Opinion
CV-22-00908-PHX-DWL (DMF)
02-23-2023
Dennis Victor Tourville, Jr., Petitioner, v. David Shinn, et al., Respondents.
THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 8 at 4)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-22-00908-PHX-DWL (DMF).
Petitioner Dennis Victor Tourville, Jr. (“Petitioner”), who is confined in the Arizona State Prison Complex in Florence, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on May 26, 2022. (Doc. 1) On the same date, Petitioner moved for appointment of counsel. (Doc. 2) On June 21, 2022, the Court ordered Respondents to answer the Petition. (Doc. 8 at 3) On June 22, 2022, the Court denied Petitioner's motion for appointment of counsel without prejudice, stating that “Petitioner may renew the motion for appointment of counsel if the Court later determines that a hearing in front of the District Judge is required.” (Doc. 9)
Respondents filed their Limited Answer to the Petition on November 10, 2022. (Doc. 18) On November 28, 2022, Petitioner filed a second motion for appointment of counsel. (Doc. 21) On November 29, 2022, the Court again denied Petitioner's second motion for appointment of counsel without prejudice. (Doc. 23)
On December 20, 2022, Petitioner filed a Motion to Amend, requesting to add an additional claim to the Petition. (Doc. 25) No response to the Motion to Amend was filed.
The Court granted Petitioner two extensions of time to file his reply in support of the Petition. (Docs. 27, 30) On January 31, 2023, Petitioner timely filed his reply in support of the Petition. (Doc. 32)
For the reasons set forth below, it is recommended that the Petition (Doc. 1) be dismissed with prejudice as untimely and that a certificate of appealability be denied. Further, it is recommended that Petitioner's Motion to Amend (Doc. 25) be denied.
I. BACKGROUND
A. Summary of Events Leading to Charges Against Petitioner
Petitioner's presentence report summarized the factual basis of the charges against Petitioner as follows:
During 2006, [Petitioner] became involved in a romantic relationship with [L.B.], the mother of [F.R.], [K.R.], and a third female minor child. [Petitioner] and [L.B.] resided together and the children stayed with them periodically. On November 16th, 2010, [F.R.] told police [Petitioner] had been raping her over a two year period while she was living in his residence. Despite [F.R.'s] objections, [Petitioner] continually engaged in anal, vaginal, and oral sexual activity with her including one incident where, after [F.R.] had been involved in a car accident, [Petitioner] gave her some unknown medication. She stated [Petitioner] later told her that they had sex that night, but [F.R.] had no memory of this occurring. [Petitioner] also told her he had photographs of their sexual encounter but he did not show them to her. On other occasions, [Petitioner] would drive her to distant, secluded areas and tell her if she did not have sex with him, he would drop her off them and make her walk home. In addition to his home, [Petitioner] also sexually assaulted [F.R.] at his work and in the parking lots of area stores.
[F.R.] stated she allowed this to continue and did not report the abuse because she was terrified of [Petitioner], as he had spoken of “beating people up” and she has two younger sisters who visit with [Petitioner] and her mother on the weekends. In October 2010, [F.R.] reached a point where she could no longer take the abuse and moved in with her father and family. [Petitioner] became angry and began an inundation of harassing behavior starting with hacking into [F.R.'s] Facebook account and posting unauthorized nude photos of her and comments stating they were having a sexual relationship. [F.R.] attempted to obtain an order of protection against [Petitioner] and he successfully had it quashed and was instead able to get one of his own. [Petitioner] attempted to file over twenty police reports against [F.R.] including an alleged bomb threat. He would then contact her stating he would drop all of his allegations if she would just talk to him. When these efforts were unsuccessful, [Petitioner] purchased a cell phone and registered it [F.R.'s] name. He then sent threatening messages from the phone to himself and included an electronic signature in [F.R.'s] name. [Petitioner] also submitted a petition with Recovery Innovations of Arizona, stating [F.R.] was homicidal and suicidal, resulting in [F.R.] being involuntarily committed for psychiatric evaluation. Computers confiscated from [Petitioner's] home during the execution of the search warrant yielded multiple non-consensual photos and videos [Petitioner] took of [F.R.]. Several firearms were also found near the area where [Petitioner] slept in the home.
On November 29th, 2010, the thirteen year-old minor female spoke with police and reported [Petitioner], on one occasion while she was alone with him, had her get completely undressed. He then asked her if she wanted him to play with her “thing.” She stated she did not but he pushed her down on a couch and pushed her legs apart. He unzipped his pants and the child began crying, stating repeatedly she just wanted to go home. [Petitioner] stopped and took her home. The victim stated she was age twelve at the time of this incident. She recounted three other incidents where [Petitioner] made her show him her breasts and made sexual comments.
On March 29th, 2011, [K.R.] met with police to talk about several sexual incidents that had occurred between her and [Petitioner]. She recalled the first episode happening when she was either thirteen or fourteen years-old. She stated [Petitioner] sat next to her on a couch while she was watching a movie, placed his hand inside her pants and underwear, and began massaging her private area. [K.R.] stated she quickly got up off the couch and said she was going to bed. On other occasions, [Petitioner] had pulled her shirt and attempted to look at her breasts but she immediately pulled away.(Doc. 18-1 at 30-31)
This Report and Recommendation uses the victims' and witnesses' initials in lieu of full names.
In Arizona, the factual basis for a guilty plea “may be ascertained from the record including presentence reports, preliminary hearing reports, admissions of the defendant, and from other sources.” State v. Varela, 120 Ariz. 596, 598 (1978).
Petitioner was arrested on October 31, 2012. (Id. at 31) When taken into custody, Petitioner stated that he was a victim of F.R.'s “fatal attraction” and “made no other comments.” (Id.)
B. Petitioner's Charges, Pleas, and Sentences
On November 6, 2012, a Maricopa County grand jury indicted Petitioner with twenty-two crimes, including nine counts of sexual assault, each a class two felony; two counts of voyeurism, each a class five felony; one count of stalking, a class five felony and a domestic violence offense; two counts of computer tampering, each a class five felony and one a domestic violence offense; one count of aggravated harassment, a class six felony and a domestic violence offense; one count of perjury, a class four felony; one count of kidnapping, a class two felony and a dangerous crime against children; one count of attempted child molestation, a class three felony and a dangerous crime against children; two counts of attempted sexual abuse, each a class four felony and a dangerous crime against children; one count of child molestation, a class two felony and a dangerous crime against children; and one count of misconduct involving weapons, a class four felony. (Id. at 13-22)
Petitioner was represented by appointed counsel Rodrick Carter during trial court proceedings. (See id. at 27, 46, 124) On February 21, 2014, in Maricopa County Superior Court case CR2012-156586-002 and pursuant to a plea agreement, Petitioner pled guilty to one count of child molestation, a class two felony and dangerous crime against children (Count 20); two counts of sexual assault, each a class two felony (Counts 3 and 4); one count of attempted child molestation, a class three felony and dangerous crime against children (amended Count 18); and one count of attempted sexual abuse, a class four felony (amended Count 19). (Id. at 24-28) The remaining seventeen charges against Petitioner were dismissed. (Id. at 25) The plea agreement set forth a stipulated sentence, including 10 years imprisonment for Count 20, 5.25 to 8.5 years imprisonment each for Counts 3 and 4, and lifetime probation with sex offender registration and restitution for amended Counts 18 and 19. (Id.) The plea agreement included that all imprisonment “must be served as flat time, and must run consecutively (20.5 to 27 years DOC).” (Id.) Petitioner initialed next to each term of the plea agreement (id. at 24-27), including terms of an addendum pertaining to Petitioner's registration as a sex offender (id. at 28), and Petitioner signed the plea agreement (id. at 27-28).
