Opinion
CV-22-00049-PHX-JJT (DMF)
08-18-2022
Lorenzo Leon Brown, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE JOHN J. TUCHI, 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) Petitioner Lorenzo Leon Brown (“Petitioner”), who is confined in an Arizona State Prison Complex in Tucson, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”) on January 6, 2022. (Doc. 1)
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-22-00049-JJT (DMF).
The Petition was docketed by the Clerk of Court on January 10, 2022. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on January 6, 2022. (Doc. 1 at 14) This Report and Recommendation uses January 6, 2022, 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.”).
On February 11, 2022, the Court dismissed the Petition with leave to amend for failure to comply with Rules of Practice of the U.S. District Court for the District of Arizona (“LRCiv”) 3.5(c) and failure to allege a constitutional violation in each of the Petition's grounds for relief. (Doc. 3) In late March 2022, Petitioner filed an Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”). (Doc. 7) On April 20, 2022, the Court ordered Respondents to answer the Amended Petition. (Doc. 8)
Petitioner's Amended Petition was filed in late March 2022. (Doc. 7) Under Fed.R.Civ.P. 15(a), a petitioner may amend his petition once, and the amended petition will relate back to the date of filing of the original petition. See Mayle v. Felix, 545 U.S. 644, 656-64 (2005) (allowing relation back where original and amended petition state claims with a “common core of operative facts”). This Report and Recommendation uses January 6, 2022, as the operative filing date of the Amended Petition.
Respondents filed their Limited Answer to the Amended Petition on May 23, 2022. (Doc. 11) Petitioner did not file a reply, and the time to do so expired in late June 2022. (Doc. 8 at 4)
For the reasons set forth below, it is recommended that these proceedings be dismissed with prejudice as untimely filed, the Clerk of Court be directed to terminate this matter, and a certificate of appealability be denied.
I. BACKGROUND
In the Amended Petition, Petitioner references two separate Maricopa County Superior Court criminal cases: case CR2012-126217 (related to Petitioner's conviction for unlawful flight), and case CR2012-156099 (related to Petitioner's convictions for aggravated assault, disorderly conduct, and criminal trespass in the first degree). (Doc. 7 at 1-2, 29, 63)
A. Petitioner's Charges, Convictions, and Sentences
1. Case CR2012-126217 (unlawful flight)
In its memorandum decision on Petitioner's direct appeal of his conviction and sentence in Maricopa County Superior Court case CR2012-126217, the Arizona Court of Appeals summarized the events leading to Petitioner's charge, conviction, and sentence:
Just before 1:00 a.m. on February 13, 2012, [Petitioner] was driving a red Infiniti northbound on 23rd Avenue in Phoenix. As it passed a Phoenix police officer finishing a traffic stop, the officer recognized the vehicle as one that
had fled from him a week prior and noticed the driver and lone occupant was a black male. The officer followed the Infiniti, activating his lights and sirens after the Infiniti rapidly accelerated from a traffic light. The Infiniti pulled away, reaching a speed of over 70 miles per hour, and the officer gave up the pursuit. The officer saw the red Infiniti turn west onto Earll Drive.
After waiting approximately five minutes, the officer followed the Infiniti's route down Earll Drive and found it parked in a residential driveway. The officer found [Petitioner], a black male, trying to conceal himself in the driver's seat; the keys were in his hand and no one else was in the Infiniti. Another responding officer arrested [Petitioner].
