Opinion
CV-22-1327-PHX-ROS (JFM)
05-12-2023
Anthony Allen Thomas, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE
I. MATTER UNDER CONSIDERATION
Petitioner has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 4). 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. ORIGINAL CONVICTION
Petitioner was indicted in Maricopa County Superior Court on August 1, 2002 on charges of molestation of a child and public indecency to a minor. (Exh. A, Indictment; Exh. G, Pro. Viol. Rep. at 4.) (Exhibits to the Answer, Doc. 11, are referenced herein as “Exh. .”) Petitioner entered into a written Plea Agreement (Exh. B) and pled guilty to two amended counts of attempted child molestation. (Exh. C, M.E. 1/9/03.) Petitioner was sentenced on February 17, 2003 to 10 years in prison on the first charge, and a suspended sentence and lifetime probation on the second charge. (Exh. D, Sentence.) / /
B. FIRST PCR PROCEEDING -20101
Petitioner did not file a direct appeal. (Amend. Pet., Doc. 4 at 2.) However, some seven years after his sentencing, he commenced his first post-conviction relief proceeding on May 5, 2010. It was dismissed on July 1, 2010. He then sought review sought by the Arizona Court of Appeals. The appellate court denied review on May 15, 2012. (Exh. S, Superior Court Docket at 2.) (See also Exh. R, Order 8/12/22 at 1 (referencing pre revocation “Rule 33 proceeding”).)
C. PROBATION REVOCATION
Petitioner was eventually released from prison and began serving his probation term on Count 2. On March 11, 2019, another Petition to Revoke Probation was filed by a probation officer (Exh. E), alleging violations of conditions of probation regarding: participation in sex offender treatment (Condition 11); associating with known criminals engaged in criminal behaviors (Cond. 13); and failure to pay probation service fees (Cond. 15b). Petitioner eventually admitted the violation of Condition 13 (Exh. H, M.E. 4/9/19) and on April 25, 2019 his probation was revoked and he was sentenced to 10 years in prison on the amended Count 2.
Probation revocation proceedings were commenced on May 27, 2014, but he was reinstated on probation on September 22, 2014. (Exh. S, Superior Court Docket at 2.)
An Amended Disposition Order was filed on May 16, 2019 (Exh I). That Order made no provision for a continuing sentence of probation. It did, however, impose a sentence of “Community Supervision... pursuant to A.R.S. § 13-603(I).” That statute provides:
I. If a person is convicted of a felony offense and the court sentences the person to a term of imprisonment, the court at the time of sentencing shall impose on the convicted person a term of community supervision. The term of community supervision shall be served consecutively to the actual period of imprisonment if the person signs and agrees to abide by conditions of supervision established by the state department of corrections. Except pursuant to subsection J of this section, the term of community supervision imposed by the court shall be for a period equal to one day for every seven days of the sentence or sentences imposed.Ariz. Rev. Stat. § 13-603(I).
D. SECOND PCR PROCEEDING - 2019
On July 30, 2019, Petitioner commenced his second PCR proceeding by filing a PCR Notice (Exh. K) seeking relief from his probation revocation and sentence, and a “Special Action” petition (Exh. L) referencing Arizona Rule of Civil Procedure “11.3(a).” The proceeding was dismissed as untimely on April 21, 2022. (Exh. M, Order 4/21/22).
Petitioner then filed a Petition directed to the “Supreme Court of Appeals Division One” (Exh. N), which was filed with the Arizona Court of Appeals on May 9, 2022. The appellate court granted Petitioner through July 8, 2022 to file a proper petition for review. (Exh. T, Ct. App. Docket.) Petitioner did not, and the court dismissed the proceeding on July 22, 2022. (Exh. O, Order 7/22/22.)
Petitioner asserts in his Petition that he sought review by the “Arizona Supreme Court of Appeals,” but references the Court of Appeals' case number (“1CACR 22-0210 PRPC”), a filing date of June 6, 2022 and a denial date of “June 22, 2022.” (Amend. Pet., Doc. 4 at 3, 4.) The undersigned finds this to be a reference to his attempted petition for review by the Arizona Court of Appeals of his 2019 PCR proceeding.
Petitioner sought no further review of this proceeding.
