Opinion
CV-21-02209-PHX-DWL (MTM)
10-18-2022
Mel A. Thomas, Petitioner, v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
Petitioner has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Doc. 1.
I. SUMMARY OF CONCLUSION
In 2008 Petitioner pled guilty to multiple counts involving sexual contact with a minor. Petitioner asserts: (1) a Fourteenth Amendment violation for denial of his request for a lawyer during an interview; (2) ineffective assistance of counsel because his lawyer left the courtroom just before Petitioner was sentenced; and (3) a Fourteenth Amendment and Fifth Amendment claim alleging vindictive prosecution. Petitioner's habeas petition is untimely by nine years. This Court recommends the petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction & Sentencing.
On July 11, 2008, Petitioner pled guilty in Maricopa County Superior Court to sexual conduct with a minor (Count 1) and attempted molestation of a child (Counts 2 and 3). Doc. 11-1, Ex. B at 10-13.
The presentence report summarized the facts as follows, beginning with the initial report in 2007:
A factual basis for the guilty plea may be established by a pre-sentence report. State v. Varela, 587 P.2d 1173, 1175 (Ariz. 1978).
[t]he victim advised the officer that over a period of three years [Petitioner] ha[d] fondled her breasts underneath her bra and clothing while they wrestled and played. During one incident, [Petitioner] grabbed the victim's hand and placed it on his penis. The victim was approximately thirteen years old when these incidents began. [Petitioner] was the boyfriend of the victim's mother and the victim called [Petitioner] [“]dad.[”]
[In an interview] . . . the victim stated . . . [o]ver [a] period of three years [Petitioner] had the victim perform oral sex on him approximately fifty times. He showed her pornographic movies so she would know how to have sex and he would be naked while they watched the movies. [Petitioner] told her on several occasions if she told anyone what they did he would hurt her.
After a confrontation call was made and taped between the victim and [Petitioner] the police went to his residence and arrested him. In an interview with the police [Petitioner] told police officers he and the victim's mother allowed the children to watch adult pornographic videos as a learning tool about sex. He felt it was wrong but their mother said it was alright. He also stated that one day when the victim was ten or eleven years old she asked him what it was like to “suck dick.” He wanted to show her the right way to do it so he allowed her to perform oral sex on him. . . . [Petitioner] admitted it was a wrong decision and he was adamant that it happened on one occasion only.Doc. 11-1, Ex. A at 3.
On January 29, 2009, the Superior Court sentenced Petitioner to a 15-year term of imprisonment on Count 1 and lifetime probation on Counts 2 and 3. Id., Ex. C at 25.
B. Post-Conviction Relief.
Petitioner filed a Notice of Post-Conviction Relief on March 31, 2009. Doc. 11-1, Ex. D at 31. After Petitioner's appointed counsel found no colorable issues (doc. 11-1, Ex. F. at 39), Petitioner filed a pro se PCR petition on December 9, 2009, and refiled it on December 21, 2009. Id., Ex. G at 48-52; doc. 11-2, Ex. Z at 88. On April 6, 2010, the PCR Court dismissed the Petition for failure to raise any colorable claims. Doc. 11-1, Ex. K at 87-90. On November 17, 2011, the Arizona Court of Appeals denied Petitioner's Petition for Review. Id., Ex. M at 103.
Petitioner filed a second, third, and fourth PCR Notice, all of which were dismissed as untimely or successive. Id., Ex. O at 125-127 (second PCR); doc. 11-2, Ex. S. at 50-52 (third PCR); doc. 11-2, Ex. U at 58-59 (fourth PCR). For his fourth PCR, Petitioner sought review in the Arizona Court of Appeals. Doc. 11-2, Ex. V at 61-66. On December 9, 2021, the Arizona Court of Appeals granted review but denied relief. Id., Ex. W at 68-69. Petitioner did not seek further review; the Arizona Court of Appeals issued its mandate on January 21, 2022. Id., Ex X at 71.
III. PETITION FOR A WRIT OF HABEAS CORPUS
This Court may review petitions for a writ of habeas corpus from individuals held in custody under a state-court judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a).
On December 27, 2021, Petitioner filed a habeas petition. Doc. 1. As summarized by this Court, Petitioner raises:
In Ground One, Petitioner asserts his Fourteenth Amendment right to due process was violated because Petitioner requested a lawyer three times during an interview while he was under arrest, and each time, he was denied.
