Opinion
CV-18-8195-PCT-JAT (JFM)
04-23-2019
Andrew Marquez Suarez, Petitioner v. Charles L. Ryan, et al., Respondents.
Report & Recommendation on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 22, 2018 (Doc. 1). On November 27, 2018, Respondents filed their Answer (Doc. 9), supplemented by a non-electronic exhibit (DVD) (Doc. 12). Petitioner filed a Reply on January 10, 2019 (Doc. 14).
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. FACTUAL BACKGROUND
Acting on a search warrant, police discovered various drugs and paraphernalia and a semiautomatic pistol in an apartment shared by Petitioner. While there, Petitioner's cell phone rang, the police officers answered, and the caller eventually asserted he was calling to purchase drugs from Petitioner. Petitioner was arrested on suspicion of selling drugs. At the police station, Petitioner and the officer discussed whether Petitioner wanted to answer questions without an attorney, and Petitioner eventually agreed to answer "some." During questioning, Petitioner made various admissions (holding methamphetamine for a friend, possessing a pistol and a small amount of heroin for personal use). He also asserted that federal authorities had been looking form him as an international drug importer. (Pet. Exhibit, Mem. Dec. at 1-4, Doc. 1-2 at 5-7.) (Petitioner's unlabeled exhibits to the Petition, Doc. 1, are referenced herein as "Pet. Exhibit," with the docket number and docket pages identified. Exhibits to the Answer, Doc. 9, are referenced herein as "Exhibit ___.") B. PROCEEDINGS AT TRIAL
On August 26, 2014, Petitioner was indicted on counts of possession of methamphetamine for sale, possession of heroin for sale, possession of drug paraphernalia, weapons misconduct during a felony, weapons misconduct as a prohibited possessor, and transportation of methamphetamine for sale. (Exhibit B, Indictment.) Petitioner moved unsuccessfully to suppress evidence from the search and his statements after arrest. (Pet. Exhibit, Mem. Dec. at ¶ 9-10, Doc. 1-2 at 7.) He proceeded to trial and the "jury convicted Suarez of possession of dangerous drugs and narcotics for sale, possession of drug paraphernalia, and misconduct involving weapons [as a prohibited possessor]." (Id. at ¶ 13, Doc. 1-2 at 8.) Petitioner was acquitted on the charges of weapons misconduct during a felony and transportation.
On May 21, 2015, Petitioner was sentenced to concurrent prison terms of 12 years on each of the possession for sale charges and 2 years on the paraphernalia charge, and a consecutive term of 4 years on the weapons charge, for an effective sentence of 16 years. (Exhibit D, Sentence.) C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal, challenging the admission of the evidence seized from the apartment, the admission of his statements, the admission of hearsay from the caller, and the admission of Petitioner's statements about federal agencies' suspicions of him being an international drug dealer. (Pet. Exhibit, Opening Brief, Doc. 1 at 12 to Doc. 1-1 at 41.) On May 31, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Pet. Exhibit, Mem. Dec. Doc. 1-2 at 4-12.)
Petitioner sought review from the Arizona Supreme Court. (Pet. Exhibit, PFR, Doc. 1-3 at 1, et seq.) On November 15, 2016, the Arizona Supreme Court summarily denied review. (Pet. Exhibit, Order 11/15/16, Doc. 1-3 at 23.) The Arizona Court of Appeals issued its mandate on December 16, 2016. (Exhibit H.)
Petitioner did not seek certiorari review. (Petition, Doc. 1 at 3.) D. PROCEEDINGS ON POST-CONVICTION RELIEF
Three days later, on December 19, 2016, Petitioner filed a Notice of Post-Conviction Relief (Exhibit I).
Petitioner was appointed counsel, who eventually filed a notice of completion evidencing an inability to find an issue for review. (See Pet. Exhibit, Order 6/7/17, Doc. 1-3 at 28, et seq.) On May 15, 2017, Petitioner filed a pro per PCR Petition. (Pet. Exhibit, PCR Pet., Doc. 103 at 24, et seq.) The PCR court summarily denied that petition on June 7, 2017. (Id.)
