Opinion
CV 19-0049-TUC-JGZ (JR)
06-09-2021
Rick E. Welch, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
JACQUELINE M, RATEAU, UNITED STATES MAGISTRATE JUDGE
Petitioner Rick E. Welch, through counsel, filed a Petition for a Writ of Habeas Corpus (Doc. 1) pursuant to 28 U.S.C. § 2254 on January 31, 2019. In accordance with the Rules of Practice of the United States District Court for the District of Arizona and 28 U.S.C. § 636(b)(1), this matter was referred to the Magistrate Judge for report and recommendation. Welch raises five grounds for relief. Respondents filed an Answer (Doc. 18) contending that the Petition is untimely, and that many of Welch's claims are non-cognizable or procedurally defaulted. As explained below, the Magistrate Judge finds that the Petition is untimely, and that Welch is not entitled to equitable tolling. The Magistrate Judge therefore recommends that the District Court, after an independent review of the record, dismiss the Petition with prejudice.
I. Factual and Procedural Background
A. Indictment and Conviction
The Arizona Court of Appeals' recitation of the facts underlying Welch's convictions for multiple counts of sexual exploitation of a minor under 15 is entitled to a presumption of correctness, see Runingeagle v. Ryan, 686 F.3d 758, 763 n. 1 (9th Cir. 2012), and is as follows:
In December 2010, Tucson Police Department Detectives Dan Barry and Steve Sussen, as part of a police training seminar, found “files of interest” - images or videos potentially related to child pornography - while browsing a shared computer network to which Welch belonged. They obtained a search warrant and seized Welch's computer, modem, external hard drive, cell phone, and computer discs (CDs). The seized items contained graphic images of child pornography.
Welch was indicted on twenty counts of sexual exploitation of a minor under the age of fifteen, all class two felonies. All counts were alleged to be dangerous crimes against children. Following a six-day trial, a jury convicted Welch of five of the counts and determined the state had proved beyond a reasonable doubt that the offenses were dangerous crimes against children. The trial court sentenced him to consecutive, minimum prison terms of ten years for each count.
Pet. Ex. 18, p. 2.
B. Direct Appeal
Welch filed a timely direct appeal, arguing through counsel in his Opening Brief that: (1) his Fourth and Fourteenth Amendment rights were violated by a warrantless electronic search of his computer; (2) a new trial should have been granted due to juror misconduct; (3) a mistrial should have been granted when a detective testified it took a deliberate act to place a file on one's computer; (4) the trial court erred by denying a request for a third-party culpability instruction; and (5) the sentence of 50 years was clearly excessive and violated the Eighth and Fourteenth Amendments. Pet. Ex. 15 (Opening Brief). The court of appeals found no error and affirmed Welch's convictions and sentence on March 21, 2012. Ex. A, p. 13. The State responded, and Welch replied. Pet. Exs. 16, 17. On November 14, 2014, the Arizona Court of Appeals affirmed Welch's convictions and sentences. Pet. Ex. 18.
In January of 2015, Welch petitioned the Arizona Supreme Court for review of the court of appeals' decision, raising four claims for review. Pet. Ex. 19. Welch argued that (1) the alleged warrantless electronic search conducted on his computer violated the United States and Arizona Constitutions; (2) a mistrial should have been granted when the detective testified that it took a deliberate act to place a child pornography file on one's computer; (3) a new trial should have been granted due to juror misconduct; and (4) the sentence of 50 years was clearly excessive and violated the United States and Arizona constitutions. Pet. Ex. 19. On June 11, 2015, the Arizona Supreme Court denied review. Pet. Ex. 20. The court of appeals' mandate in the case issued on July 28, 2015. Pet. Ex. 21.