A presentence report was prepared for Petitioner's March 21, 2014, sentencing. (Id. at 30-44) On the day of sentencing, the superior court found that Petitioner knowingly, intelligently, and voluntarily waived all pertinent constitutional and appellate rights by pleading guilty. (Id. at 47) On March 21, 2014, the superior court sentenced Petitioner to a 10-year term of imprisonment on Count 20, consecutive 8.5-year terms of imprisonment for Counts 3 and 4 following Petitioner's imprisonment on Count 20, and lifetime probation for amended Counts 18 and 19 following Petitioner's release from prison. (Id. at 48-49) The superior court required Petitioner to register as a sex offender and imposed fees and conditions of probation. (Id. at 49-51) The superior court waived community supervision for Counts 3, 4, and 20 due to Petitioner's lifetime probation on Counts 18 and 19. (Id. at 48)
Also on March 21, 2014, Petitioner signed and acknowledged his receipt of a form titled “Notice of Rights of Review After Conviction and Procedure.” (Id. at 54) The “Notice of Rights of Review After Conviction and Procedure” signed by Petitioner informed Petitioner that he did not have a right to appeal if he pleaded guilty and that relief could be sought only by a petition for post-conviction relief (“PCR”). (Id.) The “Notice of Rights of Review After Conviction and Procedure” signed by Petitioner stated that Petitioner had 90 days following entry of judgment and sentence to file a PCR notice. (Id.) The “Notice of Rights of Review After Conviction and Procedure” signed by Petitioner expressly stated that if Petitioner wanted to file a PCR notice, Petitioner could contact his lawyer or Petitioner could obtain a form to file his PCR notice himself. (Id.) The “Notice of Rights of Review After Conviction and Procedure” signed by Petitioner stated that Petitioner could file the PCR notice before leaving the courtroom and on the day of sentencing if Petitioner wished to do so. (Id.) The “Notice of Rights of Review After Conviction and Procedure” signed by Petitioner stated that the appropriate form for the PCR notice could be obtained from “the clerk of court, jail, or prison[.]” (Id.) The “Notice of Rights of Review After Conviction and Procedure” signed by Petitioner stated that if Petitioner did not timely file a PCR notice, Petitioner “may never have another opportunity to have any errors made in [Petitioner's] case corrected by another court.” (Id.)
C. Petitioner's Non-PCR Motions and Appeals
Following Petitioner's sentencing on March 21, 2014, Petitioner did not file a PCR notice within ninety days. (Id. at 7-8) Petitioner filed numerous motions in the state courts in case CR2012-156586-002 prior to filing his PCR notice in May 2019 over five years after his sentencing. (Id.) Petitioner filed the first of these non-PCR motions over three and a half years after his sentencing. (Id. at 8, 56-59) On December 28, 2017, Petitioner filed a “Motion to Compel Rodrick Carter to Release Entire File to [Petitioner]” in the superior court. (Id. at 56-59) In this first motion, Petitioner asserted that Rodrick Carter, his attorney during trial court proceedings, had not responded to Petitioner's request for his file in case CR2012-156586-002. (Id. at 56) On July 3, 2018, Petitioner filed a letter in the superior court inquiring as to the status of his motion to compel. (Id. at 61) Petitioner also filed a petition to the Arizona Supreme Court regarding the superior court's lack of ruling on his motion to compel, and on July 13, 2018, the Arizona Supreme Court issued an order referring the matter back to the superior court and taking no further action. (Id. at 63) On July 31, 2018, the superior court issued an order taking no further action on Petitioner's motion to compel, stating that the court did not have attorney Rodrick Carter's file and that only Rodrick Carter could release the file to Petitioner. (Id. at 65)
See footnote 12, infra.
Petitioner attached a November 2017 letter he wrote to the Maricopa County Office of the Public Defender requesting his file. (Doc. 18-1 at 57) Petitioner also attached a November 2017 letter in response stating that the Maricopa County Public Defender's Office had not represented Petitioner in case CR2012-156586-002, stating that the Maricopa County Public Defender's Office was therefore forwarding Petitioner's letter to his last attorney of record (Rodrick Carter), and providing to Petitioner Rodrick Carter's current address. (Id. at 58)
On October 26, 2018, Petitioner filed a letter in the superior court. (Id. at 67-91) In his letter, Petitioner argued that the detective and prosecutor in his case presented false information to the grand jury, that Petitioner did not knowingly or willingly accept the plea agreement because he was blind and could not read the plea agreement, that the plea agreement was altered, and that the initials on the plea agreement were not Petitioner's. (Id. at 68-69) On October 30, 2018, the superior court issued a minute entry stating that it did “not find any basis to take any further action on” Petitioner's October 2018 correspondence. (Id. at 93)
This is the filing and operative date of the superior court's ruling. See Ariz. R. Crim. P. 1.3(c).
Between June and November 2018, Petitioner submitted several motions to compel production of exculpatory evidence from the prosecutor, transcripts from his trial court proceedings, and a “docket index.” (Id. at 95-98, 100, 102) The clerk of the superior court provided Petitioner instructions for obtaining records from his case, including transcripts of his trial court proceedings. (Id. at 99, 101, 103) The superior court later ordered attorney Rodrick Carter to provide Petitioner “with his complete case file, including all disclosures, correspondence, research, and transcripts, by no later than June 28, 2019” and to “file a Notice of Compliance” by that same date. (Id. at 193; see also Doc. 18-3 at 44) The superior court ordered that the “Notice of Compliance must contain an itemized list of what constituted ‘the file.'” (Doc. 18-1 at 193; see also Doc. 18-3 at 44)
On December 10, 2018, Petitioner appealed his convictions and sentences in the Arizona Court of Appeals. (Doc. 18-1 at 107-54) On January 18, 2019, the court of appeals dismissed Petitioner's appeal, finding that it lacked jurisdiction over Petitioner's appeal. (Id. at 156-57) The court of appeals stated that if Petitioner sought review of his convictions or sentences, Petitioner was required to proceed pursuant to Ariz. R. Crim. P. 32 because Petitioner's judgment and sentence were entered pursuant to Petitioner's plea agreement. (Id.)