Petitioner then filed a Petition for Review. (Pet. Exhibit, PFR, Doc. 1-3 at 33 et seq.) It was dismissed as untimely. (Pet. Exhibit, Order 7/27/17, Doc. 1-3 at 36 et seq.) Petitioner then filed a motion for reconsideration (Pet. Exhibit, Motion 8/11/17, Doc. 1-3 at 38), which was denied (id. at Order 8/23/17, Doc. 1-3 at 39-40). Petitioner then filed a motion for delayed review with the PCR court. (Pet. Exhibit, Motion 9/12/17, Doc. 1-3 at 41.) The motion was denied. (Pet. Exhibit, Order 10/2/17, Doc. 1-3 at 42.) E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Some 14 months after the PCR court's dismissal of his PCR petition, Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 22, 2018 (Doc. 1). Petitioner's Petition asserts the following four grounds for relief:
In Ground One, Petitioner alleges that his Fourth and Fourteenth
Amendment rights were violated because "[t]here was insufficient probable cause set forth in the residential search warrant affidavit." In Ground Two, Petitioner alleges that his Miranda rights were violated at the police station when the officers failed to stop questioning Petitioner and used "psychological tactics to exploit [his] vulnerabilities." In Ground Three, Petitioner alleges that "prior felony possession is now a misdemeanor . . . so [he] would like to get resentenced." In Ground Four, he asserts that he received ineffective assistance of counsel.(Order 10/18/18, Doc. 5 at 1-2.) With regard to timeliness, Petitioner argues:
I got denied for a motion for reconsideration on October 2017. I don't know if I go off of that date or the date I was denied to file my petition for PCR which would be on August 2017.(Petition, Doc. 1 a 11.)
Response - On November 27, 2018, Respondents filed their Answer (Doc. 9). Respondents argue that the Petition is untimely, Grounds 1 and 3 are not cognizable on habeas review, Grounds 3 and 4 are procedurally defaulted, and Ground 2 is without merit. In support of the latter argument, Respondents filed a non-electronic exhibit, a DVD of the police station interview (Doc. 12).
Reply - On January 10, 2019 Petitioner filed a Reply (Doc. 14). Petitioner argues: (1) on reviewing the DVD his rights were violated in additional ways and the merits of Ground 2 (id. at 1-3); and (2) the merits of Ground 1 and 4 (id. at 3-4). Petitioner does not address the statute of limitations or procedural default defenses, or the merits of Ground 3.
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.
Here, Petitioner's direct appeal remained pending at least through November 15, 2016, when the Arizona Supreme Court denied his Petition for Review. (Pet. Exhibit, Order 11/15/16, Doc. 1-3 at 3.)
For purposes of 28 U.S.C. § 2244, "direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The rules of the Supreme Court of the United States, requires that a petition for a writ of certiorari be filed "within 90 days after entry of the order denying discretionary review." U.S.S.Ct. R. 13(1). Accordingly, because Petitioner did not file a petition for a writ of certiorari, his conviction became final on Monday , February 13, 2017 , 90 days after the Arizona Supreme Court denied denied review.
"The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice)." U.S.S.Ct. R. 13(3).
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).
Therefore, Petitioner's one year began running on February 14, 2017, and would have expired on February 13 , 2018 without any tolling . 3. Timeliness Without Tolling
Respondents calculate the same pre-tolling expiration date. (Answer, Doc. 9 at 10.)
Petitioner's Petition (Doc. 1) was filed on August 22, 2018.
However, the Petition includes Petitioner's declaration under penalty of perjury that it "was placed in the prison mailing system on 08-16-2018," six days prior to its filing date. (Petition, Doc. 1 at 11.) "In determining when a pro se state or federal petition is filed, the 'mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing." Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). The packaging received by the Clerk appears to originate from the prison, including a metered stamp showing mailing on August 21, 2018. (Petition at Packaging, Doc. 1-4.)
