Opinion
No. CV-19-05187-PHX-JJT (ESW)
07-27-2020
Brian Nathanial Black, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Brian Nathanial Black's ("Petitioner") "Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus" (the "Petition") (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition (Doc. 1) as untimely.
I. BACKGROUND
In 2011, a jury sitting in the Superior Court of Arizona in and for Maricopa County convicted Petitioner of first degree murder and kidnapping. (Bates Nos. 2-4). Petitioner and the State entered into a Sentencing Stipulation, which the trial court accepted. (Bates Nos. 6-10). The trial court sentenced Petitioner to a prison term of natural life. (Bates No. 10).
Citations to the state court record submitted with Respondents' Limited Answer (Doc. 14) refer to the Bates-stamp numbers affixed to the lower right corner of each page of the record.
Petitioner filed a direct appeal. (Bates Nos. 15-50). On October 29, 2013, the Arizona Court of Appeals affirmed Petitioner's convictions and sentence. (Bates Nos. 52-53). The Arizona Supreme Court denied Petitioner's request for further review. (Bates No. 63).
On April 10, 2014, Petitioner filed a Notice of Post-Conviction Relief ("PCR"). (Bates Nos. 65-68). The trial court appointed counsel, who could not find a colorable claim for relief. (Bates Nos. 70-71, 75-77). Petitioner filed a pro se PCR Petition. (Bates Nos. 79-317). In a minute entry filed on August 22, 2017, the trial court denied relief. (Bates Nos. 342-49). The trial court denied Petitioner's request for a rehearing. (Bates No. 355).
On September 20, 2017, Petitioner filed a Petition for Review in the Arizona Court of Appeals. (Bates Nos. 357-65). On March 29, 2018, the Arizona Court of Appeals granted review, but denied relief. (Bates No. 375). Petitioner then petitioned the Arizona Supreme Court for further review. (Bates Nos. 377-84). On September 11, 2018, the Arizona Supreme Court denied review. (Bates No. 386).
Petitioner initiated this federal habeas proceeding on September 16, 2019. (Doc. 1). The Court screened the Petition (Doc. 1) and required Respondents to answer. (Doc. 7). Respondents filed a Limited Answer (Doc. 14) on January 13, 2020, to which Petitioner replied (Doc. 21).
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, a state prisoner must file his or her federal habeas petition within one year of 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 petitioner was prevented from filing by the State action;
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) ("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases."). Yet equitable tolling is applicable only "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. This Proceeding is Untimely
In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's judgment became "final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
The Arizona Court of Appeals affirmed Petitioner's convictions and sentences on October 29, 2013. (Bates Nos. 52-53). On March 21, 2014, the Arizona Supreme Court denied Petitioner's request for further review. (Bates No. 63). Petitioner had ninety days from March 21, 2014 (until June 19, 2014) to file a petition for writ of certiorari in the United States Supreme Court, but Petitioner did not do so. Sup. Ct. R. 13. Consequently, Petitioner's convictions and sentences became final on June 19, 2014. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("[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."). Accordingly, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a federal habeas petition expired on June 19, 2015, rendering this proceeding untimely. See Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (AEDPA's statute of limitations commences upon the expiration of the time for seeking review of petitioner's judgment in a state's highest court); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying the "anniversary method" of Rule 6(a) of the Federal Rules of Civil Procedure to calculate the expiration date of AEDPA's one-year statute of limitations).
1. Statutory Tolling
Statutory tolling does not apply to collateral review petitions that are not "properly filed." Pace v. DiGuiglielmo, 544 U.S. 408 (2005); 28 U.S.C. § 2244(d)(2). A collateral review petition is "properly filed" when its delivery and acceptance comply with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th Cir. 2014) (court looked to Nevada state filing requirements in determining whether habeas petitioner's PCR petition was a "properly filed" application that is eligible for tolling). This includes compliance with filing deadlines. Hence, an untimely state collateral review petition is not "properly filed." Pace, 544 U.S. at 417 (holding that "time limits, no matter their form, are 'filing' conditions," and that a state PCR petition is therefore not "properly filed" if it was rejected by the state court as untimely).
If the collateral review petition was "properly filed," then the Court must determine the dates it was "pending." In Arizona, a PCR petition becomes "pending" as soon as the notice of PCR is filed. Isley v. Ariz. Dep't of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004) ("The language and structure of the Arizona postconviction rules demonstrate that the proceedings begin with the filing of the Notice."). It remains "pending" until it "has achieved final resolution through the State's post-conviction procedures." Carey v. Saffold, 536 U.S. 214, 220 (2002). This includes "[t]he time between (1) a lower state court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law." Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing Carey, 536 U.S. 214).