Petitioner's filing is stamped multiple times, including as received by the court of appeals on November 28, 2018, and as filed in the court of appeals on December 10, 2018. (Doc. 18-1 at 107) The court of appeals docket reflects that Petitioner's notice of appeal was filed December 10, 2018. (Id. at 105)
On December 14, 2018, Petitioner filed a second notice of appeal in the court of appeals, appealing his convictions and sentences in case CR2012-156586-002, as well as the superior court's October 30, 2018, decision. (Id. at 161-67) The court of appeals dismissed Petitioner's appeal, finding that it had no jurisdiction and reminding Petitioner that he had to proceed pursuant to Ariz. R. Crim. P. 32 if he sought review of his convictions and sentences. (Id. at 169-70) The court of appeals further determined that the superior court's October 30, 2018, decision was not appealable. (Id. at 169)
The court of appeals referred to the date of the superior court's order as October 26, 2018, the date the minute entry was issued. (Doc. 18-1 at 93, 169)
On July 9, 2019, Petitioner moved for sanctions against attorney Rodrick Carter because Petitioner alleged that Rodrick Carter had not sent Petitioner his file. (Id. at 18789) Petitioner further requested audio or video transcripts of Petitioner reading and signing his plea agreement. (Id. at 191) On August 15, 2019, the superior court found that attorney Rodrick Carter had not complied with the previous court order to provide Petitioner's file and file a corresponding notice of compliance; the superior court also set a hearing for Rodrick Carter to show cause for his failure to follow the court's previous order to provide Petitioner's file and to file a corresponding notice of compliance. (Id. at 193-94) The superior court ordered that if Rodrick Carter filed an appropriate notice of compliance before the order to show cause hearing, the hearing would be vacated. (Id. at 194)
The hearing was reset from January 31, 2020, to February 28, 2020. (Id. at 193-194, 298)
On August 15, 2019, Petitioner filed a letter in the superior court referencing an application for restoration of his civil rights; asserting that he had received a letter from the superior court on August 10, 2019, stating that case number CR2012-156586-002 did not exist; and requesting his release if case CR2012-156586-002 did not exist. (Id. at 196) On October 15, 2019, the superior court issued an order stating that the court's record in case CR2012-156586-002 did not reflect receipt of an application for the restoration of Petitioner's rights, treating the letter as Petitioner's request for restoration of his civil rights, finding that Petitioner was ineligible for restoration of his civil rights, and denying restoration of Petitioner's civil rights. (Id. at 198) Petitioner subsequently requested a copy of his request for restoration of his rights. (Id. at 200) The request was denied for the reasons the court had previously stated. (Id. at 249)
On February 19, 2020, attorney Stephen Johnson entered a special appearance for attorney Rodrick Carter and filed an affidavit from Rodrick Carter, in which Rodrick Carter swore that he sent Petitioner a paper copy of his case file in August 2018, as well as sent Petitioner a compact disk with digital copies of the file in October 2018. (Id. at 202-05) Based on the affidavit filed by attorney Rodrick Carter, on February 28, 2020, the superior court vacated the order to show cause hearing pertaining to Rodrick Carter without imposing any sanctions. (Id. at 298) Petitioner appealed the superior court's vacatur and denial of sanctions against Rodrick Carter. (Id. at 292) On May 18, 2020, the court of appeals determined that the superior court's order denying Petitioner's request to sanction Rodrick Carter was not appealable. (Id. at 300)
On July 24, 2020, Petitioner filed a “Motion for Appeal of Conviction.” (Doc. 182 at 5-120) On September 9, 2020, the court of appeals dismissed Petitioner's appeal. (Id. at 122-23, 125-27) The court of appeals determined that it lacked jurisdiction over Petitioner's appeal and stated that Petitioner had to proceed pursuant to Ariz. R. Crim. P. 33 if Petitioner sought review of his convictions or sentences. (Id.)
Petitioner's motion was stamped three times: once as received by the court of appeals on July 8, 2020; once as filed by the superior court on July 22, 2020; and once as filed by the court of appeals on July 24, 2020. (Doc. 18-2 at 5)
On April 16, 2021, Petitioner filed a “Petition for Review” in the Arizona Supreme Court and presented several issues for review: “lies, forgery's, constitutional violations, putting a person in prison for things that are not even illegal[,]” alleged lies and planted evidence by the detective in Petitioner's case, obstruction of justice, and “hundreds of due process violations.” (Id. at 132-59) On August 11, 2021, the Arizona Supreme Court denied Petitioner's petition for review without discussion. (Id. at 161) Petitioner filed a request for reconsideration on August 25, 2021. (Id. at 163-89) The Arizona Supreme Court dismissed Petitioner's motion for reconsideration on August 31, 2021, finding that Petitioner's motion for reconsideration was not permitted by an appellate court order as required by Ariz. R. Crim. P. 31.20(f). (Id. at 191)
Petitioner attached as exhibits the court of appeals' September 9, 2020, and October 28, 2020, orders denying Petitioner's direct appeal of his convictions, not the court of appeals' orders related to Petitioner's PCR proceedings, discussed infra. (Doc. 18-2 at 156-57)
On September 15, 2021, Petitioner filed a “Petition for Exceptional Circumstances” with regards to his motion for reconsideration in the Arizona Supreme Court. (Doc. 18-3 at 2-33) The Arizona Supreme Court construed Petitioner's filing as a second motion for reconsideration and denied Petitioner's motion on September 29, 2021. (Id. at 35)
D. First PCR Action
In late May 2019, Petitioner filed a pro se PCR notice in the superior court. (Id. at 37-39) In this first PCR notice, Petitioner checked boxes stating that he intended to raise claims that counsel provided ineffective assistance, that newly discovered material facts existed, that Petitioner's failure to timely file a PCR notice was not Petitioner's fault, that a significant change in the law would probably overturn Petitioner's convictions or sentences, and that facts existed to establish Petitioner's actual innocence by clear and convincing evidence. (Id. at 38-39) Petitioner also asserted that “newly discovered material” existed. (Id. at 39)
The PCR notice was signed by Petitioner and notarized on May 24, 2019 (Doc. 18-3 at 39), but the PCR notice was not filed by the clerk of the superior court until May 29, 2019 (id. at 37).
On June 14, 2019, the superior court dismissed Petitioner's first PCR notice. (Id. at 41-44) The superior court found that Petitioner's first PCR notice was required to be filed by June 19, 2014, causing Petitioner's first PCR notice to be untimely by nearly five years. (Id. at 42) The superior court further found that Petitioner did not factually support his Ariz. R. Crim. P. 32.1(f) claim that he was not at fault for the untimeliness of the first PCR notice. (Id.) The superior court determined that on the day of sentencing, Petitioner received and signed a “Notice of Rights of Review After Conviction and Procedure” form stating that Petitioner had 90 days after sentencing to file a PCR notice. (Id.) As for Petitioner's claim of ineffective assistance of counsel (“IAC”) under Ariz. R. Crim. P. 32.1(a), the superior court found that Petitioner's claim was waived and untimely. (Id.) Further, the superior court found that Petitioner's Ariz. R. Crim. P. 32.1(e) and (h) claims of newly discovered material facts lacked factual support. (Id. at 42-43) In addition, the superior court ruled that Petitioner's Ariz. R. Crim. P. 32.1(g) claim of a significant change in the law, as well, did not present a substantive claim or an explanation for why the untimeliness of such a claim should be excused. (Id. at 43-44) The superior court nevertheless ordered Rodrick Carter to provide Petitioner with his case file no later than June 28, 2019, and to file a notice of compliance after having done so. (Id. at 44) The record does not reflect that Petitioner filed a petition for review in the court of appeals of the superior court's dismissal of Petitioner's first PCR notice. (Doc. 18-1 at 6-7)
On June 18, 2019, Petitioner requested that a new judge be assigned to his “PCR Rule 32 proceedings” in the superior court. (Id. at 172-82) On July 9, 2019, the superior court denied Petitioner's request for a new judge, finding that Petitioner had not shown that the assigned judge was biased or prejudiced. (Id. at 184-85)
D. Second PCR Action
In June 2019, Petitioner filed a second PCR notice in the superior court and checked boxes that he intended to raise the same claims as in his first PCR notice. (Doc. 18-3 at 4656) Petitioner added a statement that Rodrick Carter never explained Petitioner's rights and did not file a Rule 32 notice or other appeal after Petitioner asked him to. (Id. at 48) Petitioner also moved for appointment of counsel (id. at 49-52) and requested a waiver of untimeliness for good cause, arguing that his trial counsel was at fault for Petitioner's untimely first PCR notice (id. at 53-56). In July 2019, Petitioner filed a PCR petition and checked boxes that he was raising claims of an unconstitutional identification introduced at trial; the introduction at trial of a statement obtained without a lawyer's presence when representation was constitutionally required; ineffective assistance of counsel; unconstitutional suppression of evidence by the state; unconstitutional use of perjured testimony by the state; an unlawfully induced guilty plea; the abridgment of any other constitutional or state legal right; the existence of newly discovered material; lack of jurisdiction in the trial court; the use at sentencing of a prior conviction that was unconstitutionally obtained; the failure of Petitioner's counsel to file a timely notice of appeal; and sentencing for crimes that Petitioner did not commit. (Doc. 18-4 at 2-180; Doc. 18-5 at 1-80)
On July 18, 2019, the superior court dismissed Petitioner's second Rule 32 proceeding. (Doc. 18-6 at 2-5) The superior court recognized that while a petitioner may file a second PCR notice raising IAC of first PCR counsel, Petitioner had represented himself during first PCR proceedings and therefore could not raise a claim of IAC of first PCR counsel. (Id. at 3) As for Petitioner's alleged lack of fault for the untimeliness of his PCR petition, the superior court found that Petitioner waived his right to direct appeal by pleading guilty; that Petitioner was informed of his responsibility to file a PCR notice within 90 days of sentencing; and that the court previously rejected Petitioner's argument under Ariz. R. Crim. P. 32.1(f) in Petitioner's first PCR proceedings. (Id.) As for Petitioner's Ariz. R. Crim. P. 32.1(a) claims that he received IAC and did not knowingly enter a plea agreement, the superior court found that Petitioner's guilty plea waived all non-jurisdictional defects unrelated to the voluntariness of the plea. (Id. at 3-4) The superior court found that Petitioner's claim of IAC was also precluded because it was raised in the first PCR proceedings. (Id.) Further, the superior court ruled that Petitioner could not rely on Martinez v. Ryan, 566 U.S. 1 (2012), as a basis for relief, because the exceptions in Martinez applied to federal habeas corpus actions. (Id. at 4) Finally, as to Petitioner's Ariz. R. Crim. P. 32.1(e) and (h) claims of newly discovered and material facts, the superior court determined that Petitioner did not provide any new, material facts that would establish by clear and convincing evidence that no reasonable factfinder would find Petitioner guilty. (Id.)