Respondents do not refute Petitioner's avowal on mailing, and it is reasonable to conclude that in the ordinary course six days could expire between such delivery to prison officials and receipt by the Clerk. Accordingly, the undersigned finds that his Petition was delivered to prison officials for mailing on August 16, 2018, and that it must be deemed "filed" as of that date.
As determined in subsection (1) above, without any tolling Petitioner's one year habeas limitations period expired no later than February 13, 2018, making his August 16, 2018 Petition over six months delinquent. 4. Statutory Tolling
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). This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).
Properly Filed - Statutory tolling of the habeas limitations period only results from state applications that are "properly filed," and an untimely application is never "properly filed" within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005). On the other hand, the fact that the application may contain procedurally barred claims does not mean it is not "properly filed." "[T]he question whether an application has been 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." Artuz v. Bennett, 531 U.S. 4, 9 (2000).
Federal Mailbox Rule - For purposes of calculating tolling under § 2244(d), the federal prisoner "mailbox rule" applies. Under this rule, a prisoner's state filings are deemed "filed" (and tolling thus commenced) when they are delivered to prison officials for mailing. In Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000), the Ninth Circuit noted:
[I]n Saffold v. Newland, 224 F.3d 1087 (9th Cir.2000), we squarely held that the mailbox rule applies with equal force to the filing of state as well as federal petitions, because "[a]t both times, the conditions that led to the adoption of the mailbox rule are present; the prisoner is powerless and unable to control the time of delivery of documents to the court." Id. at 1091.Id. at 575. But, this does not necessarily render the state filing "timely" for state law purposes, only "pending" for purposes of tolling.
State Mailbox Rule - Still, the "mailbox rule" applies to determining whether an Arizona prisoner's state filings were timely for state law purposes. Although a state may direct that the prison mailbox rule does not apply to filings in its court, see Orpiada v. McDaniel, 750 F.3d 1086, 1090 (9th Cir. 2014), Arizona has applied the rule to a variety of its state proceedings. See e.g. Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.1995) (notice of direct appeal); State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App.1999) (PCR notice); State v. Goracke, 210 Ariz. 20, 23, 106 P.3d 1035, 1038 (App. 2005) (petition for review to Arizona Supreme Court).
Arizona Time After Service by Mail - Arizona applies Arizona Rule of Criminal Procedure 1.3 to extend "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. Zuniga, 163 Ariz. 105, 106, 786 P.2d 956, 957 (1990). This rule has been extended to post-conviction relief proceedings. See State v. Goracke, 210 Ariz. 20, 21 n.1, 106 P.3d 1035, 1036 n.1 (Ct. App. Div. 1 2005). See also State v. Brock, 163 Ariz. 523, 526, 789 P.2d 390, 393 (Ct. App. Div. 1 1989) (supplemental opinion), aff'd, 165 Ariz. 296, 798 P.2d 1305 (1990) (applying to PCR motion for reconsideration of appellate court ruling).
As part of a general restyling and restructuring of the Arizona Rules of Criminal Procedure, effective January 1, 2018, it appears that Rule 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). In addition, Rule 1.3(c) was added to clarify that a "court order is entered when the clerk files it," see also Ariz. R. Crim. Proc. 31.1(c)(6) (defining "entry"), and the rules on appeals, petitions for review, motions for reconsideration, etc. were revised to reference "entry" of the order being appealed, see e.g. Ariz. R. Crim. Proc. 31.2(a)(2)(B), 31.20 (c), 31.21(b)(2)(A), 32.9(a), and 32.9(c)(1)(A). See Ariz. Sup. Ct. Order R-17-002, available at https://www.azcourts.gov/Portals/20/2017%20Rules/17-0002.pdf, last accessed 4/19/19. It appears this may make precedent applying the extension to orders and judgments no longer applicable when the order/judgment was entered after January 1, 2018. In any event, the effective date was after the relevant dates in this case.
Application to Petitioner - Petitioner's limitations period commenced running on February 14, 2017. Petitioner's PCR proceeding was commenced at least by December 19, 2016, when he filed his Notice of Post-Conviction Relief (Exhibit I), before his limitations period began running. It remained pending until June 7, 2017, when the PCR Court denied the Petition. (Pet. Exhibit, Order 6/7/17, Doc. 1-3 at 28 et seq.)
