Opinion
CV 21-01300-PHX-DLR (MTM)
01-19-2024
Cameron Leezell Taylor, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE MICHAEL T. MOMSFEEY UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Petitioner Cameron Leezell Taylor, who is confined in the Arizona State Prison Complex-Eyman, filed, through counsel, an amended Petition for Writ of Habeas Corpus and Memorandum of Law in Support pursuant to 28 U.S.C. § 2254. (Docs. 58, 59.) Petitioner has also filed a Motion to Stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (Doc. 78.)
I. SUMMARY OF CONCLUSION
Petitioner was convicted by a jury in Maricopa County Superior Court, case #CR 2014-000910, of one count of drive-by shooting, one count of second-degree murder, one count of assisting a criminal street gang, one count of endangerment, and two counts of aggravated assault. Petitioner was sentenced to 49 years in prison. In his amended habeas petition, Petitioner raises four grounds for relief. However, the petition is untimely and Petitioner is not entitled to equitable tolling. Petitioner has also failed to demonstrate actual innocence. Accordingly, the Court will recommend that the Motion to Stay and amended
Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.
II. BACKGROUND
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court s opinion should not be afforded the presumption of correctness).
Shortly before noon on March 23, 2009, J.M., Antwone C., Arkeem C., and Taylor were driving through a south Phoenix neighborhood in J.M.'s Honda Accord. At some point, the men, all documented gang members, began following a Chevrolet Caprice occupied by two rival gang members, T.C. and E.M., and two women, S.M. and A.B. As J.M. drove, Taylor, the front-seat passenger, withdrew a handgun from his waistband. When the Accord pulled within two or three car lengths behind the Caprice, Taylor extended his arm outside the front-passenger window and began shooting. At the same time, backseat passenger Arkeem C. stood upright through the Honda's sunroof and began firing a rifle at the Caprice. Initially, the handgun bullets ricocheted off the road, but Taylor quickly adjusted his aim upward and he and Arkeem C. shot at their rivals' vehicle for approximately twenty seconds before the Caprice's driver, A.B., maneuvered through traffic and sped away.
Notwithstanding A.B.'s evasive actions, a bullet hit E.M. in the back. Another bullet pierced the rear window of an unrelated vehicle, striking and killing G.L. A third bullet hit the tire of another unrelated vehicle, but that driver, N.M., was not injured.
Following these events, Taylor was the target of an extensive, multiagency law enforcement investigation, but he eluded capture until November 21, 2013. Once he was apprehended, the State charged Taylor with one count of drive-by shooting (Count 1); four counts of aggravated assault (Count 2-victim E.M.; Count 3-victim T.C.; Count 4-victim S.M.; and Count 5-victim A.B.); one count of assisting a criminal street gang (Count 6); one count of first-degree, premeditated murder (Count 7-victim G.L.); and one count of endangerment (Count 8-victim N.M.). The State also alleged numerous aggravating factors.
Eight days into the first trial, the court granted Taylor's motion for a mistrial. After the State's presentation of evidence at the second trial, Taylor moved for a judgment of acquittal on Counts 3 and 4, which the trial court granted. The jury then found Taylor not guilty of first-degree murder, guilty of the lesser-included offense of second-degree murder, and guilty of the remaining charges. The jury also found multiple aggravating factors for each count. The superior court sentenced Taylor to an aggravated term of 12 years' imprisonment on Count 1, a concurrent, aggravated term of3.5 years' imprisonment on Count 6, a concurrent, aggravated term of 22 years' imprisonment on Count 7, a consecutive (as to Counts 1, 6, and 7), aggravated term of 12 years' imprisonment on Count 2, a consecutive (as to Count 2), aggravated term of12 years' imprisonment on Count 5, and a consecutive (as to Count 5), aggravated term of 3 years' imprisonment on Count 8.State v. Taylor, 2017 WL 3709016, at *1 (Ariz.Ct.App. Aug. 29, 2017).