Petitioner moved for reconsideration of the superior court's dismissal of his second PCR proceedings. (Id. at 7-51) Thereafter, in September 2019, Petitioner moved to amend his PCR petition to attach a letter from the State Bar of Arizona regarding Petitioner's requests for Rodrick Carter to provide Petitioner's case file. (Id. at 53-57) On November 4, 2019, the superior court denied Petitioner's motion for reconsideration and request to amend to the extent that Petitioner's request to amend “[sought] review or reconsideration of the court's denial of” Petitioner's PCR petition. (Id. at 59)
Months later, Petitioner filed three appeals in the court of appeals; Petitioner filed appeals of the superior court's denial of his motion for reconsideration, denial of his motion to amend his second PCR notice, and denial of his request for sanctions against Rodrick Carter. (Doc. 18-1 at 209-86, 292-98, 305-15) On May 18, 2020, the court of appeals issued three orders dismissing Petitioner's appeals. (Id. at 288, 300, 317) The court of appeals' orders cited Ariz. Rev. Stat. § 13-4033 (2010) and found that the superior court's orders denying Petitioner's motions and dismissing Petitioner's Rule 33 PCR proceedings were not appealable. (Id.)
Petitioner's appeals were signed on April 28, 2020, but were stamped as received in the court of appeals on April 30, 2020; as filed in the superior court on May 4 or 14, 2020; and as filed in the court of appeals on May 15, 2020. (Doc. 18-1 at 209, 292, 304)
II. PETITIONER'S HABEAS CLAIMS
Petitioner raises thirteen grounds for relief in his May 26, 2022, Petition. (Doc. 1) In Ground 1, Petitioner argues that his arrest and detainment were unlawful and unconstitutional. (Id at 6) In Ground 2, Petitioner argues that his Miranda rights were unlawfully violated. (Id. at 7) In Ground 3, Petitioner argues that the grand jury indictment against him was unlawful and unconstitutional. (Id. at 8-13) In Ground 4, Petitioner argues that the sexual assault charges against him were unlawfully fabricated. (Id. at 14-18) In Ground 5, Petitioner argues that eight of the felony charges against him were unconstitutionally fabricated, including two counts of voyeurism, one count of stalking, two counts of computer tampering, one count of aggravated harassment, and one count of perjury. (Id. at 18-24) In Ground 6, Petitioner argues that three of the felony charges against him were unconstitutionally fabricated, including one count of kidnapping, one count of attempted child molestation, and one count of attempted sexual abuse. (Id. at 25-27) In Ground 7, Petitioner argues that the felony charge against him related to purchasing a gun from a private owner was unconstitutionally fabricated. (Id. at 28) In Ground 8, Petitioner argues that the molestation charge against him was unconstitutionally fabricated. (Id. at 29-30) In Ground 9, styled as a Brady violation, Petitioner argues that Detective Krause unlawfully and purposefully excluded and altered interviews to benefit the detective's case. (Id. at 31-34) In Ground 10, Petitioner argues that his plea agreement was unconstitutional. (Id. at 35-38) In Ground 11, Petitioner alleges that the court system was unconstitutional and “corrupt.” (Id. at 39-40) In Ground 12, Petitioner argues that trial counsel Rodrick Carter provided ineffective assistance. (Id. at 41-43) In Ground 13, Petitioner alleges that his imprisonment and probation are unconstitutional. (Id. at 44-46)
Brady v. Maryland, 373 U.S. 83 (1963).
In their Limited Answer, Respondents assert that the Petition was untimely filed under 28 U.S.C. § 2244(d)(1)(A) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (Doc. 18 at 10-13) Respondents also argue that every ground of the Petition is procedurally defaulted (id. at 13-21) and that Grounds 1, 3, 4, 5, 6, 7, 8, 10, and 11 are non-cognizable in these habeas proceedings. (Id. at 21-23)
In reply to Respondents' Limited Answer, Petitioner argues that Rodrick Carter's delay in returning Petitioner's file caused Petitioner to file late PCR proceedings. (Doc. 32 at 2-6, 11-12) Petitioner also argues that he is entitled to equitable tolling due to his prison's failure to address Petitioner's cataracts for a year and a half, “rendering the [P]etitioner blind and unable to read or write.” (Id. at 11-12) Petitioner further reiterates each of his claims as to the thirteen grounds of the Petition. (Id. at 16-76)
In December 2022, after Respondents' Limited Answer and before filing his reply, Petitioner filed a Motion to Amend, in which Petitioner seeks to add to the Petition a proposed Ground 14 claim of “due process violations, forgery by the government, Admitted falsely fabrication of prior felonies.” (Doc. 25 at 2) Petitioner avers that his proposed Ground 14 claim arises from Petitioner's review of exhibits filed in this Court by Respondents. (Id. at 1) Petitioner asserts that these Court filings show “evidence of constitutional due process violations by the Arizona government and evidence of felony's [sic] by someone in the Arizona government.” (Id.) Petitioner argues that Respondents submitted a forgery of his presentence report, a copy of the plea agreement with discrepancies, and “several documents that the Arizona government had wrote on admitting to the falsley fabercation [sic] of priors[.]” (Id. at 2) Petitioner expressly states that he did not present his proposed Ground 14 claim to the Arizona Court of Appeals or the Arizona Supreme Court because his proposed Ground 14 claim is newly discovered. (Id. at 3) Respondents did not file any response to Petitioner's Motion to Amend.
III. TIMELINESS
A threshold issue for the Court is whether these habeas proceedings are time-barred by the statute of limitations. The time bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2022).