E. THIRD PCR PROCEEDING - 2022
On July 1, 2022, while his petition for review of the 2019 PCR proceeding was pending, Petitioner filed another PCR Notice (Exh. P) and pro per “*Successive* Petition for Post-Conviction Relief” (Exh. Q), challenging his conviction and sentence. On August 12, 2022, that third PCR proceeding was dismissed on the basis of: preclusion of previously litigated claims; waiver of claims; and failure to meet the requirements for exceptions to the rules. (Exh. R, Order 8/12/22.)
At least as of the September 20, 2022 docket print date, Petitioner does not appear to have sought review of that ruling. (See Exh. S, Trial court docket.)
F. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Kingman, Arizona, commenced the current case by filing his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 8, 2022 (Doc. 1). That Petition was dismissed with leave to amend on August 15, 2022, based on Petitioner's failure to utilize the required form. Petitioner then filed his Amended Petition (Doc. 4) on September 1, 2022.
Petitioner's Amended Petition asserts two grounds for relief. Ground One pertained to his probation violation admission being prompted by a desire to end the lifetime probation. Ground Two asserts a double jeopardy violation.
On screening, the Court dismissed Ground One for failure to adequately state a claim, and required a response to Ground Two. (Order 9/14/22, Doc. 6.) The Court described Ground Two as follows:
In Ground Two, Petitioner asserts his Fifth Amendment right to be free from double jeopardy has been violated because he is currently serving a probation revocation sentence, and the Arizona Department of Corrections has stated that Petitioner will be placed back on probation “for the exact same offen[s]e” for which he is already serving a term of imprisonment.(Id. at 2.)
Response - On October 20, 2022, Respondents filed their Limited Answer (Doc. 11). Respondents argue that Petitioner's Petition is untimely, and that Ground Two is procedurally defaulted because Petitioner has not properly exhausted his state remedies on his federal double jeopardy claim.
Reply - Petitioner was given through November 28, 2022 to file a reply. (Order 10/21/22.) Petitioner did not timely file a reply.
Supplement - On December 12, 2022, the undersigned tentatively concluded that Petitioner's amended sentence on revocation provided for no successive term of probation, only for community supervision on release upon completion of his sentence. The parties were directed to confer in an effort to settle this matter, and Plaintiff was directed to file a declaration with specifics regarding the advice from prison officials regarding a successive term of probation. (Order 12/12/22, Doc. 15.)
Respondents filed a Notice of Completion (Doc. 16) reporting the parties conferred but were unable to settle the case. Respondents further reported that counsel subsequently consulted with an administrator in ADCRR's Time Computation Unit, who reported that Petitioner's 2019 amended sentence had not been uploaded to its database, causing personnel to provide incorrect information to Petitioner. However, Respondents' assertions were made by way of counsel's report of hearsay (and appear to be intended to show the truth of the matter asserted), rather than by a declarant or affiant with personal knowledge.
Petitioner subsequently filed a purported “Affidavit” (Doc. 17) regarding the advice that he was subject to a second term of probation. Petitioner asserts the information came from COIII Gonzalez during a “correctional plan” in May or June 2019. Gonzalez told him ADCRR's system reflected he was to be released on probation. Plaintiff's “Affidavit” asserted it was sworn, but contains no indication that Plaintiff was placed under oath by an official with authority to do so, e.g. a notary public, etc., nor was it made as a declaration under penalty of perjury pursuant to 28 U.S.C. § 1746.
Petitioner and Respondents were given through April 14, 2023 to cure the evidentiary deficiencies in their respective filings. (Order 3/31/23, Do. 18.) Respondents filed an Affidavit (Doc. 19-1) by an ADCRR employee relating the discovery of the error in the ADCRR records, and avowing that updating the records with Petitioner's 2019 sentence result in the “cancelling” of the previously reported second term of probation.
Arguably, given the undisputed correction of ADCRR's records and withdrawal by its personnel of any assertion of a second probation term, this Petition has been rendered moot.
Petitioner has not responded.
III. APPLICATION OF LAW TO FACTS
A. CONSTRUCTION OF PETITIONER'S CLAIM
The express language of Petitioner's claim is not that the state has actually imposed on him a second sentence of probation (to commence after completion of his prison sentence), but that the Arizona Department of Corrections has advised him that he will be subject to such probation. Indeed, the undersigned finds that Petitioner's 2019 sentence imposes no successive term of probation. Instead, it imposes a limited term of community supervision after completion of his prison sentence stemming from the probation revocation.
