Opinion
CV-24-08038-PCT-KML (DMF)
11-01-2024
Alexander Greer Williams, Petitioner, v. Ryan Thornell, et al., Respondents.
TO THE HONORABLE KRISSA M. LANHAM, 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. 4 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-24-08038-PCT-KML (DMF).
On February 20, 2024, Petitioner Alexander Greer Williams (“Petitioner”), who is confined in the Central Arizona Correctional Facility 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”) (Doc. 1). The Petition challenges Petitioner's convictions in Yavapai County Superior Court, case number CR 2001-0891, for attempted child molestation, sexual conduct with a minor, attempted sexual conduct with a minor, and influencing a witness, which resulted in consecutive sentences totaling over fifty years of imprisonment (Doc. 1 at 1-2; Doc. 4 at 1).
The Petition was docketed by the Clerk of Court on February 26, 2024 (Doc. 1). The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on February 20, 2024 (Id. at 11). This Report and Recommendation uses February 20, 2024, as the operative filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs, dates, and attests the petition was placed in the prison mailing system); see also Rule 3, Rules Governing Section 2254 Cases (stating petition is timely if deposited in prison mailing system on or before last day for filing, which may be shown by “declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement”).
The Court ordered Respondents to answer the Petition (Doc. 4 at 2-3). Petitioner's reply deadline was set as thirty (30) days from the date of service of the answer (Id. at 3). On July 3, 2024, Respondents filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 14). On the same date, Respondents mailed a copy of the Answer to Petitioner at his address of record (Id. at 19). The time for reply has passed without Petitioner filing a reply.
For the reasons set forth below, it is recommended that that these proceedings be dismissed with prejudice as untimely, that the Clerk of Court be directed to terminate this matter, and that a certificate of appealability be denied.
I. BACKGROUND
A. Charges, Convictions, and Sentences
On November 29, 2001, Petitioner was indicted by a Yavapai County grand jury in case number CR 2001-0891 (Doc. 14-1 at 4-8). The indictment charged Petitioner with eight counts of indecent exposure, two counts of attempted child molestation, three counts of sexual conduct with a minor, three counts of child molestation, one count of furnishing harmful items to a minor, and one count of influencing a witness (Id.). The state alleged that at the time of the commission of the charged offenses, Petitioner had been convicted of prior felony offenses, including endangerment, two drug offenses, and a weapons offense (Id. at 10-11). The state also alleged that two of the prior felony convictions were predicate felonies under Arizona law due to the prior felonies involving “the use or threatening exhibition of a deadly weapon or instrument” (Id. at 15). The state further alleged that Petitioner was on probation at the time of the commission of the charged offenses (Id. at 10-11). In addition, the state alleged that the charged offenses were multiple offenses not committed on the same occasion, but that the charged offenses were consolidated for trial purposes (Id. at 13). Also, the state alleged that the victim in Counts XI through XVI of the indictment was twelve (12) years of age or younger (Id. at 18).
On July 2, 2002, with representation of counsel, Petitioner entered a plea agreement and pleaded guilty to one count each of sexual conduct with a minor, attempted sexual conduct with a minor, attempted child molestation, and influencing a witness (Id. at 20-25, 27). The plea agreement contained agreements for dismissal of the remaining charges, dismissal of any allegation of prior felony convictions, dismissal of any allegation of age of victim twelve years or younger, any allegation of multiple offenses, and any allegation of prior predicate felony (Id. at 23; see also Id. at 31). The superior court accepted Petitioner's guilty pleas on July 2, 2002 (Id. at 27). On September 16, 2002, Petitioner was sentenced to aggravated, consecutive sentences of imprisonment totaling fifty-nine and a half years followed by community supervision (Id. at 20-32). At the sentencing, Petitioner was “provided written notice of rights of post conviction relief' (Id. at 31).
Petitioner was later represented by the same counsel at his sentencing (Id. at 29). In a post-conviction filing, Petitioner referenced two different lawyers having represented him during the superior court proceedings leading to his sentencing (Id. at 41).