A. AEDPA's One-Year Limitations Period Start Date
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas proceedings because he filed his Petition after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). For AEDPA statute of limitations purposes, this Report and Recommendation uses May 26, 2022, the date Petitioner signed and filed the Petition, as the applicable filing date. (Doc. 1)
Under AEDPA, there are four possible starting dates for the beginning of its one-year statute of limitations period:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). The latest of the applicable possible starting dates is the operative start date. Id.
Because the Petition's claims arise from a final judgment and sentence and the habeas record does not present circumstances for a later start date based on 28 U.S.C. § 2244(d)(1) subsections (B), (C), or (D), AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A). AEDPA's one-year statute of limitations period runs from when the judgment and sentence became “final by the conclusion of direct review or the expiration of the time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A).
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may seek review only by collaterally attacking his convictions through PCR proceedings under Arizona Rule of Criminal Procedure 32 (now Rule 33). See Ariz. R. Crim. P. 17.2(a)(5) (“the defendant's plea of guilty or no contest will waive the right to appellate court review of the proceedings on a direct appeal” and “the defendant may seek review only by filing a petition for post-conviction relief under Rule 32 and, if it is denied, a petition for review”); A.R.S. § 13-4033(B) (“In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.”).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
At the time of Petitioner's sentencing, Arizona Rule of Criminal Procedure 32.4(a)(2)(C) required that an of-right PCR notice be filed within 90 days after entry of judgment and sentence. When the Rule 32 (now Rule 33) of-right proceeding concludes or the time for filing such expires, a conviction becomes “final” for purposes of § 2244(d)(1)(A) of AEDPA. Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007); see also A.R.S. § 13-4033(B). When an Arizona petitioner's PCR proceeding is of-right, AEDPA's statute of limitations does not begin to run until the conclusion of review or the expiration of the time for seeking such review. Summers, 481 F.3d at 711, 716-17.
Petitioner was sentenced on March 21, 2014. (Doc. 18-1 at 48-49) Following sentencing, as Petitioner acknowledged in writing, Petitioner had 90 days, until June 19, 2014, to file a PCR notice in the superior court. Petitioner did not file a PCR notice within 90 days of sentencing. Thus, Petitioner's convictions and sentences became final on June 19, 2014, when the time to file a Rule 32 (now Rule 33) notice expired. Summers, 481 F.3d at 711, 716-17. AEDPA's one-year statute of limitations therefore commenced to run on June 20, 2014, and the period for Petitioner to file a timely habeas petition expired on June 22, 2015. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998...”). Petitioner did not file these habeas proceedings until May 26, 2022, nearly seven years after AEDPA's statute of limitations expired. (Doc. 1) Accordingly, these habeas proceedings were untimely filed unless statutory tolling, equitable tolling, and/or the actual innocence gateway apply to render these proceedings timely filed.
Because June 20, 2015, fell on a Saturday, Petitioner had until June 22, 2015, to file his habeas petition. See Fed.R.Civ.P. 6(a)(1)(C).
B. Statutory Tolling
AEDPA expressly provides for statutory tolling of the limitations period when a “properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). This includes compliance with filing deadlines. A state post-conviction relief petition not filed within the state's required time limit is not “properly filed,” and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post-conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414). Once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Because an untimely PCR notice does not statutorily toll AEDPA's limitations period, Pace, 544 U.S. at 414, Petitioner's untimely first and second PCR notices did not toll the limitations period. The superior court correctly determined that Petitioner's first PCR notice in May 2019 was untimely by approximately five years. (Doc. 18-3 at 42) Petitioner did not file his notice within 90 days of sentencing, see Ariz. R. Crim. P. 33.1, 33.4(b)(3)(A), and did not provide sufficient reasons excusing his untimely claims. See Ariz. R. Crim. P. 33.2(b)(1). The superior court also found that Petitioner's second PCR notice and associated PCR petition were untimely. (Doc. 18-6 at 3) Both of Petitioner's PCR notices were filed after AEDPA's limitations period expired in June 2015. (Doc. 18-3 at 32-35, 46-56) Petitioner's PCR notices, filed after the limitations period had expired, therefore did not restart the limitations period. See Jiminez, 276 F.3d at 482; Ferguson, 321 F.3d at 823.
Thus, there is no applicable statutory tolling of AEDPA's limitation period. Accordingly, these habeas proceedings were untimely filed unless equitable tolling and/or the actual innocence gateway apply to render these proceedings timely filed.
C. Equitable Tolling
The U.S. Supreme Court has held “that § 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. Id. at 645-46. Petitioner bears the burden of establishing that equitable tolling is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.”).
The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA's limitations period “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner must show “(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way” to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the first prong, Petitioner “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith, 953 F.3d at 598-99 (expressly rejecting the “stop-clock” approach to equitable tolling). The second prong is met “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Id. at 600.
“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and quotations omitted). Whether to apply the doctrine of equitable tolling “‘is highly fact-dependent,' and [the petitioner] ‘bears the burden of showing that equitable tolling is appropriate.'” EspinozaMatthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable in most cases,” and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted).
In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[E]quitable tolling is available only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of the prisoner's untimeliness.”). A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where “it would have technically been possible for a prisoner to file a petition,” so long as the prisoner “would have likely been unable to do so.”).
A petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry, 448 F.3d at 1154 (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”); see also Ballesteros v. Schriro, 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). A prisoner's “proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
In Petitioner's reply in support of the Petition, Petitioner argues that he is entitled to equitable tolling due to Rodrick Carter's delay in providing Petitioner his case file and eventual failure to provide Petitioner's case file in its entirety; due to “government interference” insofar as Petitioner's prison delayed Petitioner's treatment for cataracts, rendering Petitioner blind and unable to read or write; and due to Petitioner's medical impairment of blindness. (Doc. 32 at 2-6, 9-12) Petitioner discusses his attempts to obtain his case file from Rodrick Carter, including sending letters to Rodrick Carter in 2017 and 2018, filing motions to compel in state court in 2018 and 2019, and filing complaints with the State Bar of Arizona. (Id. at 3-6) Petitioner asserts that his attempts to obtain his case file show due diligence on Petitioner's part. (Id. at 6)
Petitioner makes a similar argument regarding Rodrick Carter's delay in Ground 11 of the May 26, 2022, Petition, although Petitioner does not frame his Ground 11 argument in the Petition as a circumstance warranting equitable tolling. (Doc. 1 at 39)
Petitioner states that he believed Rodrick Carter worked for the Maricopa County Office of the Public Defender and subsequently asked the Office of the Public Defender for his file. (Doc. 32 at 3-4) In November 2017, the Office of the Public Defender informed Petitioner that Rodrick Carter did not work for their office and stated that Petitioner's file request would be forwarded to Rodrick Carter. (Doc. 32-1 at 3)
Despite Petitioner's arguments, Petitioner does not show that he has been pursuing his rights diligently. Although Petitioner states that he began sending letters to Rodrick Carter in 2014 with no response (Doc. 32 at 3), the record does not reflect that Petitioner requested anything related to his file until 2017. (See Doc. 18-1 at 56-59, 61; Doc. 32-1 at 2-22) Notably, on the day of sentencing, Petitioner received and signed a “Notice of Rights of Review After Conviction and Procedure” form which set forth the procedure and time frames for Petitioner to file a PCR notice. (Doc. 18-1 at 54) The form stated that Petitioner had to file a PCR notice within 90 days after sentencing if Petitioner sought review of his convictions and sentences. (Id.) The form informed Petitioner that he could contact his lawyer, could procure a PCR notice form from the superior court to fill out, and needed to fill out an affidavit of indigency if Petitioner could not afford a lawyer. (Id.) This form clearly informed Petitioner that it was his responsibility to file a timely PCR notice within 90 days of sentencing. (Id.) Despite Petitioner acknowledging his receipt of this form, Petitioner did not file his first PCR notice until May 24, 2019, over five years later. (Doc. 18-3 at 32-35) Further, Petitioner did not file his federal habeas Petition until two years after his second PCR proceeding concluded in May 2020. (See Doc. 18-1 at 288, 300, 317) Petitioner submitted multiple other filings in the state courts starting in 2017, suggesting that no barriers to filing existed prior to the May 2019 filing of Petitioner's first PCR notice. (See, e.g., id. at 56-59, 67-91, 95-103, 107-54, 161-67) Petitioner's delay in seeking his case file, in filing his first PCR notice, and in filing these proceedings after Petitioner's second PCR proceedings demonstrate that Petitioner's actions lack the due diligence required for equitable tolling.