B. Direct Appeal
On March 29, 2017, Petitioner, through counsel, filed an opening brief in the Arizona Court of Appeals raising three claims. (Doc. 63-2 at 9-30; Exh. II.) On August 29, 2017, the court issued a Memorandum Decision affirming Petitioner's convictions and sentences. (Doc. 63-2 at 82; Exh. LL); Taylor, 2017 WL 3709016, at *1. On July 3, 2018, the Arizona Supreme Court denied Petitioner's petition for review, and on August 2, 2018, the mandate issued. (Doc. 63-2 at 92; Exh. NN.)
C. Post-Conviction Relief Proceedings
On July 17, 2018, Petitioner filed a notice of post-conviction relief in the trial court. (Doc. 63-2 at 88; Exh. MM.) On December 27, 2018, Petitioner's counsel filed a notice of completion of review informing the court that he was unable to find any colorable claims to raise in post-conviction relief proceedings. (Doc. 63-2 at 107; Exh. PP.) The court appointed advisory counsel and provided Petitioner with an extension of time to file a pro per PCR petition. (Doc. 63-2 at 113; Exh. QQ.)
On May 28, 2019, Petitioner filed a document entitled, “Motion for Rule 32 Post Conviction Relief' and a request to amend his PCR petition. (Doc. 63-2 at 119, 122; Exhs. SS, TT.) The court granted Petitioner's request to amend on June 4, 2019, advising Petitioner that his amended petition must be supported by a declaration. (Doc. 63-2 at 189; Exh. UU.) Apparently not realizing that the court had already granted his request to amend, Petitioner filed another motion to amend on June 5, 2019. (Doc. 63-2 at 191; Exh. VV.) The court granted Petitioner's second request and again advised Petitioner that any amended PCR petition must be supported by a declaration. (Doc. 63-2 at 194; Exh. WW.)
On July 16, 2019, Petitioner's advisory counsel filed a PCR petition. (Doc. 63-2 at 197; Exh. XX.) Petitioner then sent a letter to the court on July 26, 2019, attaching a copy of his amended PCR petition “to be submitted as a supplement to the petition” filed by advisory counsel. (Doc. 63-2 at 205; Exh. YY.) On August 16, 2019, the court issued an order finding that Petitioner's amended PCR petition contained the required declaration. (Doc. 63-3 at 2; Exh. AAA.) The court accepted the July 26, 2019 filing as a compliant Rule 32 PCR petition and struck advisory counsel's July 16, 2019 petition, finding that counsel did not have authority to file a PCR petition on Petitioner's behalf. (Id.)
On October 10, 2019, the trial court denied Petitioner's PCR petition, concluding that Petitioner failed to raise a “colorable claim for post-conviction relief.” (Doc. 63-3 at 35; Exh. FFF.) On November 11, 2019, Petitioner filed a motion for extension of time to file a request for reconsideration. (Doc. 63-3 at 37; Exh. GGG.) The court denied the motion on November 12, 2019. (Doc. 63-3 at 40; Exh. HHH.) On November 20, 2019, Petitioner filed a document entitled, “Appeal from the Superior Court of Maricopa County/Motion for Notice of Appeal from Post-Conviction Relief' in the trial court. (Doc. 63-3 at 42; Exh. III.) On that same date, he also filed an untimely motion for reconsideration. (Doc. 63-3 at 50; Exh. JJJ.) The record reflects that the trial court forwarded Petitioner's “Appeal from the Superior Court of Maricopa County/Motion for Notice of Appeal from Post-Conviction Relief' to the Arizona Court of Appeals, and the document was received on December 2, 2019. (Doc. 63-3 at 88, 104; Exhs. OOO, PPP.)
See Ariz. R. Crim. P. 32.14(a) (requiring a motion for reconsideration to be filed within 15 days).