As opined by the Arizona Court of Appeals in dismissing Petitioner's Petition for Review as untimely, Petitioner had 30 days from the PCR court's decision to file his petition for review, or until July 7, 2017. But his petition for review was not filed until July 17, 2017. (Pet. Exhibit, Order 7/27/17 at 1, Doc. 103 at 36.)
As discussed hereinafter, these state law rulings may have been incorrect. But, even if indisputably incorrect, the state court's ruling is binding on this Court for purposes of statutory tolling.
While we may not have made the same decision as the Nevada Supreme Court, we are not at liberty to second guess that court's decision when it was acting on direct appeal of the state post-conviction court's judgment. The state supreme court concluded that
Rudin's petition was untimely under state law, and "[w]hen a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)."Rudin v. Myles, 781 F.3d 1043, 1054 (9th Cir. 2015) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005)) (but finding surprising and erroneous untimeliness ruling grounds for equitable tolling).
Thus, Petitioner's "untimely" Petition for Review did not extend the statutory tolling beyond the state court's dismissal.
Neither did Petitioner's subsequent attempts to obtain reconsideration or an extension of time to file his Petition for Review. See Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009) (state discovery motions did not toll because they did not challenge the conviction). "[I]f a filing of that sort could toll the AEDPA limitations period, prisoners could substantially extend the time for filing federal habeas petitions by pursuing in state courts a variety of applications that do not challenge the validity of their convictions." Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001).
Thus, Petitioner's habeas limitations period was tolled from its commencement through June 7, 2017. It commenced running again on June 8, 2017, and expired one year later on Thursday, June 7, 2018. Consequently, his Petition, deemed filed as of August 16, 2018, was 70 days delinquent.
Respondents calculate a delinquency of 2 months and 15 days. (Answer, Doc. 9 at 9.) From June 7, 2017 through August 22, 2018 is 76 days. Thus, Respondents' reference to "2 months" appears to be a reference to calendar months, not 30 day periods, with 31st day of July making the difference. The 6 extra days results from the difference between the Court's use of the mailing date of August 16, 2018, and Respondents' use of the filing date, August 22, 2018.
Even if it were assumed arguendo that Petitioner's various motions seeking to extend the time to file his petition for review were the type of proceeding that would justify statutory tolling, see Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000) (motion for delayed appeal considered for tolling, but not as part of original PCR proceeding), Petitioner's habeas petition would still not be timely. Petitioner's first motion, one for reconsideration, was filed on August 11, 2017, and was denied on August 23, 2017. Even if that motion were delivered to prison officials on the signature date, and thus deemed filed as of August 9, 2017, it would only provide 14 days of tolling. Petitioner's second such attempt, his motion for leave to file a delayed petition for review, was dated September 6, 207 and filed September 12, 2017, and was denied on October 3, 2017. Even if that motion were delivered to prison officials on the signature date, and thus deemed filed as of September 6, 2017, it would only provide 27 days of tolling. Thus, at most, Petitioner would be entitled to an additional 41 days of statutory tolling, still insufficient to do eradicate his 60 day delinquency, leaving him at least 29 days delinquent.
Consequently, even if all conceivably arguable equitable tolling were granted, Petitioner's habeas petition was still delinquent. 5. 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, the 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 made it impossible to file a petition on time." Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations, quotations and alterations omitted). "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) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.).
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).
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) ("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.").
Confusion Over Post-Dismissal Motions - The only grounds Petitioner offers for equitable tolling is the argument in his Petition that he was confused about the triggering date for the limitations period. Petitioner described his options as the August 2017 (when his motion for reconsideration of the dismissal of his PFR was denied) or October 2017 (when his motion for delayed petition for review was denied). (Petition, Doc. 1 at 11.) The undersigned finds this inadequate justification for four reasons.
First, the events on both these dates had no effect on Petitioner's limitations period.
Second, Petitioner fails to explain why, in the face of a dismissal of his petition for review, he did not promptly proceed to file his federal petition. Petitioner cannot rely upon his desire or even need to 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.