As for Petitioner's medical impairments, Petitioner states that he was blind until August 2015. (Doc. 32 at 11-12; see also Doc. 18-1 at 245) However, blindness does not automatically warrant equitable tolling. See Elopre v. Superior Court of California, 2016 WL 5402939, at *4-5 (C.D. Cal. Jan. 25, 2016) (collecting cases); Smith v. Beightler, Fed.Appx. 579, 580-81 (6th Cir. 2002) (no equitable tolling where blind petitioner did not show that he did not know the filing requirement or that he was diligent). As discussed above, Petitioner was aware of the filing requirements for a timely PCR notice. Moreover, even if Petitioner's alleged inability to read or write had tolled AEDPA's statute of limitations, Petitioner has not otherwise shown diligence. Petitioner did not file a PCR notice in state court until May 2019, nearly four years after the conclusion of the period during which Petitioner alleges complete blindness. (See Doc. 18-3 at 32-35) Petitioner's medical impairments thus cannot establish an extraordinary circumstance warranting equitable tolling.
Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from filing a timely petition for habeas corpus. Accordingly, equitable tolling is not appropriate on this record and does not apply here to render these proceedings timely filed.
D. Actual Innocence
In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the “actual innocence gateway” to federal habeas review that applies to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995), and House v. Bell, 547 U.S. 518 (2006), extends to petitions that are time-barred under AEDPA. See Schlup, 513 U.S. at 329 (petitioner must make a credible showing of “actual innocence” by “persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”).
To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
Petitioner references the standard for actual innocence in his reply in support of the Petition, but Petitioner does not connect this standard to the record in his own case. (Doc. 32 at 13-16) Although Petitioner does not expressly argue that actual innocence excuses his untimely filing of these proceedings, Petitioner argues in several grounds of the Petition that the events underlying his convictions did not happen or did not constitute crimes. (See Doc. 1 at 8-13, 14-17, 18-24, 25-27, 28, 29-30, 44-46; Doc. 32 at 19-53, 67-76) Petitioner also argues that he was convicted with false and insufficient evidence. (Id.) Yet, “[e]vidence 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 v. Taylor, 763 F.3d 1242, 1251 (9th Cir. 2014).
To satisfy the actual innocence exception to an untimely filed petition, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. at 324, and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). Petitioner fails to meet this burden because he does not present “new reliable evidence[,]” Schlup, 513 U.S. at 324, that would likely prevent a jury from convicting him. See McQuiggin, 569 U.S. at 399.
To his Petition, Petitioner attached a September 21, 2021, cover sheet from the Arizona Court of Appeals forwarding Petitioner's “Petition for Exceptional Circumstances” to the Arizona Supreme Court (Doc. 1 at 49); the Arizona Court of Appeals' September 9, 2020, order dismissing Petitioner's appeal of his convictions (id. at 50); and the Arizona Supreme Court's August 31, 2021, order dismissing Petitioner's motion for reconsideration (id. at 51). Plainly, these legal documents are not new reliable evidence that would likely prevent a jury from convicting Petitioner.
To his reply, Petitioner attached the last page of the March 2014 presentence report in case CR2012-156586-002 before it was signed by the superior court judge (Doc. 32 at 80); letters written in 2017 and 2018 to Rodrick Carter, the Maricopa County Public Defender's Office, and the Attorney General, requesting Petitioner's case file (Doc. 32-1 at 2-15); letters written in 2018 from Rodrick Carter (id. at 17-22); a screenshot of storage capacity on a CD drive, dated August 2020 (id. at 24); a blank page from the form provided for a habeas petition (id. at 26); a City of Peoria incident report of a burglary at Petitioner's residence in 2010 (id. at 28); a list of the counts against Petitioner (id. at 30); information written in September 2010 about text messaging on Cricket Wireless, updated in 2015 and printed in April 2019 (id. at 32); statements from Petitioner's daughters, dated April 2019 and November 2020 (id. at 34-35); a “HTE CAD Narrative” for incident number 2010-93100373 (id. at 38); Petitioner's criminal record from Illinois (id. at 40-42); 2011 City of Peoria police records for the events leading to the convictions underlying the Petition (id. at 45-53, 56-62); 2010 texts between Petitioner and a victim in CR2012-156586-002 (id. at 54-55); a 2010 cover letter of a fax from Recovery Innovations of Arizona to the Buckeye Police Department, regarding a victim in case CR2012-156586-002 (id. at 63); 2011 emails between Petitioner and a victim in case CR2012-156586-002 (id. at 64-69); a 2011 letter from attorney Michael Yucevicius to the Maricopa County Attorney's Office, prior to charges being filed against Petitioner (id. at 70-71); a search warrant affidavit and corresponding photographs (id. at 72-84); and undated superior court transcript excerpts regarding the events underlying Petitioner's convictions (id. at 86-91).
Most of Petitioner's attachments existed at the time of Petitioner's March 2014 sentencing and are not new evidence. The April 2019 and November 2020 statements of Petitioner's daughters discuss each daughter's perspective that Petitioner was a good father, that the detective investigating Petitioner asked Petitioner's daughters to testify against Petitioner and sought negative information about Petitioner from Petitioner's daughters, that one daughter attempted to contact Rodrick Carter regarding testifying as a potential witness, and that one daughter had conversations with a victim on Facebook regarding the victim's “legitimate relationship” with Petitioner. (Id. at 34-35) The statements of Petitioner's daughters do not discuss the events underlying the convictions in case CR2012-156586-002. Petitioner does not explain how the statements of Petitioner's daughters are “new, reliable evidence” that would likely prevent a jury from convicting Petitioner, nor is such apparent from review of the statements. Schlup, 513 U.S. at 324. Even if the statements of Petitioner's daughters undercut the testimony of the victims and witnesses in case CR2012-156586, such contradictory evidence would not be sufficient to establish a meritorious claim of actual innocence. See Jones, 763 F.3d at 1251. Further, in Petitioner's 2017 and 2018 letters with Rodrick Carter, the Maricopa County Public Defender's Office, and the Attorney General, Petitioner asserted that he never plead guilty and discussed his difficulties in obtaining his case file from Rodrick Carter. (Doc. 32-1 at 2-22) Although Petitioner asserted in his letters that the police reports contained incorrect and contradictory information (see id. at 9), Petitioner does not present any evidence, much less new evidence, to affirmatively establish that the police reports were incorrect. Jones, 763 F.3d at 1251.