B. TIMELINESS
Respondents assert that Petitioner's Petition is untimely. There is a 1-year statute of limitations for applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitions filed beyond the one-year limitations period are barred and must be dismissed. Id. That one-year statute of limitations applies only to habeas petitions “by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1)(A).
It is true that Petitioner is not challenging his custody “pursuant to the judgment of a State court.” Indeed, the parties agree that there was no state judgment imposing a second term of probation. Rather, Petitioner is challenging his anticipated custody pursuant to the previously expressed intent of ADCRR to release Petitioner on probation. However, the Ninth Circuit has concluded that the decision being challenged does not govern the applicability of § 2244(d), only the source of the Petitioner's current custody. “We conclude § 2244's one-year limitation period applies to all petitions filed by persons ‘in custody pursuant to the judgment of a State court,'” even if the petition challenges an administrative decision rather than a state court judgment.” Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004). Accordingly, the limitations period applies to Petitioner's Petition.
The commencement of the limitations period generally is on “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). Respondents properly calculate from Petitioner's April 25, 2019 sentencing, extended to July 24, 2019 for the time Petitioner had to seek review by way of a PCR petition. (Answer, Doc. 11 at 7.) See Burton v. Stewart, 549 U.S. 147 (2007) (for purposes of the habeas statute of limitations, the “sentence is the judgment”); Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007) (“Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).”); and Ariz. R. Crim. Proc. 33.4(b)(3)(A) (90 days to file PCR).
It is true the statute provides a later commencement on “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)(D). See e.g. Shelby, 391 F.3d at 1066 (calculating from administrative decision, not finality of state court judgment). Here, however, Petitioner actually discovered the factual predicate of his claim “[o]n or about the end of May and through the begining [sic] of June of 2019,” when he alleges he was advised by ADCRR personnel that he had an unserved probation sentence. (Mot. Provide, Doc. 17 at 3 (purported “Affidavit”).) (There appears no reason to conclude that he could have discovered it any earlier through the exercise of due diligence.”)
Therefore, Petitioner's one year commenced running after July 24, 2019, and without any tolling expired on July 24, 2020.
For purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply. 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 (9thCir. 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).
The AEDPA provides for statutory 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). However, such tolling 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). Here, Petitioner's Second PCR proceeding (filed July 30, 2019) was dismissed as untimely, and thus did not result in statutory tolling. Id.
Petitioner's Third PCR proceeding was not commenced until July 2022, long after his one year had expired. Once the statute has run, a subsequent post-conviction or collateral relief filing does not reset the running of the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
The undersigned assumes arguendo (in Petitioner's favor) that his Amended Petition (Doc. 4) relates back to the filing of original Petition (Doc. 1). See Fed.R.Civ.P. 15(c) (relation back of amended pleading). But see Mayle v. Felix, 545 U.S. 644, 650 (2005) (amended habeas petition “does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth”).
Petitioner's original Petition (Doc. 1) was filed on August 8, 2022. However, the Petition is dated August 4, 2022. “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) (emphasis added). Apart from the date of the Petition, Petitioner proffers nothing to suggest that his Petition was delivered to prison officials for mailing, or that it was delivered prior to its filing date. Nonetheless, because it would be reasonable to assume that Petitioner did deliver his petition to prison officials for mailing, and to assume that it was done prior to the filing date, and because it does not affect the outcome, the undersigned assumes (in Petitioner's favor) that his Petition was delivered to prison officials for mailing on the date it was signed, and that it should be deemed “filed” as of that date, August 4, 2022.
Even so, Petitioner's original Petition was over two years delinquent. "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) (emphasis added). Here Petitioner makes no assertion that he is entitled to equitable tolling. (See Amended Petition. Doc. 4 at 11.) The undersigned finds no basis for such tolling.
To the extent that Petitioner might rely upon his efforts to exhaust his state remedies in his second and third PCR proceedings as cause for his delay, Pace v. DiGuglielmo, 544 U.S. 408 (2005) forecloses such reliance. In Pace, 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.
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 (2013) (emphasis added). Petitioner makes no claim of actual innocence, and the record reveals none.
Consequently, the Petition must be dismissed with prejudice as untimely.
C. OTHER DEFENSES
Because the undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations, Respondents other defenses are not reached.
IV. CERTIFICATE OF APPEALABILITY
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). “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 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:
(A) Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 4) be DISMISSED WITH PREJUDICE.
(B) 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. See also Rule 10, Rules Governing Section 2255 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.”