Here, on April 10, 2014, before Petitioner's conviction became final, Petitioner initiated a PCR proceeding. (Bates Nos. 65-68). The limitations period therefore was immediately tolled when Petitioner's conviction became final on June 19, 2014. On September 11, 2018, the Arizona Supreme Court denied Petitioner's request for further review of the Arizona Court of Appeals' decision that affirmed the trial court's denial of PCR relief. (Bates No. 386). In his Reply, Petitioner asserts that "prison records[] will show that Petitioner signed for the receipt of the PCR notice of denial on September 17, 2018." (Doc. 21 at 2). Any delay in Petitioner's receipt of the Arizona Supreme Court's September 11, 2018 decision has no impact on statutory tolling. This is because "the statutory tolling period ends the day the state supreme court denies review; not when the prisoner receives notice of that ruling or his paper copy." Trimble v. Hansen, 764 F. App'x 721, 724 (10th Cir. 2019); see also Garcia v. Shanks, 351 F.3d 468, 472 (10th Cir. 2003) ("Section 2244(d)(2) clearly and unambiguously states that the federal limitations period is tolled only during the time a properly filed state application for collateral review is pending in the state court.") (emphasis in original). Therefore, the statute of limitations began running on September 12, 2018 and expired on September 11, 2019. This proceeding is untimely unless equitable tolling applies.
2. Equitable Tolling is Unavailable
Regarding equitable tolling, Petitioner has the burden to show that extraordinary circumstances beyond Petitioner's control made it impossible for him to file a timely federal petition. Roy, 465 F.3d at 969; Gibbs, 767 F.3d at 888 n.8. A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., Johnson v. United States, 544 U.S. 295, 311 (2005). In addition, a petitioner's miscalculation of when the limitations period expired does not constitute an "extraordinary circumstance" warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Alexander v. Schriro, 312 F. App'x 972, 976 (9th Cir. 2009) ("Ultimately [the petitioner] made an incorrect interpretation of the statute and miscalculated the limitations period. This does not amount to an 'extraordinary circumstance' warranting equitable tolling.").
As mentioned, Petitioner asserts that he did not receive the Arizona Supreme Court's decision concluding the PCR proceeding until September 17, 2018. (Doc. 21 at 2). A "prisoner's lack of knowledge that state courts have reached a final resolution of his case can provide grounds for equitable tolling if the prisoner has acted diligently in the matter." Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001) (citing Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (per curiam), amended in part by 223 F.3d 797 (5th Cir. 2000)). A prolonged delay in the state court's mailing of an order or in the prisoner's receipt of an order may qualify as an extraordinary circumstance justifying equitable tolling. See, e.g., Woodward, 263 F.3d at 1142-43. Yet "an ordinary de minimis delay incident to transmission of mail from court to prisoner would not be an extraordinary circumstance warranting equitable tolling." Earl v. Fabian, 556 F.3d 717, 723 n.3 (8th Cir. 2009); see also Saunders v. Senkowski, 587 F.3d 543, 550 (2d Cir. 2009) (seven-day delay in notice "occasioned by the normal course of the mail" is not "an 'extraordinary' circumstance for purposes of equitable tolling"); Diaz v. Kelly, 515 F.3d 149, 155 (2d Cir. 2008) (AEDPA's limitations period is not tolled during the "brief interval between the entry of a state court order and its receipt a few days later after prompt mailing"). "Every person knows, or should know, that it can take at least several days to receive mail even from within the same postal jurisdiction, and he can, and may reasonably be required to, adjust his conduct accordingly." Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001).
Here, Petitioner has asserted only a six-day delay in receiving the Arizona Supreme Court's denial of his Petition for Review. There is no indication in the record that the circumstances of Petitioner's incarceration made it "impossible" for Petitioner to timely file a federal habeas petition. Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (finding that equitable tolling did not apply where there was "no indication in the record that [circumstances] made it 'impossible' for [prisoner] to file on time"); Wilson v. Bennett, 188 F. Supp. 2d 347, 353-54 (S.D.N.Y. 2002) (allegations that the petitioner lacked legal knowledge and had to rely on other prisoners for legal advice and in preparing his papers "cannot justify equitable tolling" as such circumstances are not "extraordinary"). Petitioner has failed to show the existence of "extraordinary circumstances" that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a "prisoner must show that the 'extraordinary circumstances' were the cause of his untimeliness"). Equitable tolling therefore is unavailable. Accordingly, this federal habeas proceeding is untimely.
B. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the Untimeliness of this Proceeding
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the "actual innocence gateway" to federal habeas review that was applied 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. The "actual innocence gateway" is also referred to as the "Schlup gateway" or the "miscarriage of justice exception."
Under Schlup, a petitioner seeking federal habeas review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). "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, 133 S.Ct. at 1927 (explaining the significance of an "[u]nexplained delay in presenting new evidence"). 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, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327). 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. Thomas, 523 U.S. 538, 559 (1998)).
To the extent Petitioner asserts the actual innocence/Schlup gateway, Petitioner has not presented any new reliable evidence establishing that he is factually innocent of his convictions. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) ("In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him "within the 'narrow class of cases . . . implicating a fundamental miscarriage of justice.'") (citations omitted); Shumway, 223 F.3d at 990 ("[A] claim of actual innocence must be based on reliable evidence not presented at trial."); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) ("[W]e have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt."). Because Petitioner has failed to satisfy his burden of producing "new reliable evidence" of his actual innocence, the undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse the untimeliness of this federal habeas proceeding. See Smith v. Hall, 466 F. App'x 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the "threshold requirement of coming forward with 'new reliable evidence'"); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) ("To meet [the Schlup gateway standard], [petitioner] must first furnish 'new reliable evidence . . . that was not presented at trial.'").
IV. CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that the Petition (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 Report and 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. Thereafter, the parties have fourteen days within which to file a response to the 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 determinations 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.
Dated this 27th day of July, 2020.
/s/_________
Honorable Eileen S. Willett
United States Magistrate Judge