Petitioner does not argue, nor is it apparent upon review, how Petitioner's remaining attachments to the Petition and reply show that is it “more likely than not that no reasonable juror would have convicted him” of the alleged offenses underlying the Petition. McQuiggin, 569 U.S. at 399. Petitioner merely asserts that certain events did not occur or did not constitute a crime, but evidence that only “casts doubt on the petitioner's guilt” is not sufficient to establish actual innocence. Id. The screenshot of storage capacity on a CD drive, the blank habeas form page, the police report related to a 2010 burglary at Petitioner's residence, the 2010 “HTE CAD Narrative,” Petitioner's list of charges in case CR2012-156586, Petitioner's Illinois criminal record, the 2010 cover letter of a fax to Recovery Innovations, and information regarding text messages on Cricket Wireless do not contain any reference to the events underlying the convictions in case CR2012-156586-002. (Doc. 32-1 at 24, 26, 28, 30-32, 38, 40-42, 63) The letter from attorney Michael Yucevicius to the Maricopa County Attorney's Office, prior to charges being filed against Petitioner, asserts that exculpatory evidence exists, but Petitioner does not present evidence to establish the truth of attorney Michael Yucevicius' assertions. (Id. at 70-71) Specifically, Petitioner does not show that a victim in case CR2012-156586-002 falsely accused Petitioner of crimes or that the elements of sexual conduct with a minor were not met due to the age of one of the victims. Petitioner's emails with a victim in case CR2012-156586-002 do not state that the victim falsely accused Petitioner of crimes or that the events underlying the convictions in case CR2012-156586-002 did not happen. (Id. at 64-69) As for the police reports leading to the charges and convictions in case CR2012-156586-002, the search warrant affidavit and corresponding photographs, and undated superior court transcript excerpts, each attachment tends to support the events underlying Petitioner's convictions. (Id. at 45-62, 72-84, 86-91) Petitioner asserts that the information in each of these attachments was fabricated or incorrect, but Petitioner does not present any evidence, let alone any new evidence, to support his assertions. (See Doc. 1 at 8-30, 44-46; Doc. 32 at 19-57, 67-70)
Petitioner tangentially argues that the passage of Arizona House Bill 2283 (“HB2283”) in 2018 required the state to prove sexual intent beyond a reasonable doubt and that HB2283 retroactively applies to his case pursuant to Montgomery v. Louisiana, 577 U.S. 190 (2016). (Doc. 32 at 76-77) At the outset, Montgomery allows new substantive rules of federal constitutional law to be applied retroactively, not state rules. 577 U.S. at 200. Moreover, in amending A.R.S. §§ 13-1401 and 13-1407, HB2283 merely excluded certain acts from the definition of sexual contact and removed a provision stating that it was a defendant's burden to prove the affirmative defense of no sexual interest by a preponderance of the evidence. H.B. 2283, 53rd Leg., 2nd Reg. Sess. (Ariz. 2018). Petitioner has not shown how the passage of HB2283 and HB2283's amendment of A.R.S. §§ 13-1401 and 13-1407 supports his actual innocence, particularly given Petitioner's guilty pleas underlying the convictions at issue.
As for the 2010 texts and 2011 emails between Petitioner and a victim, Petitioner does not show that any of these attachments “affirmatively prove innocence[.]” Jones, 763 F.3d at 1251. To the extent that Petitioner alleges that text messages and emails with the victim were falsified, thus supporting his actual innocence, Petitioner does not establish such. Petitioner argues that email messages were fabricated due to discrepancies in dates on the emails in the record. (Doc. 32 at 43-46) However, Petitioner does not present evidence to establish that emails between Petitioner and the victim were fabricated. (See Doc. 32-1 at 64-69) Petitioner also argues that texts sent from his phone on November 15, 2010, were fabricated because Cricket Wireless only allows messages up to 160 characters, because the text messages in the record were centered on the page, and because no messages were sent from Petitioner's phone between 10:12 a.m. and 2:41 p.m. on November 15, 2010. (Doc. 32 at 42-43) However, the record appears to reflect that on November 15, 2010, between 8:04 a.m. and 4:40 pm, numerous messages originated from the phone number listed on the challenged text messages. (Doc. 18-5 at 34, 40-41) Even if the challenged text messages exceed the character limit for text messages on Cricket Wireless or were improperly self-centered, Petitioner does not establish that the allegedly falsified emails or texts would have prevented any reasonable juror from convicting him. Evidence that may merely cast doubt on Petitioner's convictions is insufficient to establish actual innocence. Jones, 763 F.3d at 1251.
None of Petitioner's materials constitute “new, reliable evidence” that more likely than not would have prevented a jury from convicting Petitioner. Schlup, 513 U.S. at 324. Petitioner has not met his burden to establish actual innocence that would excuse Petitioner's failure to timely file a habeas action.
E. These Proceedings Are Untimely Under AEDPA
Given the above, the May 26, 2022, filing of this action was untimely, and neither statutory tolling, equitable tolling, nor the actual innocence gateway renders this action timely filed. Therefore, these untimely proceedings should be dismissed with prejudice and terminated.
IV. MOTION TO AMEND (Doc. 25)
On December 20, 2022, Petitioner filed a Motion to Amend his Petition, in which Petitioner seeks to add to the Petition a proposed Ground 14 alleging “due process violations, forgery by the government, Admitted falsely fabrication of prior felonies.” (Doc. 25 at 2) Petitioner avers that his proposed Ground 14 arises from Petitioner's review of exhibits filed in this Court by Respondents. (Id. at 1) Petitioner asserts that these Court filings show “evidence of constitutional due process violations by the Arizona government and evidence of felony's [sic] by someone in the Arizona government.” (Id.) Petitioner argues that Respondents submitted a forgery of his presentence report, a copy of the plea agreement with discrepancies, and “several documents that the Arizona government had wrote on admitting to the falsley fabercation [sic] of priors[.]” (Id. at 2) Petitioner expressly states that he did not present his proposed Ground 14 to the Arizona Court of Appeals or the Arizona Supreme Court because his proposed Ground 14 is newly discovered. (Id. at 3)
Pursuant to Fed.R.Civ.P. 15(a)(1), a petitioner may amend his pleadings once as a matter of course within twenty-one days of serving the pleading or within twenty-one days of a responsive pleading or motion. Where the deadline to amend as a matter of course has expired, as here, a petitioner may only amend his pleading with the court's leave or the opposing party's written consent. Fed.R.Civ.P. 15(a)(2). In deciding whether or not to grant leave to amend, the court may consider “bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings.” Bonin v. Calderon, 59 F.3d 815, 844-45 (9th Cir.1995) (applying Rule 15(a) in a habeas case). Leave to amend “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a)(2), but futility alone is a sufficient basis to deny amendment in the context of a habeas matter. Caswell v. Calderon, 363 F.3d 832, 837 (9th Cir. 2004).
Here, Petitioner has not amended or previously sought to amend his Petition, but Petitioner has unduly delayed in moving to amend and his proposed Ground 14 is untimely in any event, making the proposed amendment futile. Petitioner first asserts that his copy of his presentence report is missing a signature by a judge, whereas the exhibit submitted by Respondents is signed and dated on the date of his sentencing but filed by the clerk of the superior court three days after his sentencing. (Doc. 25 at 2) Petitioner previously raised this argument in his July 8, 2019, PCR petition. (Doc. 18-4 at 149, 157) Moreover, the presentence report was filed in the superior court on March 24, 2014. (Doc. 18-1 at 30) With the exercise of due diligence, Petitioner could have discovered this portion of his proposed Ground 14 within weeks if not days after March 24, 2014. At the latest, Petitioner had discovered this claim by the July 8, 2019, filing of his PCR petition in his second PCR proceedings.