B. First Post-Conviction Relief (“PCR”) Proceedings
On October 3, 2002, Petitioner filed a Request for Preparation of Post-Conviction Record and a pro se Petition for Post-Conviction Relief (“PCR petition”) (Id. at 34-36, 3854). The PCR petition was prepared on a form to which Petitioner made handwritten additions (Id. at 38-42). The PCR petition raised multiple issues and included several attachments, including copies of legal authorities (Id. at 38-54).
On April 23, 2003, Petitioner's PCR counsel filed a notice which informed that after his review of the record, he could not “find any colorable claims for relief to raise in this post-conviction proceeding” (Id. at 56-59). On April 25, 2003, the superior court granted Petitioner sixty days from the date of the order within which to file a petition for postconviction relief (“PCR Petition”) and ordered that Petitioner's PCR counsel “continue to be available to [Petitioner] should his services be needed” (Id. at 61-62). In July 2003, and after the passage of sixty days from April 25, 2003, the superior court issued an order stating that Petitioner had not filed any additional pleadings (Id. at 64-65). In the same order, the superior court recounted that it had reviewed Petitioner's pro se PCR petition initiating the PCR proceedings and “searched the record for any basis for post-conviction relief[,]” but found no basis for post-conviction relief (Id.). The superior court concluded based on “the pleadings and the information in the [c]ourt's file” that “there are no claims presenting a material issue of fact or law which would entitle [Petitioner] to relief under Rule 32 and no purpose would be served by any further proceedings” (Id.). The superior court dismissed the PCR proceedings (Id.). Petitioner did not seek review of the dismissal in the Arizona Court of Appeals.
PCR counsel was not either of the previous two attorneys who had represented Petitioner (see Id. at 41, 56).
Pursuant to Rule 5(d) of the Rules Governing § 2254 cases required Respondent to file any brief submitted by Petitioner in appeal in PCR proceedings, and no such materials are included as to Petitioner's first PCR proceedings (Doc. 14-1 at 1-2). Further, in his Petition, Petitioner admits that he did not seek review of the superior court's dismissal of his first PCR proceedings (Doc. 1 at 5).
C. Second & Third PCR Proceedings
Over nine years later, in November 2012, Petitioner filed a second pro se PCR petition (Doc. 14-1 at 67-70). Regarding his previous PCR proceedings, Petitioner wrote that his “mom was doing a Rule 32 for” him “but she died befor[e]” Petitioner knew “what do with it” and that Petitioner did not know if his mom “put it in for [him] or not” (Id. at 69). In an order filed on November 19, 2012, the superior court noted that Petitioner was sentenced on September 16, 2002, and that Petitioner's first petition for post-conviction relief was dismissed on July 9, 2003 (Id. at 72). The superior court found that the time for filing a notice of post-conviction relief had expired, found that “the reasons offered by [Petitioner] as to why he might be eligible for relief are precluded pursuant to Rule 32.2(a),” and denied post-conviction relief (Id.).
Years later, in 2017, Petitioner filed a notice of appeal (Id. at 75-76). The Arizona Court of Appeals construed the notice of appeal as a petition for review (Id. at 100-101). On April 27, 2017, the court of appeals found that “[t]he petition for review was not filed within 30 days of the [post-conviction] court's final decision disposing of the petition for post-conviction relief proceedings,” and thus, was “untimely” (Id. at 100). The court of appeals stated that “[w]hether petitioner was without fault for the untimely filing is a question of fact,” and that “[t]he trial court may ‘after being presented with the proper evidence, allow a late filing' if it finds that [Petitioner] was not responsible for the untimely filing.” (Id.) (citation omitted). The court of appeals dismissed the proceedings as untimely (Id.).