C. Post-Conviction Proceedings
On August 26, 2015, Welch filed a notice of post-conviction relief (“PCR”). Pet. Ex. 22. On April 11, 2016, Welch, through counsel, filed his PCR petition, raising five ineffective assistance of counsel (“IAC”) claims. Pet. Ex. 23. Welch argued that his trial counsel erred by: (1) failing to engage an expert to examine his computer's hard drive; (2) failing to engage an expert to conduct an investigation to locate his business records for use in developing and presenting alibi and third-party liability defenses; (3) failing to have Welch testify at the suppression hearing and for failing to engage an expert to consult with and /or testify at the suppression hearing; (4) failing to adequately prepare Welch to testify at trial; and (5) failing to object to the State's closing argument about the content of a disc labeled “ADO” only containing child pornography. Pet. Ex. 23, pp. 4-15. Welch also alleged that, based on the testimony of a qualified forensic computer expert, no reasonable jury would have found him guilty of the underlying offenses beyond a reasonable doubt. Id., pp. 15-16. The State responded to the petition, Pet. Ex. 24, and Welch replied, Pet. Ex. 25. On August 4, 2016, the post-conviction court, finding that Welch presented no colorable claims, denied relief, and dismissed the petition. Pet. Ex. 26.
On April 20, 2017, Welch filed a petition for review with the Arizona Court of Appeals in which he argued that his trial counsel was ineffective by failing to hire a computer expert to conduct a forensic evaluation of Welch's computer, to act as a pre-trial and trial consultant, and to testify at trial. Pet. Ex. 27. In a Memorandum Decision filed on July 14, 2017, the appellate court granted review, addressed Welch's claims, and denied relief. Pet. Ex. 28.
On September 14, 2017, Welch filed a petition for review by the Arizona Supreme Court, again contending that his trial counsel was ineffective by failing to hire a computer expert to conduct a forensic evaluation of Welch's computer, to act as a pre-trial and trial consultant, and to testify at trial. Pet. Ex. 29. On January 9, 2018, the Arizona Supreme Court denied Welch's petition for review. Pet. Ex. 30. On March 9, 2018, the Arizona Court of Appeals issued its mandate. Pet. Ex. 31.
D. Pending Habeas Petition
Welch commenced this action with the Petition now before the Court, which was filed on January 31, 2019, and alleges five grounds for relief. Doc. 1. In Ground One, Welch contends that the warrantless electronic search of his computer violated the Fourth and Fourteenth Amendments. Id., pp. 7-9. In Ground Two, he contends that his Fifth and Fourteenth Amendment due process rights were violated when Detective Barry testified that it took a deliberate act to place a child pornography file on a computer. Id., pp. 9-10. In Ground Three, Welch contends that his trial counsel was ineffective by failing to engage a computer expert. Id., pp. 10-13. In Ground Four, he alleges that juror misconduct resulted in the consideration of false extrinsic evidence and requires that he be given a new trial. Id., pp. 13-15. In Ground Five, he contends that the 50-year sentence imposed by the trial court was excessive and disproportional in violation of the Eighth and Fourteenth Amendments. Id., p. 15.
II. Discussion
Respondents contend that the Petition should be dismissed as time-barred because it was not filed within the applicable limitations period. Respondents alternatively contend that Welch's claims are not cognizable and are unexhausted and procedurally defaulted. Because the Petition was untimely filed, the Court recommends that it be dismissed on that basis.
A. Statute of Limitations
The threshold issue is whether Welch's Petition is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides for a one-year statute of limitations to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Petitions filed beyond the one-year limitations period must be dismissed. Id. The statute provides in pertinent part that:
(1) 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.
(2) The 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 shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005).
Here, after the court of appeals denied relief, Welch filed a petition for review by the Arizona Supreme Court, which was denied on June 11, 2015. Pet. Ex. 20. Welch had 90 days from that date to seek a writ of certiorari in the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (“the 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.”); Jimenez v. Quarterman, 555 U.S. 113, 120-21 (2009). Thus, absent tolling, the statute of limitations would have begun to run 90 days after the Arizona Supreme Court denied review. See Bowen, 188 F.3d at 1159 (“when a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires”).