A grand jury indicted Brown with unlawful flight from a law enforcement vehicle, a class 5 felony, under A.R.S. § 28-622.01. A jury of eight found [Petitioner] guilty as charged and found he committed the offense while on probation for two other felonies. See A.R.S. § 13-708(A) (Supp. 2014). At trial, [Petitioner] admitted he had two prior historical felony convictions. See A.R.S. §§ 13-105(22), -703(J) (Supp. 2014). The superior court sentenced [Petitioner] to a presumptive term of five years imprisonment.(Doc. 11-1 at 53-54)During the trial court proceedings in the Maricopa County Superior Court, Petitioner was represented by counsel. (See, e.g., Doc. 11-1 at 16-18, 20-22, 28) On January 15, 2014, Petitioner's sentencing hearing in case CR2012-126217 was conducted together with Petitioner's sentencing hearing in case CR2012-156099. (Id. at 24-26; Doc. 11-2 at 68-71)
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
2. Case CR2012-156099 (aggravated assault, disorderly conduct, and criminal trespass in the first degree)
In Maricopa County Superior Court case CR2012-156099, a grand jury charged Petitioner with aggravated assault, a class 3 dangerous felony; disorderly conduct, a class 6 dangerous felony; and criminal trespass in the first degree, a class 6 felony. (Doc. 11-2 at 43) Petitioner was represented by the same counsel in case CR2012-156099 and case CR2012-126217. (See, e.g., Doc. 11-1 at 16; Doc. 11-2 at 63)
In case CR2012-156099, Petitioner entered into a plea agreement and pleaded guilty to aggravated assault, a class 3 dangerous felony, in exchange for dismissal of charges of disorderly conduct and criminal trespass in the first degree. (Doc. 11-2 at 61-63, 65-66) Petitioner's sentencing hearing in case CR2012-156099 was conducted together with Petitioner's sentencing hearing in case CR2012-126217 on January 15, 2014. (Doc. 11-1 at 24-26; Doc. 11-2 at 68-71) On January 15, 2014, pursuant to the stipulated sentence in the plea agreement, the Maricopa County Superior Court sentenced Petitioner in case CR2012-156099 to a term of twelve years, to be served concurrently with Petitioner's five-year sentence in case CR2012-126217 and consecutively to Petitioner's sentences in two other Maricopa County Superior Court cases. (Doc. 11-2 at 63, 69)
B. Direct Appeal and Post-Conviction Relief (“PCR”) Actions
1. Petitioner's direct appeal of case CR2012-126217
On February 5, 2014, Petitioner's trial counsel filed a timely notice of appeal of Petitioner's judgment and sentence. (Doc. 11-1 at 28-29) On appeal, Petitioner was represented by different counsel than his trial counsel. (Id. at 31) Petitioner's appointed appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), advising the court of appeals that counsel was unable to identify any non-frivolous question of law to assert on Petitioner's behalf on appeal. (Id. at 31-42) Although appellate counsel requested leave for Petitioner to file a supplemental brief in propria persona (id. at 44-46), which the court of appeals granted (id. at 48-50), Petitioner did not file a supplemental brief (id. at 53).
In a memorandum decision issued January 6, 2015, the Arizona Court of Appeals reviewed the record for fundamental error and determined that substantial evidence supported Petitioner's convictions. (Id. at 52-55) The court of appeals corrected two typographical errors in the superior court's sentencing minute entry, but otherwise affirmed Petitioner's convictions and sentences as corrected. (Id. at 55)
Petitioner did not file a petition for review with the Arizona Supreme Court. (Id. at 57) The Arizona Court of Appeals issued its mandate on February 25, 2015. (Id.)
2. Petitioner's first PCR action in case CR2012-126217
On January 21, 2015, Petitioner timely filed a pro se PCR notice in the superior court, in which he requested counsel be appointed to represent him. (Doc. 11-1 at 59-61) The superior court appointed counsel to represent Petitioner in the PCR proceedings. (Id. at 63) Petitioner's PCR counsel filed a notice of completion of review of the record, informing the court that PCR counsel found no colorable claim to raise in a PCR petition and requesting additional time for Petitioner to file a pro se PCR petition. (Id. at 66-68) The superior court granted PCR counsel's request for additional time for Petitioner to file a pro se petition (id. at 70-71) and appointed an investigator at Petitioner's request (id. at 72).
Petitioner signed and had his PCR notice notarized on January 21, 2015, but the PCR notice was not filed by the clerk of court until January 26, 2015. (Doc. 11-1 at 59, 61) Pursuant to the prison mailbox rule, this Report and Recommendation uses January 21, 2015, as the filing date of Petitioner's PCR notice. See State v. Rosario, 195 Ariz. 264, 266 (App. 1999) (applying the prison mailbox rule to state court PCR notices).