Petitioner next asserts that Respondents' submitted copy of his plea agreement displays problems such as initials in the wrong places and a signature that differs from the signature on Petitioner's notice of rights. (Doc. 25 at 2) The plea agreement was filed in the superior court on February 21, 2014. (Doc. 18-1 at 24) With the exercise of due diligence, Petitioner could have discovered this portion of his proposed Ground 14 within weeks if not days of February 21, 2014. Further, in state court, Petitioner argued as early as October 26, 2018, that the initials on the plea agreement were not his, suggesting that Petitioner had a copy of the signed, initialed plea agreement at that time. (Doc. 18-1 at 69) Petitioner therefore discovered this portion of his proposed Ground 14 before October 26, 2018.
Finally, Petitioner states that Respondents provided documents in which the Arizona government admitted to fabricating prior convictions. (Doc. 25 at 2) Specifically, Petitioner states that the government changed a charge from an Illinois misdemeanor to an Arizona felony; wrote “CM=criminal misdemeanor, CF=criminal felony” on Petitioner's criminal record from Illinois; and wrote on Petitioner's Illinois record that the detective incorrectly presented an old misdemeanor as a felony to the prosecutor. (Id. at 2-3) Copies of the challenged documents (see id. at 15-18) were attached to Petitioner's October 26, 2018, letter to the Maricopa County Superior Court with the comments Petitioner alleges were written by the government. (Doc. 18-1 at 80, 88) The same documents appear multiple times in the record, some without and some with the comments Petitioner challenges. (See Doc. 18-1 at 88, 133; Doc. 18-4 at 41, 44) Notably, the documents without the challenged comments were attached to Petitioner's July 8, 2019, PCR petition. (Doc. 18-4 at 41, 44) Therefore, Petitioner was aware of the documents with the comments as early as October 26, 2018, and Petitioner had access to the same documents without the comments by July 8, 2019, the filing date of Petitioner's PCR petition in his second PCR proceedings.
Petitioner represents that the challenged documents are in Exhibit Q of Respondents' Limited Answer, but Exhibit Q includes only a one-page docket record from the Arizona Court of Appeals. (Doc. 18-1 at 159)
In sum, although Petitioner argues that he did not discover the factual basis for his proposed Ground 14 until Respondents filed exhibits in this Court, Petitioner could have discovered and did discover the factual basis for his proposed Ground 14 well prior to the May 26, 2022, filing of these habeas proceedings. Where “the facts and the theory have been known to the party seeking amendment since the inception of the cause of action[,]” amendment is disfavored. Acri v. International Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986). Petitioner does not provide any further explanation as to why he did not raise his proposed Ground 14 prior to filing his Motion to Amend. Petitioner therefore unduly delayed in raising his proposed Ground 14.
Respondents would suffer some prejudice if Petitioner's Motion to Amend to add proposed Ground 14 were granted given that Petitioner's Motion to Amend followed Respondents' filing of the Limited Answer, including the pertinent record to Petitioner's thirteen Petition grounds. Given that the record establishes that Petitioner knew about the bases of his proposed Ground 14 before the filing of the Petition, bad faith on the part of Petitioner is a reasonable inference. Nevertheless, the Court need not find bad faith for denying Petitioner's Motion to Amend to add proposed Ground 14.
Importantly, Petitioner's proposed Ground 14 is untimely, making Petitioner's proposed amendment to the Petition futile. The statute of limitations barring Petitioner's Grounds 1 through 13 claims pursuant to 28 U.S.C. § 2244(d)(1)(A) also applies to Petitioner's proposed Ground 14. Although Petitioner asserts that his proposed Ground 14 is newly discovered, each of Petitioner's challenged documents existed before the date on which the judgment against Petitioner became final by the conclusion of direct review or the expiration of the time for seeking such review. Petitioner's presentence report was filed in the superior court on March 24, 2014 (Doc. 18-1 at 30); Petitioner's plea agreement was filed in the superior court on February 21, 2014 (id. at 24); and the records of Petitioner's criminal history were filed in case CR2012-156586-002 or were compiled in 2011. (See Doc. 25 at 15-18) Each of these documents existed prior to June 19, 2014, when the time for Petitioner to file a Rule 32 (now Rule 33) notice expired as discussed in Section III(A), supra. Petitioner's proposed Ground 14 claim therefore is not newly discovered. Pursuant to 28 U.S.C. § 2244(d)(1)(A), AEDPA's statute of limitations period regarding Petitioner's proposed Ground 14 expired on June 22, 2015, as discussed in Section III(A), supra. Petitioner's proposed Ground 14 claim, filed December 20, 2022, is therefore untimely by seven and a half years.
Even if Petitioner's proposed Ground 14 claim was newly discovered, Petitioner's proposed Ground 14 would be untimely pursuant to 28 U.S.C. § 2244(d)(1)(D). Pursuant to 28 U.S.C. § 2244(d)(1)(D), the start date of AEDPA's limitations period may begin on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”
As discussed above, with respect to Petitioner's argument that his presentence report lacked a judicial signature, Petitioner could have discovered this portion of his proposed Ground 14 on March 24, 2014 with the exercise of due diligence. (Doc. 18-1 at 30) AEDPA's one-year limitations period would have commenced on March 25, 2014, and expired on March 25, 2015. Petitioner did not file his habeas Petition until May 26, 2022, over seven years later. With respect to Petitioner's argument that his plea agreement contains discrepancies and that the Arizona government fabricated his prior convictions, it appears Petitioner discovered this portion of his proposed Ground 14 as early as October 26, 2018. (Doc. 18-1 at 69, 80, 88) AEDPA's one-year limitations period would have commenced on October 27, 2018, and expired on October 27, 2019. Petitioner did not file his habeas Petition until nearly three years later. Accordingly, a later start date pursuant to 28 U.S.C. § 2244(d)(1)(D) would not cause the May 26, 2022, filing of the Petition to be timely. Moreover, Petitioner's proposed Ground 14 is not eligible for statutory tolling of AEDPA's limitations period. As discussed and determined in Section III(B) supra, Petitioner's untimely PCR notices could not and did not toll AEDPA's statute of limitations period. Pace, 544 U.S. at 414.
Accordingly, Petitioner's Motion to Amend the Petition to add a proposed Ground 14 is futile insofar as Petitioner's proposed Ground 14 would be barred by AEDPA's expired statute of limitations if his Motion to Amend were to be granted. Because Petitioner unduly delayed in asserting his proposed Ground 14 and because the proposed amendment sought by Petitioner would be futile, it is recommended that Petitioner's Motion to Amend the Petition to add proposed Ground 14 be denied. See McKettrick v. Yates, 627 F.Supp.2d 1144, 1152-52 (C.D. Cal. 2008) (denying habeas motion to amend due to undue delay and untimeliness pursuant to AEDPA); Armstrong v. Ryan, 2017 WL 3970327, at *3 (D. Ariz. Sept. 8, 2017) (denying habeas motion to amend due to futility and untimeliness under AEDPA).
Proposed Ground 14 also appears to be meritless and subject to other defenses, but the Court need not reach these issues in ruling on the Motion to Amend given Petitioner's undue delay and the clear untimeliness of the proposed ground.
V. CONCLUSION
For the reasons set forth above, the May 26, 2022, filing of the Petition was untimely. Therefore, it is recommended that the Petition be dismissed with prejudice and that this matter be terminated. Because of the untimeliness of the Petition, Respondents' other arguments of procedural default and non-cognizability are not addressed herein. For the reasons set forth above, it is further recommended that Petitioner's Motion to Amend the Petition to add proposed Ground 14 be denied.
Assuming the recommendations herein are followed in the District Judge's judgment, the undersigned recommends that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE RECOMMENDED that Petitioner Dennis Victor Tourville's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) be dismissed with prejudice and that this matter be terminated.
IT IS FURTHER RECOMMENDED that Petitioner's Motion to Amend (Doc. 25) be denied.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.