rights and rights of review” (Id. at 14). Petitioner was represented by counsel at this hearing (Id.). Petitioner entered guilty pleas consistent with the plea agreement and the superior court judge set a sentencing hearing (Id. at 14-16).
At the sentencing hearing on October 18, 2017, the superior court judge found that Petitioner “knowingly, intelligently and voluntarily waived all pertinent constitutional and appellate rights and entered a plea of guilty” (Id. at 28). Petitioner was sentenced to a flat (day for day) fourteen (14) year prison term on Count 8 and probation on Counts 5, 7, and 9, consistent with the plea agreement (Id. at 27-33). The superior court judge also ordered that Petitioner's counsel preserve Petitioner's file for post-conviction relief (“PCR”) purposes, timely provide the file to PCR counsel if Petitioner initiates PCR proceedings, and file a notice of compliance upon transfer of the file (Id. at 32).
As one would expect, Petitioner's was represented by counsel through the presentence investigation report process and at the sentencing hearing as well (Id. at 19, 27).
On the same day as sentencing, October 18, 2017, Petitioner acknowledged receipt of written notice to him that he had ninety (90) days to file a PCR notice initiating PCR proceedings (Id. at 35). See Ariz. R. Crim. P. 32 (later Ariz. R. Crim. P. 33). Nevertheless, Petitioner did not initiate PCR proceeding until over two years later in December, 2019 (Id. at 37-43; Doc. 1 at 4). On March 10, 2020, the superior court dismissed the PCR proceedings, finding that Petitioner had “failed to state a claim for which relief can be granted in an untimely Rule 33 proceeding” (Doc. 30-1 at 45-46). There is no evidence in the record that Petitioner filed a petition for review of the superior court's decision, and Respondents aver that Petitioner did not “appeal” the superior court's decision (Doc. 30 at 5).
II. THESE HABEAS PROCEEDINGS
In the Petition, Petitioner names David Shinn as Respondent and the Arizona Attorney General as an Additional Respondent (Doc. 1 at 1). Petitioner raises three grounds in his Petition (Id. at 6-9). In Ground 1, Petitioner claims that the trial court's application of A.R.S. 13-3961(A)(3) violated his substantive due process rights under the Fourteenth Amendment; Petitioner also claims that the health care conditions of his incarceration subject him to cruel and unusual punishment in violation of his Eighth Amendment rights (Id. at 6). In Ground 2, Petitioner asserts that his plea was involuntary because the State of Arizona coerced him into it by depriving him of his fundamental rights to a fair trial; Petitioner also claims ineffective assistance of counsel (Id. at 7). In Ground 3, Petitioner claims that his Thirteenth Amendment rights were violated (Id. at 8).
Using December 12, 2019, as the filing date, Respondents argue that the Petition should be dismissed with prejudice because these proceedings were untimely filed (Doc. 30). Further, Respondents argue that all the claims raised in the Petition are procedurally defaulted without excuse (Id.). In addition, Respondents argue that Petitioner's claims in Grounds 1 and 3 are precluded given Petitioner's guilty pleas (Id.).
The Petition states as an explanation for untimely filing of these habeas proceedings that “[j]urisdiction can be challenge[d] at any time under Habeas” (Doc. 1 at 11). Even though the Court sua sponte granted Petitioner an extension of time to file a reply and expressly stated that “Petitioner may address [Respondents'] raised affirmative defenses in his reply in support of his Petition” (Doc. 32 at 2), Petitioner did not file a reply in support of his Petition.
III. TIMELINESS
A. Start Date of AEDPA's One Year Limitations Period
A threshold issue for the Court is whether these habeas proceedings are time-barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas proceedings because he filed his Petition after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). For AEDPA statute of limitations purposes, the Court uses December 12, 2019, the date Petitioner placed the original Petition in prison mail, as the applicable filing date for the Amended Petition. See Mayle v. Felix, 545 U.S. 644, 664 (2005).
See footnote 2, supra.
Under AEDPA, there are four possible starting dates for the beginning of its one-year statute of limitations period:
(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). The latest of the applicable possible starting dates is the operative start date. Id.
Here, the Petition arises from a final judgment and sentence, and the record does not present circumstances for a later start date based on subsections (B), (C), or (D). Thus, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A). AEDPA's one-year statute of limitations period runs from when the judgment and sentence 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). Petitioner is simply wrong when he asserts that “[j]urisdiction can be challenge[d] at any time under Habeas” (Doc. 1 at 11).
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may seek review only by collaterally attacking the conviction(s) by way of post-conviction proceedings under Arizona Rule of Criminal Procedure 32 (now Rule 33). See Ariz. R. Crim. P. 17.2(e); A.R.S. § 13-4033(B). At the time of Petitioner's sentencing, Rule 32.4(a)(2)(C) required that an of-right PCR notice be filed within 90 days after entry of judgment and sentence. Further, a conviction becomes “final” for purposes of Section 2244(d)(1)(A) of AEDPA when the Rule 32 (now Rule 33) of-right proceeding concludes or the time for filing such expires. Summers v. Schriro, 481 F.3d 710, 711, 716-717 (9th Cir. 2007); see also A.R.S. § 13-4033(B). 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. Summers, 481 F.3d at 711, 716-17.