In his pro se PCR petition, Petitioner argued that police never made an attempt to locate or question an individual by the name of Michael Whitmore, the alleged registered owner of the red Infiniti in which police found Petitioner; that trial counsel should have investigated, located, and interviewed Michael Whitmore and failed to prepare an adequate defense; that the prosecutor should have located and interviewed Michael Whitmore, or considered whether the red Infiniti was driven by Michael Whitmore; and that the trial court should have ordered the state to locate and interview Michael Whitmore prior to trial. (Id. at 74-122) The state filed a response (id. at 124-36), and Petitioner filed a reply (Doc. 11-2 at 3-11).
On August 10, 2017, the superior court denied Petitioner's PCR petition, finding that Petitioner failed to establish that trial counsel was ineffective, did not present evidence to support his grounds for relief, and therefore did not state a colorable claim. (Id. at 13-15)
In August 2017, Petitioner filed a timely pro se petition for review in the Arizona Court of Appeals and argued the same grounds for relief as in the superior court, except Petitioner also argued that the failure of the prosecutor, trial counsel, the trial court, or police to locate Michael Whitmore infringed Petitioner's equal protection rights under the Fourteenth Amendment of the United States Constitution. (Id. at 17-36) On April 19, 2018, the Arizona Court of Appeals granted review but denied relief on Petitioner's PCR petition. (Id. at 38-39)
Petitioner did not file a petition for review in the Arizona Supreme Court. (Id. at 41) On June 4, 2018, the Arizona Court of Appeals issued its mandate. (Id.)
The was filed in the superior court on June 5, 2018. (Id.)
3. Petitioner's first PCR action in case CR2012-156099
On February 25, 2014, Petitioner filed a pro se PCR notice and requested appointment of PCR counsel. (Doc. 11-2 at 73-81) The pro se PCR notice listed only case CR2012-156099. (Id.) There was no mention of case CR2012-126217. (Id.)
See footnote 4, supra.
Petitioner had different appointed PCR counsel in case CR2012-156099 and in case CR2012-126217. (Doc. 11-1 at 63; Doc. 11-2 at 83-85)
On August 4, 2014, Petitioner's appointed PCR counsel filed a notice of completion of review, informing the superior court that counsel found no colorable claim to raise in the PCR proceedings and requesting additional time for Petitioner to file a pro se PCR petition. (Id. at 87-88)
Petitioner filed a pro se PCR petition, arguing that the trial court failed to give Petitioner pre-sentence incarceration credits in cases CR2012-126217 and CR2012-156099. (Id. at 93-103) After the state filed a response conceding that Petitioner was entitled to pre-sentence incarceration credit in case CR2012-126217 and CR2012-156099 (id. at 105-06), Petitioner filed a reply agreeing with the state's calculations of incarceration credit. (Doc. 11-3 at 3-4) Petitioner asked the superior court to waive the requirement that Petitioner file a separate Rule 32 action for the correction of pre-sentence incarceration credit in case CR2012-126217. (Id. at 4) On December 30, 2014, the superior court granted Petitioner's PCR petition and modified Petitioner's sentence in case CR2012-156099 to account for the corrected time served at the time of sentencing. (Id. at 6) However, the superior court ruled that it did not have jurisdiction to rule on Petitioner's PCR petition insofar as the petition would apply to case CR2012-126217 because Petitioner's appeal in that case was still pending in the Arizona Court of Appeals. (Id.) There is no documentation in the record that Petitioner petitioned for review in the Arizona Court of Appeals from the superior court's December 30, 2014, decision.
Further, the superior court's electronic docket for case CR2012-156099 does not reflect any petition for review to the Arizona Court of Appeals from the superior court's December 30, 2014, decision: http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp7caseNu mber=CR2012-156099 (last accessed on August 18, 2022).