On December 2, 2019, the trial court issued a minute entry summarily denying Petitioner's motion for reconsideration. (Doc. 63-3 at 86; Exh. NNN.) On December 10, 2019, the court of appeals notified Petitioner that his “Appeal from the Superior Court” and “Motion for Notice of Appeal” did not comply with Rule 32.9 of the Arizona Rules of Criminal Procedure. (Doc. 63-3 at 104; Exh. PPP.) The court provided Petitioner 30 days to correct the deficiencies identified in its notice and warned, “If you do not file a compliant petition for review within 30 days from the date of this letter, the court will dismiss this matter.” (Id.) On January 17, 2020, the Arizona Court of Appeals dismissed Petitioner's PCR proceedings because he failed to file a compliant petition for review. (Doc. 63-3 at 116; Exh. TTT.)
Meanwhile, on December 31, 2019, Petitioner's advisory counsel entered a notice of appearance in the trial court stating that he had been retained to represent Petitioner. (Doc. 63-3 at 107; Exh. QQQ.) A request for an extension of time to file a petition for review was submitted along with the notice of appearance. (Doc. 63-3 at 110, 113; Exhs. RRR, SSS.) The record reflects that the request for an extension of time was filed in the trial court on January 15, 2020, and was granted on January 24, 2020. (Doc. 63-3 at 118; Exh. UUU.)
On March 5, 2020, Petitioner filed an untimely motion for rehearing of his PCR petition in the trial court. (Doc. 63-3 at 120; Exh. VVV.) The court summarily denied the motion on April 2, 2020. (Doc. 63-3 at 124; Exh. WWW.) On May 28, 2020, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 63-3 at 126; Exh. XXX.) On June 1, 2020, the court of appeals dismissed the petition for review because it was untimely. (Doc. 63-3 at 132; Exh. YYY.) The record reflects that Petitioner did not file a petition for review in the Arizona Supreme Court.
See Ariz. R. Crim. P. 32.14(a) (motion for rehearing must be filed within 15 days of the trial court's order of dismissal).
III. PETITIONER'S AMENDED HABEAS PETITION
Petitioner initiated habeas corpus proceedings on July 22, 2021, and filed his amended Petition for Writ of Habeas Corpus and Memorandum of Law in Support on April 25, 2023. (Docs. 1, 58, 59.) Petitioner raises the following grounds for relief. In Ground One, Petitioner alleges his double jeopardy rights were violated when he was tried a second time after his first trial was declared a mistrial. In Ground Two, Petitioner claims his right to due process was violated when the trial court altered the elements of the offenses presented in the indictment. In Ground Three, Petitioner claims the jury pool was tainted by a potential juror's statements. In Ground Four, Petitioner alleges that he is actually innocent. (Docs. 58, 59.)
On May 23, 2023, Respondents filed their Answer, and Petitioner filed his Reply on July 20, 2023. (Docs. 63, 68.) The Court denied Petitioner's Request for Leave to File Supplement to Reply on July 25, 2023, and denied Petitioner's Motion for Reconsideration of that Order on August 22, 2023. (Docs. 70, 74.)
On October 16, 2023, Petitioner filed Motion to Stay seeking to stay this matter so he can “complete the exhaustion requirements of the State of Arizona.” (Doc. 78.) Petitioner states that he “intends to file an amended petition for habeas corpus, to include these claims when exhausted.” (Id.) The Motion is fully briefed and will be addressed herein.
IV. STATUTE OF LIMITATIONS
A. Time Calculation
The AEDPA imposes a one-year limitation period, which begins to run “from the latest of . . . the date on which the 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).
After Petitioner was convicted and sentenced, he filed a direct appeal. (Doc. 63-2 at 9; Exh. II.) On August 29, 2017, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences, (doc. 63-2 at 82; Exh. LL), and on July 3, 2018, the Arizona Supreme Court denied Petitioner's petition for review (doc. 63-2 at 92; Exh. NN). Petitioner's direct appeal, therefore, concluded on October 1, 2018, after the expiration of the 90-day period to file a petition for certiorari from the Supreme Court of the United States. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (“[T]he period of ‘direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [90-day] 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.”). The habeas petition was due one year later, absent statutory or equitable tolling.
B. Statutory Tolling
The one-year limitations period is statutorily tolled for the time period “during which a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2).
