Twiggs v. Ryan

Full title: Donnie Romone Twiggs, Petitioner, v. Charles Ryan, et al., Respondents.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Jan 29, 2019

CV 18-00005-PHX-NVW (MHB) (D. Ariz. Jan. 29, 2019)

Opinion

CV 18-00005-PHX-NVW (MHB)

01-29-2019

Donnie Romone Twiggs, Petitioner, v. Charles Ryan, et al., Respondents.

Michelle H. Bums United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT COURT:

Petitioner Donnie Romone Twiggs, who is confined in the Arizona State Prison Complex, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5). Respondents filed a Limited Answer (Doc. 23), and Petitioner filed a Reply (Doc. 24).¹

1 Petitioner filed another one-page document on January 4, 2019 (Doc. 31). Although the Clerk of Court has labeled this filing as a "Reply," the document is barely legible. To the extent the document can be read, it fails to make any sensible argument or claim for relief. --------

BACKGROUND

Petitioner was convicted in Maricopa County Superior Court, case #CR2012-009266, of three counts of possession or use of narcotic drugs and two counts of possession of drug paraphernalia, and was sentenced to a 10-year term of imprisonment.

The Arizona Court of Appeals summarized the facts and evidence, as follows:

¶ 2 At about midnight on September 17, 2011, Twiggs fled from the police when they attempted to stop him for not having a fixed light on his bicycle. After stopping Twiggs, one of the officers saw Twiggs throw something. The police searched the route Twiggs had fled and discovered two baggies of crack cocaine and a bottle of morphine pills. Subsequently, a grand jury indicted Twiggs on one count of possession of crack cocaine, one count of possession of morphine, and one count of possession of drug paraphernalia, specifically "bag(s) and/or pill bottle" ("2011 case").

¶ 3 During trial, Twiggs moved to preclude admission of the larger baggie of crack cocaine, arguing that although the police had field-tested what was in the bag they had failed to submit it to a laboratory for confirmation of the results. The superior court precluded testimony on the nature of the substance in the larger baggie.

¶ 4 Despite the prosecutor's attempts to limit the testimony from an officer who had seized the larger baggie but had not conducted the field testing, the officer repeatedly referred to the contents as crack cocaine. As a result, over the prosecutor's objection, the superior court granted Twiggs' request for a mistrial. The superior court noted, however, that "the record should be abundantly clear that there was nothing that was done wrong by the State, and I don't think there was any malus [sic] from the officer." At that time, the prosecutor stated that in light of defense counsel's arguments, which he expected would be renewed at the next trial, he was going to have the baggie tested, and might file additional charges.

¶ 5 The prosecutor subsequently obtained a new indictment against Twiggs ("2012 case"). The grand jury indicted Twiggs for a second count of possession of crack cocaine and for a second count of possession of drug paraphernalia, along with the original count of possession of morphine, for a total of five counts, instead of three. On the State's motion, the court then dismissed the 2011 case without prejudice. The prosecutor also filed an additional allegation of aggravating circumstances other than prior convictions, that is, "indicia of sale."

State v. Twiggs, 2014 WL 6778881 (Ariz. Ct. App. December 2, 2014).

The jury subsequently found Petitioner guilty on all charges. The court held a trial regarding Petitioner's prior convictions on March 22, 2013, and Petitioner was sentenced on April 16, 2013. (Exhs. H, I.)

Petitioner timely appealed his convictions and sentences arguing the following issues: (1) "Did the trial court err when it failed to dismiss the indictment for prosecutorial misconduct?" and (2) "Was Mr. Twiggs' constitutional right to have every element of his offense determined by a jury beyond a reasonable doubt violated?" (Exh. J.) After the State responded and Petitioner replied, the Arizona Court of Appeals issued a memorandum decision affirming Petitioner's convictions and sentences on December 2, 2014. (Exhs. K, L, M.)

The Arizona Supreme Court denied Petitioner's petition for review on May 6, 2015, (Exhs. N, O), and the Arizona Court of Appeals issued its Mandate on June 9, 2015 (Exh. P).

Thereafter, on July 14, 2015, Petitioner filed a document entitled "Writ of Habeas Corpus Rule 32.3," which the court construed as the initiation of Rule 32 post-conviction reliefproceedings and appointed counsel. (Exhs. Q, R.) Counsel filed a Notice of Completion of Review stating that he has completed review of the case and was unable to find any claims to raise in post-conviction relief proceedings. Counsel requested an extension of time for Petitioner to file a pro se PCR petition. (Exh. S.)

On March 30, 2016, the court dismissed the Rule 32 proceeding finding that the deadline for filing a PCR petition had expired, and Petitioner had failed to file a petition or request any additional extensions of time. (Exh. U.) Other than a document entitled "Dismissal Calendar (Arbitration) Rule 76(d)," Petitioner did not file anything further in this matter. (Exh. V.)