4. Petitioner's combined PCR action
On June 4, 2018, Petitioner filed a pro se PCR notice in the superior court, stating that the notice pertained to case CR2012-156099 but arguing claims related to his unlawful flight conviction in case CR2012-126217. (Doc. 11-3 at 8-14) Petitioner recognized that his PCR notice was untimely and requested appointment of counsel. (Id.) The superior court appointed different PCR counsel than the lawyers who had represented Petitioner in Petitioner's earlier PCR proceedings. (Id. at 16) Appointed PCR counsel filed a notice of completion of review, informing the court that PCR counsel found no colorable issues to raise in a PCR petition in either case CR2012-156099 or case CR2012-126217 and requesting an extension of time for Petitioner to file a pro se PCR petition. (Id. at 20-24) The superior court granted PCR counsel's request. (Id. at 26-27)
Petitioner signed his combined PCR notice on June 4, 2018, but the PCR notice was not filed until June 8, 2018. (Doc. 11-3 at 8, 10, 14) Pursuant to the prison mailbox rule, this Report and Recommendation uses June 4, 2018, as the filing date of Petitioner's combined PCR notice. See Rosario, 195 Ariz. at 266.
In his pro se PCR petition, Petitioner asserted that his PCR petition was “of-right” and checked boxes requesting relief on several grounds, including unlawful arrest, denial of the right to competent attorney representation, newly discovered evidence, lack of trial court jurisdiction, use of prior convictions obtained through a constitutional violation, improper sentencing, unlawfully induced plea, unconstitutional suppression of evidence and use of perjured testimony, and use of evidence obtained pursuant to an unlawful arrest. (Id. at 29-55)
In response, the state argued that Petitioner's claims were precluded under Arizona Rule of Criminal Procedure 32.2, that Petitioner did not have newly discovered evidence, and that Petitioner was not entitled to an of-right petition in case CR2012-126217 since that case went to trial. (Id. at 57-78) In reply, Petitioner argued that the trial court abused its discretion by precluding information relevant to Petitioner's defense of innocence and third-party culpability; that the state presented perjured testimony; and that counsel was ineffective in failing to raise meritorious issues. (Id. at 82-118)
On July 10, 2019, the superior court ruled on Petitioner's PCR petition. (Id. at 12023) As to case CR2012-156099, the superior court summarily denied Petitioner's petition for failure to state any claim, “let alone any colorable claim[,]” related to that case. (Id. at 121) As to case CR2012-126217, the superior court determined that Petitioner raised the same issues as in Petitioner's first PCR petition, did not offer “new evidence that might have changed the outcome of the trial[,]” and did not establish that trial counsel was ineffective in failing to subpoena Michael Whitmore's testimony. (Id. at 122-23) Therefore, the superior court summarily denied the PCR petition as it related to case CR2012-126217. (Id.)
Petitioner filed a motion for reconsideration and requested permission to proceed to a “higher court 9thCircut [sic]” in August 2019. (Id. at 125-29) Petitioner also filed a “Status Review Motion w/ Evidentiary Hearing Requested” in October 2020, in which Petitioner requested status review of his August 2019 “PCR petition,” which must be construed as a reference to Petitioner's August 2019 motion given that Petitioner did not file a PCR petition in August 2019. (Id. at 131-34) On November 25, 2020, the superior court denied Petitioner's motions as untimely and lacking factual or legal support, but granted Petitioner an extension of time to file a petition for review to December 14, 2020. (Id. at 136-37) In December 2020, Petitioner filed another motion for reconsideration and requested permission to proceed to a “higher court 9th Circut [sic]”. (Id. at 139-43) On January 20, 2021, the superior court denied Petitioner's December 2020 motion for reconsideration as untimely and rejected Petitioner's arguments that his PCR proceedings should not have been assigned to the trial judge and sentencing judge in his cases. (Id. at 145)
There is no documentation in the record before the Court that Petitioner petitioned for review to the Arizona Court of Appeals of the superior court's July 10, 2019, denial of the combined PCR proceedings.
The superior court's electronic dockets for cases CR2012-126217 and CR2012-156099 do not reflect any petition for review to the Arizona Court of Appeals from the superior court's July 10, 2019, denial of the combined PCR proceedings. See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp7caseNu mber=CR2012-126217 (last accessed on August 15, 2022); http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp7caseNu mber=CR2012-156099 (last accessed on August 15, 2022).