On July 17, 2018, before his direct appeal was final, Petitioner filed a timely notice of post-conviction relief. (Doc. 63-2 at 88; Exh. MM.) On October 10, 2019, the trial court denied Petitioner's PCR petition, finding “no colorable claim for post-conviction relief.” (Doc. 63-3 at 35; Exh. FFF.) On November 12, 2019, the trial court denied Petitioner's request for an extension of time to file a motion for reconsideration of that order. (Doc. 633 at 40; Exh. HHH.) On January 17, 2020, the Arizona Court of Appeals dismissed Petitioner's PCR proceedings because he failed to file a compliant petition for review. (Doc. 63-3 at 116; Exh. TTT.) On April 2, 2020, the trial court summarily denied Petitioner's untimely motion for rehearing of his PCR petition, (doc. 63-3 at 124; Exh. WWW), and on June 1, 2020, the court of appeals dismissed Petitioner's petition for review because it was untimely (doc. 63-3 at 132; Exh. YYY).
Petitioner ultimately filed an untimely request for reconsideration that was summarily denied by the trial court on December 2, 2019. (Doc. 63-3 at 50, 86; Exhs. JJJ, NNN.)
Because Petitioner failed to file a timely request for reconsideration or motion for rehearing of his PCR petition in the trial court, and failed to file a compliant or timely petition for review in the Arizona Court of Appeals, these filings did not toll the statute of limitations as they were not “properly filed.” Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (“Because the state court rejected petitioner's PCRA petition as untimely, it was not ‘properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2).”); Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (stating that an “untimely petition must be treated as improperly filed, or as though it never existed, for purposes of section 2244(d)”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (“Under Pace, if a state court denies a petition as untimely, none of the time before or during the court's consideration of that petition is statutorily tolled.”), amended, 439 F.3d 993 (9th Cir. 2006). Thus, since Petitioner's PCR proceedings had achieved final resolution on October 10, 2019, when the trial court denied Petitioner's PCR petition, Petitioner's statute of limitations began running the next day on October 11, 2019, and expired 1-year later on October 12, 2020. Petitioner initiated habeas corpus proceedings on July 22, 2021 -- over nine months after the limitations period expired. Absent equitable tolling, Petitioner's amended habeas petition is, therefore, untimely.
C. Equitable Tolling
“A petitioner who seeks equitable tolling of AEDPA's 1-year filing deadline must show that (1) some ‘extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). A petitioner must 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.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). “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) (citation omitted).
Petitioner argues in his Reply that he “was undermined by his counsels, indeed, abandoned by retained counsel, and acted diligently in the face of inadequate state procedures protecting his federal constitutional right to assert and exhaust his claims.” He argues that “failures by consecutive counsels constituted external impediments that fundamentally compromised Petitioner's attempts to comply with the state procedural rules applicable to exhausting state remedies.” (Doc. 68.)
“Although an attorney's behavior can establish the extraordinary circumstances required for equitable tolling, mere negligence or professional malpractice is insufficient.” Hunter v. Galaza, 366 Fed.Appx. 766, 767, 2010 WL 582674, at *1 (9th Cir. 2010) (citing Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)). A “‘garden variety claim of excusable neglect,' ... such as a simple ‘miscalculation' that leads a lawyer to miss a filing deadline ... does not warrant equitable tolling.” Holland, 560 U.S. at 651-52 (internal citations omitted). Rather, the attorney's misconduct must rise to the level of extraordinary circumstances. Id. “An unadorned failure to advise about a limitations period would, at best, be simple negligence.” Holeman v. Ryan, 2013 WL 3716603, at *10 (D. Ariz. Jul. 15, 2013); cf. Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003) (applying equitable tolling when petitioner's counsel, who was hired almost a year before the AEDPA deadline, did not take any steps to prepare the § 2254 petition, did not respond to petitioner's numerous letters and phone calls, and withheld petitioner's file for over two months after the limitations period expired); Holland, 560 U.S. at 651-53 (discussing potential for finding extraordinary circumstances when counsel misinformed petitioner about the AEDPA deadline, failed to advise petitioner that his state appeals had concluded, and failed to communicate with petitioner over period of years despite petitioner's repeated inquires).