In Ground Two, Petitioner claims he received ineffective assistance of counsel because his attorney “walk[ed] out” of the courtroom just before Petitioner was sentenced, Petitioner
was sentenced without his attorney present, and Petitioner did not “understand what post-conviction relief meant.”
In Ground Three, Petitioner claims his Fifth and Fourteenth Amendment rights were violated “by means of vindictive prosecution” because the prosecutor did not allow Petitioner “to be heard by the grand jury his side of what had happen[ed].”Doc. 6 at 2-3. Respondents assert that the Petition is untimely. Doc. 9. Petitioner filed a Reply. Doc. 12.
IV. TIMELINESS
Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. Whether a petition is barred by the statute of limitations must be resolved before considering other procedural issues or the merits of individual claims. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002).
The AEDPA imposes a one-year limitation period “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). In the present case, because Petitioner pled guilty, his PCR proceeding was “of-right” rather than collateral review, and the statute of limitations did not begin to run until the conclusion of his PCR proceeding. Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (“Because a Rule 32 of-right proceeding is a form of direct review, AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review.”).
The Arizona Court of Appeals denied Petitioner's first Petition for Review on November 17, 2011. Doc. 11-1, Ex. M at 103. Under the operative rules at the time, Petitioner had 30 days, or until December 19, 2011, to file an appeal to the Arizona Supreme Court challenging the denial of his PCR petition. See Ariz. R. Crim. P. 31.19(a) (renumbered as Ariz. R. Crim. P. 31.21(b)(2)(A)) (a party has thirty (30) days in which to file a petition for review). Petitioner did not file an appeal to the Arizona Supreme Court. As a result, Petitioner's convictions became final, and the one-year AEDPA limitation period to file a timely habeas petition began to run, on December 19, 2011. Accordingly, under AEDPA, Petitioner's deadline to file a timely habeas petition was December 20, 2012. See 28 U.S.C. § 2244(d)(1)(A). Because Petitioner did not mail his habeas petition until December 22, 2021 [doc. 1], his Petition is untimely by nine years.
a. Statutory Tolling
The conclusion that Petitioner's habeas petition is untimely is not altered by the fact that Petitioner filed a second, third, and fourth PCR Notice, all of which were dismissed as untimely or successive, and as not having raised or supported a claim for relief that could be granted in an untimely PCR. See Doc. 11-1, Ex. O at 125-127 (second PCR); doc. 112, Ex. S. at 50-52 (third PCR); doc. 11-2, Ex. U at 58-59 (fourth PCR). A state petition that is not filed within the state's required time limit is not “properly filed,” and is therefore not entitled to statutory tolling. 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 the AEDPA's tolling provision). Petitioner is not entitled to statutory tolling.
b. Equitable Tolling
Courts have equitably tolled AEDPA's statute of limitations in certain circumstances. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). Equitable tolling applies if a petitioner shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (internal quotation marks and citation omitted). “[Extraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time and the extraordinary circumstances [must be] the cause of the prisoner's untimeliness.” Id. (citation omitted). Petitioner bears the burden of establishing equitable tolling's requirements. Pace, 544 U.S. at 418.
Petitioner has not alleged or proven that extraordinary circumstances prevented him from filing a timely habeas petition. Petitioner states only that if his habeas petition is untimely, the Court should understand that Petitioner has been “doing [his] best when it comes to due-diligence.” Doc. 1 at 13-14. However, a Petitioner's lack of understanding of the right to file a § 2254 motion does not toll the statute of limitations period. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding a pro se petitioner's ignorance of the law “is not, by itself, an extraordinary circumstance warranting equitable tolling”); Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness.”).
Petitioner does not assert that he is actually innocent. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or expiration of the AEPA statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 383-84 (2012). “Actual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615 (1998). In his Reply, Petitioner states that he is “not claiming that he is actually innocent. He is not at all trying to overturn his conviction.” Doc. 12 at 4. Petitioner seeks a reduced sentence “without overturning the conviction.” Doc. 1 at 15.
Accordingly, no exception applies to excuse the untimely filing of Petitioner's habeas petition.
V. CONCLUSION
The Court concludes that Petitioner's habeas petition is untimely without excuse. The record is sufficiently developed, and the Court finds an evidentiary hearing is unnecessary for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS RECOMMENDED the Petition (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENED a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy 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 fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.