II. PETITIONER'S HABEAS CLAIMS
Petitioner asserts four grounds for relief in his Amended Petition. (Doc. 7) While the Amended Petition references both cases CR2012-156099 and CR2012-126217 (see, e.g., Doc. 7 at 1-2), the four grounds for relief in the Amended Petition pertain only to his conviction in case CR2012-126217 for unlawful flight, wherein Petitioner went to trial. (Id. at 70-73)
In Ground 1, Petitioner argues that he was subjected to an unlawful arrest, as he was only a passenger in the car in which Petitioner was arrested, as opposed to the owner or driver of the car. (Id. at 70) In Ground 2, Petitioner argues that he received ineffective assistance of trial counsel, specifically that counsel “failed to research issues [Petitioner] raised concerning owner of car who was Mr. Whitmore” and “failed to produce DNA or fingerprints upon steering wheel of car.” (Id. at 71) In Ground 3, Petitioner argues that he was denied due process and denied a fair trial because Petitioner's requested witness was not summoned to testify. (Id. at 72) In Ground 4, Petitioner argues that the arresting officer gave perjured trial testimony. (Id. at 73) Further, Petitioner asserts that he timely filed these proceedings. (Id. at 75).
In their Limited Answer to the Amended Petition, Respondents assert that the grounds in Petitioner's Amended Petition are based on Petitioner's conviction in case CR2012-126217. (Doc. 11 at 8) Respondents argue that the Amended Petition is untimely based on the dates of the proceedings in case CR2012-126217 and that neither statutory nor equitable tolling renders Petitioner's Amended Petition timely. (Id. at 8-11) Respondents also argue that Petitioner's Grounds 1, 3, and 4 claims are procedurally defaulted without excuse and are non-cognizable in federal habeas review for failure to present any federal basis of the claims. (Id. at 12-16)
Petitioner did not file a reply, and the time to do so expired in late June 2022. (Doc. 8 at 4)
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. 2002).
A. AEDPA's One Year Limitations Period
1. Applicable law
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 January 6, 2022, the date Petitioner placed the original Petition in prison mail, as the applicable filing date for the Amended Petition. See Mayle v. Felix, 545 U.S. 644, 664 (2005).
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.
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).
2. Analysis
Because the Amended Petition claims each arise from a final judgment and sentence, and the habeas record does not present circumstances for a later start date based on 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 case CR2012-126217, Petitioner commenced a timely direct appeal of his conviction and sentence. (Doc. 11-1 at 28-29) On January 6, 2015, the court of appeals affirmed Petitioner's conviction and corrected Petitioner's sentence. (Id. at 52-55) Petitioner did not file a motion for reconsideration in the Arizona Court of Appeals or a petition for review in the Arizona Supreme Court. (Id. at 57) Thus, Petitioner's conviction and sentence in case CR2012-126217 became final on February 10, 2015, when the time to file a petition for review expired. See Ariz. R. Crim. P. 31.19(a) (2008) (providing that a petition for review must be filed within 30 days, unless a motion for reconsideration is filed); Ariz. R. Crim. P. 1.3(a) (2008) (providing that “[w]henever a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and such service is allowed and made by mail, 5 days shall be added to the prescribed period.”) AEDPA's one-year statute of limitations therefore began running on Wednesday, February 11, 2015, unless AEDPA's statute of limitations was statutorily tolled before that time by the timely and proper filing of a PCR proceeding relating to case CR2012-126217.
Respondents use an erroneous start date for the statute of limitations for case CR2012-126217 because Respondents fail to include five days for service. (Doc. 11 at 9)
AEDPA's one-year limitations period did not begin to run on February 11, 2015, because in case CR2012-126217, Petitioner filed a timely and proper first PCR notice on January 21, 2015 (Doc. 11-1 at 59-61). Respondents assert that Petitioner's first PCR proceedings statutorily tolled the limitations period until April 20, 2018, the day following the Arizona Court of Appeals' memorandum decision in such proceedings. (Doc. 11 at 10) However, the court of appeals did not issue its mandate in Petitioner's first PCR proceedings until June 4, 2018 (Doc. 11-2 at 41), which is when Petitioner's first PCR proceedings stopped pending for statutory tolling purposes. See Celaya v. Stewart, 691 F.Supp.2d 1046, 1053-54 (D. Ariz. 2010) (aff'd 497 Fed.Appx. 744 (9th Cir. 2012)) (for purposes of statutory tolling under 28 U.S.C. § 2244(d)(2), where petitioner did not seek review in the Arizona Supreme Court, the matter remained pending until the appellate PCR court issued its mandate); Wells v. Ryan, 2015 WL 9918159, at *8-9 (D. Ariz. Aug. 13, 2015) (confirming Celaya's holding that PCR proceedings remain pending until the court of appeals issues a mandate).