At the time that Petitioner filed the 2017 notice of appeal, which was construed by the court of appeals as a petition for review and dismissed as untimely, Petitioner also filed a pro se “Motion for Post-Conviction Relief (Rule 32)” in the superior court (Id. at 78-98). Petitioner's motion attached documents which included a 2002 court ordered evaluation report as well as 2002 and 2003 letters authored by Ronald A. Peterson, Ph.D. (Id.). The letter with the evaluation report was addressed to the superior court judge who ordered the evaluation report and later sentenced Petitioner (Id. at 90-96). The evaluation report reflected Dr. Peterson's professional assessment and opinion that Petitioner was not mentally ill and was competent (Id.). From their contents, the 2003 letters appear to have been sent to Petitioner in 2003 (Id. at 87-88). In May 2017, the superior court dismissed the “Motion for Post-Conviction Relief (Rule 32)” as untimely (Id. at 103). Neither party has submitted any record reflecting that Petitioner sought review in the Arizona Court of Appeals of the May 2017 dismissal.
D. Fourth, Fifth, and Sixth PCR Proceedings
On February 2020, Petitioner filed a pro se PCR notice (Id. at 105-108). Later in February 2020, the superior court dismissed the PCR notice and proceedings, finding the PCR notice untimely filed (Id. at 110). Neither party has submitted any record reflecting that Petitioner filed a petition for review regarding the dismissal.
In 2021, Petitioner filed in the superior court a notice of appeal citing Rule 32.1, which was the applicable post-conviction relief rule at the time (Id. at 112-113). Petitioner also filed a pro se “Motion for Post-Conviction Relief (Rule 32)” in the superior court (Id. at 115-131). In a November 2021, order, the superior court construed the filings as one or more requests for post-conviction relief, found the filings untimely, and denied relief on the filings (Id. at 133). Neither party has submitted any record suggesting that Petitioner filed a petition for review regarding the superior court's order.
In June 2023, Petitioner filed another pro se PCR petition in the superior court (Id. at 135-141). In August 2003, the superior court summarily dismissed the PCR petition and proceedings, finding that the PCR petition was untimely and that the issues contained within the petition were precluded (Id. at 143-144). In doing so, the court addressed Petitioner's argument that the untimeliness was not his fault and determined that Petitioner previously raised the same arguments in prior postconviction proceedings, including those filed in October 2002 and in 2017 (Id. at 143). The superior court concluded that the PCR petition “d[id] not demonstrate how the untimeliness is not the fault of [Petitioner]” and found that “the issues [were] precluded” (Id.). The court summarized that the PCR petition “fail[ed] to raise any colorable claim” and Petitioner “presented no viable argument warranting relief' (Id. at 144). The superior court summarily dismissed the PCR petition (Id.). Neither party has submitted any record indicating that Petitioner filed a petition for review regarding the superior court's order.
II. THESE HABEAS PROCEEDINGS
Petitioner raises one ground in the Petition, which Petitioner characterizes as an illegally imposed sentence because Petitioner did not understand that he had the right to reject his plea agreement (Doc. 1 at 6). Petitioner avers that he neither read his plea agreement nor understood “what [he] was signing” due to his low level of education and lack of knowledge about the legal system (Id.). Petitioner asserts that he “only went through the 7th grade[,]” that he had a third grade reading level, and that he had “no knowledge of legal procedure” (Id.). Petitioner states that his trial counsel read the plea agreement to Petitioner and told Petitioner that he “would get life[-]time probation or up to 27 [years] in prison” (Id.). Petitioner contends that prior to sentencing, Petitioner requested to “take [the case] to trial,” but was told, “no,” without explanation, after which Petitioner signed the plea agreement, not knowing that he could reject the plea agreement (Id.). Regarding state court proceedings, Petitioner represents that he “did not know” that he was “able to appeal due to not having access to a paralegal” (Id. at 5). Petitioner left blank the section of the Petition for explanation of any untimeliness of these proceedings (Id. at 11). Petitioner asks the Court to reopen the Yavapai County Superior Court case for trial so that “all evidence can be brought to the attention of a jury” and so that Petitioner “can prove [his] innocence by having the witnesses on the stand” (Id.). Attached to the Petition are letters and documents dated and/or appearing to have been prepared in 2002 and 2003 (Doc. 1-1).