Because Welch provided his PCR notice to prison authorities for filing before his conviction became final, no untolled time passed between the finality of his conviction on direct review and the commencement of his PCR proceedings. 28 U.S.C. § 2244(d)(2) (“[t]he time during which a properly filed application for State post-conviction . . . review . . . is pending shall not be counted toward any period of limitation . . . .”); Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) (an application for State post-conviction relief is properly filed “when its delivery and acceptance are in compliance with the applicable law and rules governing filings.”). The statute of limitations began running when tolling ended on the date the Arizona Supreme Court denied review of Welch's PCR petition- January 9, 2018 (see Pet. Ex. 30)-and expired one year later, on January 10, 2019. See Harris v. Carter, 515 F.3d 1051, 1053 n. 3 (9th Cir. 2008) (“We hold that the statute of limitations is tolled for all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.”) (internal quotations and citation omitted); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying “anniversary method” under Fed.R.Civ.P. 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later on the anniversary of such adoption, April 24, 1997). Thus, Welch's habeas petition filed on January 31, 2019, was filed three weeks too late.
In his reply, relying on Lawrence v. Florida, 549 U.S. 327 (2007), Welch contends that the running of the limitations period commenced not on January 9, 2018, when the Arizona Supreme Court denied review of his PCR petition, but from March 9, 2018 when the Arizona Court of Appeals issued the mandate. Reply (Doc. 21), pp. 3-5. In Lawrence, the issue was whether the § 2244(d)(2) limitations period was tolled during the pendency of Lawrence's petition for certiorari to the Supreme Court seeking review of the denial of state postconviction relief. The Court answered the question in the negative, finding that the Supreme Court is not a part of a “[s]tate's post-conviction procedures, ” and held that an application for state post-conviction review is no longer pending, and does not toll the limitations period, after the state court's post-conviction review is complete. 549 U.S. at 332.
Contrary to Welch's contentions, the rule announced in Lawrence does not support the proposition that his PCR proceedings remained pending until the Arizona Court of Appeals issued its mandate. This argument is expressly foreclosed by Hemmerle v. Schriro, 495 F.3d 1069 (9th Cir. 2007), where the Ninth Circuit found it clear that in Arizona a collateral proceeding subject to the § 2244(d)(2) limitations period remains pending only until the Arizona Supreme Court denies review. Id. at 1077. As subsequent cases in the District of Arizona have noted, “[u]nder the Arizona rules . . . there is no requirement for a mandate to issue from a denial of review. Under such circumstances, review is final when denied. There is nothing more for the reviewing court to do.” Wyatt v. Ryan, No. CV-14-01981-TUC-JGZ (EJM), 2016 WL 7972105 (Dist. Ariz. Dec. 5, 2016) (citing Hemmerle). Thus, based on Lawrence and Hemmerle, the Court finds that Welch's PCR proceedings concluded for purposes of 28 U.S.C. § 2244(d)(2) when the Arizona Supreme Court denied review, and did not continue to remain pending until the Arizona Court of Appeals issued its mandate.
B. Equitable Tolling
AEDPA's one-year statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled to equitable tolling of the limitations period “only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). “The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule.” Id. The petitioner bears the burden of showing “extraordinary circumstances were the cause of his untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (internal quotation and citation omitted).
In neither the Petition nor the Reply does Welch contend that he is entitled to equitable tolling. The only plausible argument for tolling, because Welch is represented by counsel, would be that the untimely filing of the Petition was the fault of counsel and that the error should not be imputed to Welch himself. However, even if he had raised the argument, it would be rejected. Addressing this very argument, the Supreme Court has stated:
Second, Lawrence argues that his counsel's mistake in miscalculating the limitations period entitles him to equitable tolling. If credited, this argument would essentially equitably toll limitations periods for every person whose attorney missed a deadline. Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel. E.g., Coleman v. Thompson, 501 U.S. 722, 756-757, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).Lawrence, 549 U.S. at 336-37 (2007). Thus, even if raised, this argument would not have established that extraordinary circumstances prevented Welch from timely filing the petition.
Accordingly, the Court finds that Welch is not entitled to equitable tolling and the petition is untimely.
III. Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, dismiss Welch's Petition for Writ of Habeas Corpus (Doc. 1) as time-barred without excuse, direct the Clerk of Court to enter judgment in favor of Respondents and against Petitioner, and deny a certificate of appealability.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, 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 District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number: CV 19-0049-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).