Yet, AEDPA's limitations period still did not start running when the mandate issued on June 4, 2018. AEDPA's limitations period did not start running when the mandate issued because on the same date the mandate issued, on June 4, 2018, Petitioner filed a combined PCR petition for case CR2012-126217 and case CR2012-156099. (Doc. 11-3 at 8-18) Respondents argue that Petitioner's combined PCR petition was not properly filed and, thus, did not trigger additional statutory tolling because Petitioner “reasserted the same claims that he had raised in his first PCR petition” in case CR2012-126217, thereby precluding Petitioner's combined PCR petition claims under Ariz. R. Crim. P. 32.4 and 32.4. (Doc. 11 at 10) However, according to the United States Supreme Court:
See footnote 10, supra.
an application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.Artuz, 531 U.S. at 8 (emphasis in original). Proper filing is “quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.” Id. at 9 (emphasis in original). Thus, any preclusion of Petitioner's claims does not lead to the conclusion that Petitioner's combined PCR petition was improperly filed. See, e.g., Snell v. Ryan, 2020 WL 4719690, at *3 (D. Ariz. June 2, 2020) (second PCR petition properly filed where claims were precluded). Accordingly, AEDPA's limitations period remained statutorily tolled through Petitioner's combined PCR proceedings.
The superior court denied Petitioner's combined PCR petition on July 10, 2019. (Doc. 11-3 at 120-23) Petitioner did not file a petition for review in the Arizona Court of Appeals within 30 days, see Ariz. R. Crim. P. 32.16, or a motion for rehearing within 15 days. See Ariz. R. Crim. P. 32.14. Hence, Petitioner's combined PCR petition ceased pending on July 10, 2019.
Petitioner's August 16, 2019, motion for reconsideration (Doc. 11-3 at 125-28), October 2020, status review motion (id. at 131-33), and December 2020, motion for reconsideration (id. at 139-42) did not toll AEDPA's limitations period, because Petitioner did not file these motions within the appropriate period following the superior court's denial of Petitioner's combined PCR petition. (Id. at 120)
During the pendency of Petitioner's first PCR proceedings in case CR2012-126217 through June 4, 2018, and during the pendency of Petitioner's combined PCR proceedings through July 10, 2019, AEDPA's one-year limitations period was tolled pursuant to 28 U.S.C. § 2244(d)(2). AEDPA's limitations period did not run between the conclusion of Petitioner's first PCR proceedings and the start of Petitioner's combined PCR proceedings, because the Arizona Court of Appeals issued its mandate in Petitioner's first PCR proceedings on June 4, 2018, the same date on which Petitioner filed his combined PCR petition. (Doc. 11-2 at 41; Doc. 11-3 at 8-18) Petitioner is entitled to statutory tolling through July 10, 2019, the date on which the superior court denied Petitioner's combined PCR petition. AEDPA's one-year statute of limitations period therefore commenced to run on July 11, 2019, and the period for Petitioner to file a habeas petition expired on July 10, 2020. 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 January 6, 2022, almost a year and a half after AEDPA's statute of limitations expired. (Doc. 1)
Respondents are correct that the Amended Petition claims for relief clearly relate to Petitioner's conviction and sentence in CR2012-126217. (Doc. 7 at 70-73) Yet, even if the Amended Petition claims were construed to refer to Petitioner's conviction and sentence in case CR2012-156099, case CR2012-156099 would not provide Petitioner a later start and end date for AEDPA's statute of limitations. The superior court granted Petitioner partial relief in Petitioner's PCR proceedings in CR2012-156099 on December 30, 2014, which concluded the proceedings. (Doc. 11-3 at 6) Thus, AEDPA's statute of limitations period expired years before Petitioner's June 2018 combined PCR proceedings and could not be revived by those or any later proceedings.
Accordingly, these habeas proceedings were untimely filed unless equitable tolling and/or the actual innocence gateway apply to render these proceedings timely.