Petitioner represents that this is his first petition, application, or motion in federal court regarding the convictions challenged (Doc. 1 at 10).
Respondents assert that the Petition was untimely filed without excuse, that the Petition's claim is not cognizable because no violation of federal law is alleged, and that the Petition's claim is procedurally defaulted without excuse (Doc. 14).
Petitioner was served with the Answer (Id. at 19), but Petitioner did not file a reply.
III. TIMELINESS
Respondents raise the affirmative defense of untimeliness (Doc. 14). Therefore, the 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). As discussed below, the Petition was untimely filed and is time-barred.
A. AEDPA's One Year Limitations Period and Statutory Tolling
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, 1245 (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 February 20, 2024, the date Petitioner placed his Petition in prison mail, as the applicable filing date for the Petition.
See supra note 2.
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 claim arises from a final judgment and sentence, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless a later start date applies under 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Here, the record does not present any basis for a later start date pursuant to 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Under 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.” Yet, AEDPA also expressly provides for statutory tolling of the limitations period when a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 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. Allen v. Siebert, 552 U.S. 3, 6 (2007).
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 postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)); Allen, 552 U.S. at 6 (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).
In Melville v. Shinn, the Ninth Circuit held that a PCR petition ceases to be pending “when the time for [Petitioner] to seek further relief in the state courts expired.” 68 F.4th 1154, 1156 (9th Cir. 2023). The Ninth Circuit concluded that “a PCR application is pending as long as a state avenue for relief remains open, whether or not a petitioner takes advantage of it.” Id. at 1156. Thus, whether the state collateral review process is pending “requires looking to the relevant state's law and procedural rules.” Id. at 1160.
The superior court sentenced Petitioner on September 16, 2002 (Doc. 14-1 at 3032). As Respondents recognize (Doc. 14 at 6), Petitioner had ninety (90) days thereafter, or until December 16, 2002, within which to file a notice of post-conviction relief in order to have a “properly filed” application for state post-conviction review and to toll AEDPA's one-year statute of limitations. As Respondents also recognize (Id. at 6-7), Petitioner timely initiated PCR proceedings within this deadline. On July 9, 2003, the superior court dismissed the PCR proceedings. Petitioner had thirty days, until Friday, August 8, 2003, to file a petition for review in the court of appeals. See former Ariz. R. Crim. P. 32.9(c) (requiring filing of petition for review within thirty days after the final decision of the trial court on the petition for post-conviction relief or the motion for rehearing).
Because Petitioner did not file a petition for review in the court of appeals, Petitioner is entitled to statutory tolling through August 8, 2003, the date on which the last state avenue for relief expired. AEDPA's one-year statute of limitations period commenced to run on August 9, 2003, and the period for Petitioner to file a habeas petition expired on Monday, August 9, 2004. 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 filed these habeas proceedings on February 20, 2024, over nineteen years after the expiration of AEDPA's limitations period.
Respondents assert that AEDPA's limitations period expired on July 12, 2004 (Doc. 14 at 7). However, Respondents do not account for thirty days for Petitioner to file a petition for review of the superior court's dismissal of Petitioner's first PCR proceedings. See Melville, 68 F.4th at 1156 (holding that PCR proceedings remain pending while avenue for relief remains open, whether or not petitioner took advantage of the avenue for relief).
Because an untimely PCR notice does not statutorily toll AEDPA's limitations period, Pace, 544 U.S. at 414, Petitioner's untimely subsequent PCR notices and proceedings did not toll the limitations period. Indeed, the state court dismissed Petitioner's subsequent PCR proceedings as untimely and successive. Moreover, because Petitioner's subsequent PCR proceedings were filed after AEDPA's limitations period expired in August 2004, Petitioner's subsequent PCR proceedings could not restart AEDPA's limitations period. See Jiminez, 276 F.3d at 482; Ferguson, 321 F.3d at 823.