Here, the record reflects that Petitioner was not abandoned by his attorney, and there is no allegation that counsel failed to communicate with Petitioner or failed to respond to Petitioner's inquiries regarding his post-conviction relief proceedings. Nor can it be said that Petitioner was left without functioning counsel. Instead, the record demonstrates the failure to properly calculate or comply with filing deadlines. This is nothing more than negligence. Therefore, the Court finds that counsel's alleged failures in this case do not constitute an extraordinary circumstance that stood in the way of Petitioner filing a timely § 2254 habeas petition and do not warrant equitable tolling. See, e.g., Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010) (“To the extent that his counsel's negligence in miscalculating the filing deadlines in his state proceedings resulted in Randle also missing the federal deadline, we have held that an attorney's negligence in calculating the limitations period for a habeas petition does not constitute an ‘extraordinary circumstance' warranting equitable tolling.”); Maples v. Thomas, 565 U.S. 266, 282 (2012) (restating “that an attorney's negligence, for example, miscalculating a filing deadline, does not provide a basis for tolling a statutory time limit”).
Furthermore, to the extent Petitioner complains about the various difficulties inherent in the State's post-conviction relief procedures, the lack of legal assistance available to inmates, lack of legal training, and unfamiliarity with the law cannot excuse his failure to comply with the statute of limitations. A “lack of legal knowledge, and need for some assistance to prepare a habeas petition are not extraordinary circumstances to warrant equitable tolling of an untimely habeas petition.” Baker v. Cal. Dep't. of Corr., 484 Fed.Appx. 130, 131, 2012 WL 2045962, at *1 (9th Cir. 2012); see 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.”); Trevizo v. Borders, 2018 WL 3017547, at *12 (E.D. Cal. June 14, 2018) (“[A] lack of legal assistance or lack of adequate legal assistance is not grounds for equitable tolling, because there is no right to legal assistance in post-conviction relief.”).
Thus, Petitioner has failed to meet his burden of demonstrating extraordinary circumstances that would justify equitable tolling.
D. 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, 398 (2013). To establish a “credible” claim of actual innocence, a petitioner must present “new reliable evidence” and “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). See also Jones v. Taylor, 763 F.3d 1242, 1247 (9th Cir. 2014) (“In order to pass through the Schlup actual innocence gateway, a petitioner must demonstrate that in light of new evidence, it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt.” (cleaned up)).
Petitioner asserts a claim of actual innocence arguing there was no evidence of guilt at his first trial and, therefore, the State caused a mistrial so it could “make a deal for absolute immunity [with a witness, J.M.] in return for testimony placing Petitioner in the vehicle and firing a weapon.” (Doc. 59 at 21-22.) Petitioner states that there were no other witnesses who identified him as being “in the vehicle or as one of the shooters,” and argues the “questionable nature of the only evidence demonstrates the weakness and lack of credibility of the State's evidence.” (Id.) Petitioner asserts that “because the evidence against [him] was nonexistent at the first trial and causing a mistrial was the only possible means of making a deal for testimony against Petitioner,” he has made a colorable showing of factual innocence since “a court cannot have confidence in the outcome of [his] trial.” (Id.)
In response, Respondents claim, contrary to Petitioner's assertions, that the prosecution intended to call J.M. as a witness at Petitioner's first trial before a mistrial was declared. (Doc. 61-1 at 19, 30, 54, 163-64; Exhs. B-D, J.) Respondents also argue it is well established that the testimony of a single uncorroborated witness can be sufficient to support a conviction. United States v. Katakis, 800 F.3d 1017, 1028 (9th Cir. 2015) (quoting United States v. Dodge, 538 F.2d 770, 783 (8th Cir. 1976)). Lastly, to the extent Petitioner challenges J.M.'s credibility, Respondents contend that J.M. testified at trial and was subject to cross-examination. Respondents state that credibility assessments are left for the jury. United States v. Scheffer, 523 U.S. 303, 313 (1998).