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 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 59899 (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.'” 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”) (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, CIV 06-675-PHX-EHC (MEA), 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 his Amended Petition, Petitioner asserts that he timely filed these proceedings. (Doc. 7 at 75). Respondents raised the affirmative defense of untimeliness, arguing equitable tolling does not apply. (Doc. 11 at 8-11) Petitioner did not file a reply in support of his Amended Petition.
In his Amended Petition regarding Ground 2, Petitioner asserts that he has “not received response from Maricopa County Superior Court to prior submitted motions” and “this precluded” him “from moving forward” to raising Ground 2 in the Arizona Court of Appeals. Even if this is construed as a request for equitable tolling, the factual underpinnings of Petitioner's assertion are faulty. The record reflects that the superior court addressed Petitioner's motions. (See, e.g., Doc. 11-2 at 13-15, 83; Doc. 11-3 at 6, 16, 80, 120-23, 136-37, 145) Further, Petitioner has not shown equitable tolling of AEDPA's limitations period that expired before December 2020 by improperly requesting in December 2020 that the superior court give him permission to proceed on to the “9th Circut [ sic ][.]”
Indeed, the pendency of Petitioner's motions in superior court did not present a barrier to Petitioner filing a timely habeas action in federal court. To the contrary, Petitioner's filing with the superior court in August 2019 demonstrates that no extraordinary circumstances prevented Petitioner from filing a timely habeas action during AEDPA's limitations period. (See Doc. 11-3 at 125-28, 131-33, 139-42)
Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented Petitioner 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.
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, 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)).
In his habeas claims, Petitioner asserts that his conviction was based on insufficient testimony and that Petitioner was only a passenger in the car during the events that led to Petitioner's conviction. (Doc. 7 at 70-73) Petitioner has not provided any new reliable evidence of actual innocence as required by the applicable case law. Petitioner attached to his Amended Petition: Petitioner's reply in support of his combined PCR petition (Doc. 7 at 5-22); Petitioner's motion for reconsideration of his combined PCR petition in superior court (id. at 24-28); Petitioners “Status Review Motion” in support of the superior court's rehearing of his combined PCR petition (id. at 31-34); Petitioner's combined PCR petition (id. at 36-39); the state's response to Petitioner's combined PCR petition (id. at 41-62); and a “Civil Rights Violation Complaint” sent to the United States Department of Justice Civil Rights Division in October 2021 (id. at 65-69). None of Petitioner's materials constitute “new reliable evidence[,]” Schlup, 513 U.S. at 324, that would likely prevent a jury from convicting Petitioner. See McQuiggin, 569 U.S. at 399. Petitioner does not explain how his attachments are evidence that more likely than not would have prevented a jury from convicting him, nor is such apparent from review of Petitioner's attachments. Petitioner has not met his burden to establish actual innocence. Thus, the actual innocence gateway provides Petitioner no relief for the untimely filing of these proceedings.
D. These Proceedings Are Untimely Under AEDPA
Under applicable law, the January 6, 2022, filing of this action was untimely, rendering the Amended Petition untimely filed. Neither equitable tolling nor the actual innocence gateway renders this action timely filed. Therefore, these untimely proceedings should be dismissed with prejudice and terminated.
IV. CONCLUSION
Based on the above analysis, the January 6, 2022, filing of this action was untimely, and neither statutory tolling, equitable tolling, nor the actual innocence gateway applies to render this matter timely filed. Because the January 6, 2022, filing of this action was untimely, this Report and Recommendation does not reach Respondents' argument that Grounds 1, 3, and 4 in the Amended Petition (Doc. 7) are procedurally defaulted without excuse and are non-cognizable in federal habeas review for failure to present any federal basis of the claims.
Because these proceedings were untimely filed, this Report and Recommendation did not reach an issue not raised by Respondents: whether the Amended Petition should be dismissed for violation of Rule 2(e) of the Rules Governing § 2254 Cases (“A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court.”).
Therefore, it is recommended that the Amended Petition (Doc. 7) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter. Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in the procedural ruling. Accordingly, to the extent the District Judge adopts this Report and Recommendation, a certificate of appealability should be denied. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) 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 because dismissal of the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) is justified by a plain procedural bar and reasonable jurists 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) 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.