Accordingly, Petitioner's first PCR proceedings tolled AEDPA's limitations period through August 8, 2003, after which no state avenue for relief remained open. AEDPA's one-year limitations period expired on August 9, 2004. These proceedings, which Petitioner initiated on February 20, 2024, over nineteen years after the expiration of AEDPA's one-year limitations period, are untimely unless Petitioner demonstrates that equitable tolling and/or the actual innocence gateway apply to render these proceedings timely filed.
B. 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 circumstance 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.” Holland, 560 U.S. 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.'” Espinoza-Matthews 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” (alteration in original) (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.”) (second alteration in original) (citations and internal emphasis omitted). 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.” (internal citations omitted)). “The grounds for equitable tolling ‘are highly factdependent.'” Id. (quoting Sossa, 729 F.3d at 1237).
Nevertheless, a petitioner's pro se status, indigence, 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.”); Ballesteros v. Schriro, No. CIV 06-675-PHX-EHC (MEA) 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (finding 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); see Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009); Gutierrez v. King, No. EDCV 13-1676-TJH (RNB), 2014 WL 879618, at *2 (C.D. Cal. Mar. 5, 2014).
Further, the Ninth Circuit has “rejected the argument that lack of access to library materials automatically qualifie[s]” for equitable tolling. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Instead, a petitioner must establish that due to circumstances beyond the petitioner's control that the petitioner could not have filed “a basic form habeas petition” within the limitations period, despite exercising reasonable diligence. Waldron-Ramsey, 556 F.3d at 1014 (denying tolling when a petition was 340 days late because, for three years, the petitioner “had access to all of the documents necessary for his Faretta [v. California, 422 U.S. 806 (1975),] self-representation claim. He could have developed that argument, outlined the other arguments and the facts underlying those arguments on the form habeas petition, and then sought to amend his petition when he got more information.”). Even if a petitioner faces difficulties in accessing legal materials, the petitioner is not entitled to equitable tolling absent credible allegations that the petitioner was denied access to a particular document when needed. Id.; see also Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009) (holding lack of legal materials does not entitle a petitioner to equitable tolling when the petitioner knows the factual bases of his claims).
After careful review, Petitioner's arguments and the circumstances reflected in the record do not demonstrate that any extraordinary circumstance prevented Petitioner from timely bringing the present habeas claim in this Court. Nor has Petitioner demonstrated the diligence towards filing a habeas petition required for application of equitable tolling.
As reviewed above, a petitioner's pro se status, ignorance of the law, or lack of legal sophistication does not constitute extraordinary circumstances justifying equitable tolling. See Rasberry, 448 F.3d at 1154; see, e.g., Baker v. Cal. Dep't of Corr., 484 F. App'x. 130, 131 (9th Cir. 2012) (“Low literacy levels, lack of legal knowledge, and need for some assistance to prepare a habeas petition are not extraordinary circumstances to warrant equitable tolling of an untimely habeas petition.”).
Petitioner's assertions that he had a third grade reading level and only went to the seventh grade do not establish equitable tolling. The Ninth Circuit has held that a petitioner asserting equitable tolling based on a mental impairment must meet a two-prong test:
(1) First, a petitioner must show his mental impairment was an “extraordinary circumstance” beyond his control [...] by demonstrating the impairment was so severe that either
(a) petitioner was unable rationally or factually to personally understand the need to timely file, or
(b) petitioner's mental state rendered him unable personally to prepare a habeas petition and effectuate its filing.