Third, Petitioner's lack of familiarity with the law and lack of legal assistance do not toll the limitations period. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). And, "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.1999). 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). An external force must cause the untimeliness, rather than merely oversight, miscalculation or negligence on the petitioner's part." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).
Fourth, in Waldron-Ramsey, the petitioner attempted to rely on "confusion regarding AEDPA" to excuse his 340 delay in filing. The court concluded: "His alleged belief he was entitled to statutory tolling beyond that date was based on his own assumptions, and a diligent petitioner in that situation would have filed a basic form habeas petition as soon as possible. Waldron-Ramsey's strategy to wait 340 days to file, in the hopes that any ambiguities would ultimately be resolved in his favor, is the kind of 'oversight, miscalculation or negligence' for which equitable tolling is not appropriate." 556 F.3d at 1013. Similarly, even assuming he was confused, Petitioner proffers no explanation for simply waiting to file his federal petition, in the apparent hope that the later date would turn out to apply.
Erroneous Ruling on PCR PFR - Arguably, the Arizona Court of Appeals committed two errors of state law in finding Petitioner's PCR petition for review untimely.
First, the Arizona Court of Appeals treated Petitioner's petition for review as filed July 17, 2017, when it was received by the Court. But, the Petition was dated July 6, 2017. Petitioner might argue that he delivered it to prison officials for mailing on that date. As noted, Arizona generally applies its own version of the prison mailbox rule to prisoners' filings. But the state court apparently did not apply the rule, and found the petition for review untimely.
However, nothing in the record demonstrates that the petition was delivered to prison officials for mailing at a time that it could have been deemed timely.
Second, the Arizona Court of Appeals calculated Petitioner's deadline to file his petition for review as 30 days. However, the PCR court's ruling being challenged appeared to have not been rendered in open court, but to have been delivered to the parties by mail. If that were the case, under Arizona Rules of Criminal Procedure 1.3, Petitioner would have been entitled to an additional five days to file his petition for review, making his petition due Wednesday, July 12, 2017, rather than July 7, 2017.
But, Petitioner has not argued the point, and the record is not conclusive whether service was by mail.
Nonetheless, if both of these could be shown to be errors, Petitioner's petition for review should have been deemed filed as of July 6, 2017, and his deadline to have been July 12, 2017, making his petition for review timely.
Even so, Petitioner cannot show a basis for equitable tolling based on such error, because he should have been aware of the error as of the July 27, 2017 dismissal of his petition. At that point, at most 50 of his 365 days had expired, leaving him 315 days to file his federal petition. But, instead of doing so, Petitioner doggedly pursued permission to file his state petition for the next three months, and even when that failed in October, 2017, waited another eight months to file his federal petition.
Moreover, as discussed hereinabove, Petitioner cannot rely on his need to exhaust state remedies, because had he been diligent he could have file his federal petition, and moved to stay while he finished exhausting his state remedies. See Pace, 544 U.S. at 416.
Thus Petitioner cannot show that any such state court error was the cause of his untimeliness, or that he was diligent in filing his federal petition in the face of such error.
Accordingly, the Court finds no basis for equitable tolling. 6. 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, 133 S.Ct. 1924, 1935 (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 1935 (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 1936 (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. 7. Summary re Statute of Limitations
Taking into account the available statutory tolling, Petitioner's one year habeas limitations period commenced running on June 8, 2017, and expired one year later on Thursday, June 7, 2018. Consequently, his Petition, deemed filed as of August 6, 2018, was 60 days delinquent. Petitioner has shown no basis for additional statutory tolling, and no basis for equitable tolling or actual innocence to avoid the effects of his delay. Consequently, the 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 Respondents other defense would eventually leave the Court to address the merits of Ground 2, Respondents other defenses are not reached. / /
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - 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.
Standard Not Met - 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 that the Petitioner's Petition for Writ of Habeas Corpus, filed August 22, 2018 (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that, 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." Dated: April 23, 2019 18-8195r RR 19 04 18 on HC.docx
/s/_________
James F. Metcalf
United States Magistrate Judge