The Court has reviewed the record and considered the parties' arguments, and finds significant the fact that Petitioner fails to present new, reliable evidence of actual innocence needed to pass through the Schlup gateway. 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). “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). “Evidence that merely undercuts trial testimony or casts doubt on the petitioner's guilt, but does not affirmatively prove innocence, is insufficient to merit relief on a freestanding claim of actual innocence.” Jones, 763 F.3d at 1251.
Accordingly, having relied upon mere legal insufficiency, and failing to present new, reliable evidence of actual innocence, Petitioner has not met his burden to establish actual innocence that would excuse his failure to file a timely habeas petition.
V. MOTION TO STAY
On October 16, 2023, Petitioner filed Motion to Stay seeking to stay this matter so he can “complete the exhaustion requirements of the State of Arizona.” (Doc. 78.) Petitioner states he “intends to file an amended petition for habeas corpus, to include these claims when exhausted.” (Id.) Petitioner states he is going to raise “several claims including but not limited to Actual Innocence, Miscarriage of Justice, Illegal, Double Jeopardy, Wrongful Conviction[], and IAC etc ....” (Doc. 79.) Petitioner provides no additional information. Respondents object to a stay claiming that regardless of any further exhaustion of state court remedies, the petition for writ of habeas corpus is untimely and thus a stay would ultimately be futile. (Doc. 80.)
Petitioner claims he filed a notice of post-conviction relief on October 4, 2023. (Doc. 79.) Notably, a review of Petitioner's state court docket reveals that on November 2, 2023, the trial court dismissed Petitioner's PCR proceeding stating, in part, “Because Defendant provides no factual or legal support for these claims, the Court will not address them. In sum, Defendant has failed to state a claim for which relief can be granted in a second Rule 32 proceeding. Defendant must assert substantive claims and adequately explain why the claims are untimely. Ariz. R. Crim. P. 32.2(b). He has failed to meet this standard.” Maricopa County Superior Court, case #CR 2014-000910.
District courts have discretion to stay a habeas petition when it contains unexhausted claims. Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). “Stay and abeyance [is] available only in limited circumstances.” Rhines v. Weber, 544 U.S. at 277. District courts must use their discretion sparingly, because “routinely granting stays would undermine the AEDPA's goals of encouraging finality and streamlining federal habeas proceedings.” Blake v. Baker, 745 F.3d 977, 981-82 (9th Cir. 2014). A district court abuses its discretion if it grants a stay when a petitioner's unexhausted claims are plainly meritless. Rhines, 544 U.S. at 277. Moreover, there is no purpose to stay and abey an untimely federal habeas corpus petition in order to exhaust claims in state court because to do so could not cure a petitioner's failure to comply with AEDPA's statute of limitations. See Jordan v. Ryan, No. CV 11-0210-PHX-JAT, 2011 WL 4101517, at *4 (D. Ariz. Sept. 14, 2011).
As the Court has explained, Petitioner initiated habeas corpus proceedings over nine months after the limitations period expired. Petitioner fails to demonstrate that equitable tolling applies, and he has not met his burden to establish actual innocence excusing his failure to file a timely habeas petition. Because the Court concludes that the amended habeas petition is untimely, a stay and abeyance would be futile because Petitioner is unable to cure his failure to comply with the AEDPA's statute of limitations. Jordan, 2011 WL 4101517, at *4 (“Furthermore, the Petition in this case was untimely, and the granting of Petitioner's motion for stay and abeyance would not overcome his failure to meet the statute of limitations.”). Accordingly, the Court will recommend that Petitioner's Motion to Stay be denied.
VI. CONCLUSION
Based on the above analysis, the Court finds that Petitioner's amended Petition for Writ of Habeas Corpus is untimely and further finds that a stay and abeyance would be futile. Accordingly, IT IS THEREFORE RECOMMENDED that the amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 58) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that Petitioner's Motion to Stay (doc. 78) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the amended Petition is justified by a plain procedural bar and reasonable jurists would not find the 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), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 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(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.