Petitioner's sentencing was on October 18, 2017. Petitioner had ninety (90) days from October 18, 2017, in which to file a PCR notice to initiate PCR proceedings. Ninety days after October 18, 2017, was Tuesday, January 16, 2018. Thus, the last day for Petitioner to file a timely PCR notice was Tuesday, January 16, 2018. Petitioner did not file a PCR notice in this timeframe. Thus, Petitioner's conviction and sentence became final on Tuesday, January 16, 2018, triggering the start of AEDPA's one-year statute of limitations the next day. Therefore, AEDPA's one-year statute of limitations began running on Wednesday, January 17, 2018, and expired on Wednesday, January 16, 2019. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 ... .”). Accordingly, Petitioner was required to file a federal habeas petition on or before Wednesday, January 16, 2019. Petitioner did not file the Petition until December 12, 2019. Thus, the Petition was untimely filed by almost eleven (11) months. Below, the Court will address whether statutory tolling, equitable tolling, or the actual innocence gateway applies to render the Petition, and these proceedings, timely filed.
B. Statutory Tolling
AEDPA expressly provides for tolling of the limitations period when a “properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). This includes compliance with filing deadlines. A state post-conviction relief petition not filed within the state's required time limit is not “properly filed, ” and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post-conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414). 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).
Here, because the superior court found Petitioner's initiation of PCR proceedings untimely without cause, Petitioner's PCR proceedings were not “properly filed” and no statutory tolling applies. Further, AEDPA's limitation period expired before the filing of Petitioner's PCR proceedings, foreclosing statutory tolling.
C. Equitable Tolling
The U.S. Supreme Court has held “that § 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. Id. at 645-46. It is Petitioner's burden to establish that equitable tolling is warranted. Pace, 544 U.S. at 418; 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.”).
The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA's limitations period “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner must show “(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way” to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the first prong, Petitioner “must 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.” Smith, 953 F.3d at 598-99 (expressly rejecting the “stop-clock” approach to equitable tolling). 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.
“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and quotations omitted). Whether to apply the doctrine of equitable tolling “‘is highly fact-dependent,' and [the petitioner] ‘bears the burden of showing that equitable tolling is appropriate.'” Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable in most cases, ” and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted).
In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[E]quitable tolling is available 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 the prisoner's untimeliness.”). A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where “it would have technically been possible for a prisoner to file a petition, ” so long as the prisoner “would have likely been unable to do so.”).
A petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry, 448 F.3d at 1154 (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”); see also Ballesteros v. Schriro, CIV 06-675-PHX-EHC (MEA), 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). 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).
After carefully reviewing the entire record before the Court, undersigned concludes that Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that extraordinary circumstances prevented Petitioner from filing a timely petition for habeas corpus. Accordingly, equitable tolling is unavailable to Petitioner.
D. Actual Innocence
In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the “actual innocence gateway” to federal habeas review that applies 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. See Schlup, 513 U.S. at 329 (petitioner must make a credible showing of “actual innocence” by “persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”).
To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). 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 v. Perkins, 569 U.S. 383, 399 (2013) (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. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). 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. Thompson, 523 U.S. 538, 559 (1998)).
Here, Petitioner has not even made assertions of actual innocence. Even if any of Petitioner's claim and its subparts could be construed as an actual innocence claim, Petitioner has not presented new reliable evidence as required for the actual innocence/Schlup gateway. Accordingly, the actual innocence/Schlup gateway provides no relief to Petitioner for the untimely filing of the Petition.
E. These Proceedings Are Untimely Under AEDPA
Under applicable law, the Petition was untimely filed. Petitioner is not entitled to statutory tolling. Equitable tolling does not render the Petition's filing timely, nor does the actual innocence gateway. Thus, these untimely proceedings should be dismissed with prejudice.
IV.CONCLUSION
Based on the above analysis, the undersigned finds that the Petition (Doc. 1) was untimely filed and that neither statutory tolling, equitable tolling, nor the actual innocence gateway apply to render the filing of the Petition, and thus these proceedings, timely. Because the Petition (Doc. 1) was untimely filed, undersigned did not reach Respondents' argument that Petitioner's claims are procedurally defaulted without excuse and that Petitioner's claims in Grounds 1 and 3 are precluded given Petitioner's guilty pleas.
The undersigned therefore recommends that the Petition (Doc. 1) be dismissed with prejudice due to the untimely filing of these proceedings. Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in its procedural ruling. Accordingly, to the extent the District Judge adopts this Report and Recommendation regarding the Petition, a certificate of appealability should be denied.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
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) of the 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 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. The parties shall have fourteen days within which to file responses to any 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 determination 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.