In his Amended Petition, Petitioner raises four grounds for relief. In Ground One, Petitioner claims his Fourth Amendment rights were violated during the November 17, 2011 traffic stop when he was wrongfully charged with possession of drugs and paraphernalia that were found on the ground. In Ground Two, Petitioner alleges his Fifth Amendment rights were violated because although officers stated they impounded a bicycle and flashlight, there was no proof of this. In Ground Three, Petitioner claims his trial counsel was ineffective for failing to move for dismissal of the charges based on the lack of DNA or fingerprints. In Ground Four, Petitioner alleges his Eighth and Fourteenth Amendment rights were violated when Petitioner's counsel did not talk about Petitioner suffering a broken patella on the day he was arrested. \\\ \\\ \\\

DISCUSSION

In their Answer, Respondents contend that Petitioner's amended habeas petition is untimely and must be dismissed.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(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.

"[T]he period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition." Bowen v. Roe, 188 F.3d 1157, 1158-59 (9^th Cir. 1999). Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending Petitioner not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9^th Cir. 2002). A state petition that is not filed, however, within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414.

A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9^th Cir. 2004). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition is not filed until later. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9^th Cir. 2004). An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9^th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See Biggs, 339 F.3d at 1048; see also King v. Roe, 340 F.3d 821 (9^th Cir. 2003) (The petitioner was "not entitled to tolling during the interval between the completion of one round of state collateral review and the commencement of a second round of review."). Moreover, filing a new petition for post-conviction relief does not reinitiate a limitations period that ended before the new petition was filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9^th Cir. 2003).

The statute of limitations under AEDPA is subject to equitable tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for equitable tolling to apply, a petitioner must show "'(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way'" and prevented him from filing a timely petition. Id. at 648-49 (quoting Pace, 544 U.S. at 418).

The Court finds that Petitioner's amended habeas petition is untimely. After trial and sentencing, Petitioner appealed his convictions and sentences to the Arizona Court of Appeals. The Court of Appeals affirmed Petitioner's convictions and sentences on December 2, 2014. And, the Arizona Supreme Court denied Petitioner's petition for review on May 6, 2015. Petitioner's convictions became final 90 days later - on August 4, 2015 - when the time expired for filing a petition for writ of certiorari in the United States Supreme Court. See 28 U.S.C. § 2244(d)(1)(A) (providing AEDPA statute of limitations begins "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"); Porter v. Ollison, 620 F.3d 952, 958-59 (9th Cir. 2010) ("When, on direct appeal, review is sought in the state's highest court but no petition for certiorari to the United States Supreme Court is filed, direct review is considered to be final when the certiorari petition would have been due, which is 90 days after the decision of the state's highest court.").

Petitioner, however, initiated post-conviction relief proceedings in July 2015. On March 30, 2016, the court dismissed the Rule 32 proceeding finding that the deadline for filing a PCR petition had expired, and Petitioner failed to file a petition or request any additional extensions of time. Petitioner did not file anything further in this proceeding. Thus, the statute of limitations began running the following day and expired one year later - on March 31, 2017. Petitioner did not initiate his habeas proceedings until December 26, 2017. Accordingly, absent equitable tolling, his habeas petition is almost nine months too late.

The Ninth Circuit recognizes that the AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9^th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9^th Cir. 1998). Tolling is appropriate when "'extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." Id.; see Miranda v. Castro, 292 F.3d 1063, 1066 (9^th Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9^th Cir. 1999). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418. Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9^th Cir. 2007).

As an excuse for his untimeliness, Petitioner continues to argue the claims set forth in his petition stating that "crack cocaine and morphine pill(s), Petitioner DNA or finger print(s) were not on nothing tested by the state(s) witness." (Doc. 5 at 11.) In his Reply, Petitioner again argues the merits of his petition. (Doc. 24.) Petitioner fails to assert any reason for the untimeliness of his habeas petition, and therefore demonstrates no entitlement to equitable tolling. There is nothing in the record that suggests an external force prevented Petitioner from timely filing the Petition. And, 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 v. Garcia, 448 F.3d 1150, 1154 (9^th Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.").

Accordingly, Petitioner is not entitled to any equitable tolling. Petitioner's amended habeas petition is untimely.

CONCLUSION

Having determined that Petitioner's amended habeas petition is untimely, the Court will recommend that Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 5) be denied and dismissed with prejudice.

IT IS THEREFORE RECOMMENDED that Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5) be DENIED and DISMISSED WITH PREJUDICE;

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.

DATED this 29^th day of January, 2019.

/s/_________

Michelle H. Bums

United States Magistrate Judge