(2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance.Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) (emphasis removed). Under the second prong of the test, the Court “considers whether the petitioner's impairment was a but-for cause of any delay.” Id. at 1100. “The ‘totality of the circumstances' inquiry in the second prong considers whether the petitioner's impairment was a but-for cause of any delay.” Id.; see also Milam v. Harrington, 953 F.3d 1128, 1132 (9th Cir. 2020) (stating that equitable tolling due to a mental impairment does not require a literal impossibility, but instead only a showing that the mental impairment was a but-for cause of any delay). “With respect to the necessary diligence, the petitioner must diligently seek assistance and exploit whatever assistance is reasonably available.” Bills, 628 F.3d at 1101. “[E]ven in cases of debilitating impairment the petitioner must still demonstrate diligence.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014); see Stancle v. Clay, 692 F.3d 948, 959 (9th Cir. 2012) (“[T]he petitioner must show diligence in seeking assistance with what he could not do alone.”); Bills, 628 F.3d at 1100 (“The petitioner . . . always remains accountable for diligence in pursuing his or her rights.”).
Here, Petitioner meets neither prong of the Bills test.
Regarding the first prong, the record does not support a severe mental impairment. Petitioner attached a 2002 psychological evaluation to his Petition (Doc. 1-1 at 1-8). As part of the evaluation, the psychologist administered tests which reflected that Petitioner lacked any signs of neurological deficits and that Petitioner's intellectual functioning was at the low end of average (Id. at 5). In August 2002, the psychologist reported that “[b]oth tests of intelligence place [Petitioner] in the low end of the average range of general mental ability” (Id.). The psychologist opined that while Petitioner was “experiencing emotional turmoil[,]” Petitioner was “not mentally ill and he is competent” (Id. at 6).
Further, Petitioner has not shown that he was unable to rationally or factually understand the need to timely file or that his mental state rendered him unable to personally prepare a habeas petition and effectuate its filing. Indeed, the record reflects that Petitioner had sufficient comprehension and ability to file timely first PCR proceedings raising multiple claims as well as make several filings after expiration of AEDPA's limitation period and before filing these habeas proceedings. Petitioner's filings in his state court PCR proceedings and in this matter reflect understanding of legal issues, capacity to write clearly about factual matters, and ability to articulate legal arguments sufficiently to fill out a timely habeas petition and file such with this Court.
Regarding the second prong, Petitioner has not established that he has been diligently pursuing his rights. These habeas proceedings were filed over nineteen years after AEDPA's one-year statute of limitations expired. Even Petitioner's state court filings were sporadic over the years after dismissal of his first timely PCR proceedings. Indeed, the statements Petitioner makes and the documents he submits in support of his Petition are redundant to arguments and exhibits he presented in state court years ago. Neither Petitioner's arguments nor this record establish the requisite diligence for equitable tolling.
In sum, Petitioner has not met his burden of demonstrating that equitable tolling applies to excuse the over nineteen years late filing of these proceedings. Thus, these proceedings were untimely filed unless the actual innocence gateway applies to excuse Petitioner's late filing of these proceedings.
C. 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 (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 (holding that 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); see also Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'” (quoting Schlup, 513 U.S. at 324)). 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, 569 U.S. at 399 (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)).
Attached to the Petition are letters and documents dated and/or appearing to have been prepared in 2002 and 2003 (Doc. 1-1). All of these materials were previously attached to Petitioner's state court PCR filings (see, e.g., Doc. 14-1 at 87-96, 121-131). In his Petition, including its attachments, Petitioner does not present new reliable evidence that would more likely than not prevent a jury from convicting him. Nor does the record otherwise contain such evidence. Petitioner has not shown and the record does not support application of the actual innocence gateway to excuse Petitioner's late filing of these proceedings.
IV. CONCLUSION
As discussed above, the Petition which initiated this matter was untimely filed more than nineteen years after AEDPA's statute of limitations expired, and neither equitable tolling nor the actual innocence gateway apply to excuse the untimely filing. Due to the untimeliness of the Petition, it is recommended that the Petition be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter. Because of the Petition's untimeliness and the corresponding recommendation for dismissal, undersigned has not addressed Respondents' other arguments regarding non-cognizability and procedural default.
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. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
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.