Opinion
CV-21-00523-TUC-RM-BGM
03-28-2023
Charles Allen Cole, III, Petitioner, v. David Shinn, et al., Respondent.
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Petitioner Charles Allen Cole, III's, (“Petitioner” or “Cole”) 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.) Respondent filed a Limited Answer (“Answer”) (Doc. 19) as permitted by this Court's Order (Doc. 10), and Petitioner replied (“Reply”) (Doc. 20). The matter is ripe for adjudication. Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. (Doc. 9, 10.) The Magistrate Judge recommends that the District Court dismiss the Petition (Doc. 1).
The Court's Order (Doc. 10) provides, in pertinent part, “Respondents may file an answer that (a) is limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative defenses as to some claims and discusses the merits of others; or (c) discusses the merits of all claims.” (Doc. 10 at 3.)
I.BACKGROUND
A. Summary of Habeas Claims Cole's Petition (Doc. 1) asserts six claims, as follows:
Ground 1A: Sixth Amendment ineffective assistance of counsel at sentencing: a) failure to present mitigation. Cole alleges his plea counsel's performance at sentencing was ineffective because he “fail[ed] to present mitigation” evidence. (Doc. 1 at 11.) Specifically, he argues counsel failed to conduct a mitigation investigation and obtain an expert-authored mitigation report. See id. He alleges that, had counsel done those that his “entire childhood and family was [sic] plagued with drug abuse, violence and mental illness”; one of his victims “was closer to [him] and [his] family since [Cole] was born” than was portrayed; and it was the victim who introduced Cole to drugs and negatively impacted Cole's life. Id. at 11. Cole alleges that such circumstances would have led the sentencing judge to find that the mitigators outweighed the aggravators and would have resulted in lesser sentences. Id. at 2.
Ground 1B: Sixth Amendment ineffective assistance of counsel at sentencing: b) failure to object to religious content. Cole alleges plea counsel “never objected to all the religious content[.]” (Doc. 1 at 2.) He believes the absence of an objection was not a strategic choice. Id. He theorizes counsel had “missed” the religious nature of the family and friends' statements before the sentencing hearing, and so decided instead to make a spontaneous religious-based argument at the hearing. Id. Cole also appears to believe that the pleas for harsh punishment, made by the murder victim's family and friends, affected his sentence for the aggravated-assault conviction even though the assault victim was not the murder victim. Id.
Ground 2: Fourteenth Amendment Due Process: Religious content at sentencing. Cole alleges that the presentation of “religious content at sentencing” violated his due process right and the “separation of church and state,” and it was improper for the sentencing judge to consider it. (Doc. 1 at 12.) In support of that argument, Cole asserts that the religious statements “went beyond explaining what the loss meant to the community” and “many of the references were actually irrelevant to the points of what the writers were trying to convey”; and one of the letters in particular, from the primary victim's Rabbi father, was “so pervasive it would have been hard for any judge to discount.” Id. at 12.
Ground 3: Sixth Amendment ineffective assistance of counsel: failure to communicate plea offer. Cole alleges plea counsel allegedly failed to inform him of a pretrial plea offer that would have carried a lesser maximum sentence than the sentencing range he ultimately got as part of a plea agreement he entered into during trial. (Doc. 1 at 4, 13.) He claims he did not learn about the pretrial plea offer until after sentencing. Id. at 13.
Ground 4A: Sixth Amendment ineffective assistance of counsel: failure to discover photograph. Cole claims plea counsel “fail[ed] to discover [a] crucial photograph” from the aggravated-assault case, until the second day of his murder trial. (Doc. 1 at 14.) He states, once the photograph was brought to counsel's attention, “all our leverage for bargaining” for a better plea agreement with respect to the murder charge “went out the window” and was allegedly advised by his lawyers that the photograph had decreased their odds for winning at trial from 80% to 30%. Id. at 6, 14.
Ground 4B: Prosecutorial Misconduct: Almost as an afterthought, Cole appears to allege that the prosecutor committed misconduct when she did not request concurrent sentencing for the murder and aggravated-assault convictions, despite supposedly promising to do so when she made the plea offer for both charges. Id. at 6.
The Court finds the Petition is time-barred because Cole filed it nearly two months late; equitable tolling does not apply; and Grounds 2, 3, and 4B, are procedurally defaulted without excuse.
II.FACTUAL AND PROCEDURAL BACKGROUND
A. Indictments and Guilty Pleas
In September 2015, the State of Arizona indicted Cole in the Pima County Superior Court, in CR20153837-001, on seven counts, including four counts of aggravated assault with a deadly weapon (four different victims). (Doc. 19-1 at 4-5, Exh. A.) Those crimes involved a “drug confrontation.” (Doc. 19-1 at 260-261, Exh. W, at 11-12.) In November 2015, the State indicted Cole in CR20154511-001 on four counts, including first-degree murder for the murder of Michael Oleisky. (Doc. 19-1 at 7, Exh. B.) Cole had a “drug-related relationship” with Oleisky and had shot Oleisky three times. (Doc. 19-1 at 259-260, Exh. W at 10-11; Doc. 19-1 at 272, Exh. X at 7.)
Cole pled not-guilty to all his pending charges at arraignment. (Doc. 19-1 at 9, 11, Exhs. C, D.) The superior court consolidated both of Cole's cases until trial. (Doc. 19-1 at 13-14, Exh. E; Doc. 19-1 at 18-21, Exh. G.) In July 2016, “the prosecutors originally assigned to the case offered a plea agreement to resolve both cases. The offer was to Second Degree Murder with a range of 16-25 years, and to one count of Aggravated Assault for the September 14th incident with a range of 5 to 15 years.” (Doc. 19-1 at 191, Exh. Q at 4.)
On January 9, 2019, the second day of his murder trial, Cole accepted the State's plea offer, which offered the same terms as had been originally offered in July 2016. (Doc. 19-1 at 38, 45, Exhs. H, I.) The court accepted the plea agreement. (Doc. 19-1 at 45-46, Exh. I.)
Recalling earlier plea discussions, Green avowed that “Although there were discussions initiated by the defense about a better plea offer, those discussions did not pan out.” (Doc. 19-1 at 191, Exh. Q at 4.) She recalled one discussion that occurred on December 7, 2018, by email. Id. Green had emailed plea counsel and wrote in part: “I would be willing to take second degree murder to the panel; 16 to 25 and try the robbery separately. The panel already [sic] approved that already, but it was wrapped up with the robbery.” (Doc. 19-1 at 179, Exh. P at 20.) Regarding the December 7, 2018 email, Green explained that “[a]lthough that email raised the possibility of resolving the homicide case by plea[,]” and “trying the armed robbery case”; the “possibility was mentioned, it was never offered and never authorized.” (Doc. 19-1 at 191, Exh. Q at 4; Doc. 19-1 at 179, Exh. P at 20.)
B. Sentencing
In preparation for sentencing, Cole's counsel filed a sentencing memorandum and attached letters written in support of Cole, as well as certificates of completion for coursework Cole had completed while incarcerated in the Pima County Jail. (Doc. 19-1 at 95-141, Exh. K.) Counsel later filed a supplement to its sentencing memorandum in order to counter the victim impact statements that he had received from the State. (Doc. 19-1 at 142-145, Exh. L at 1-3.) In the supplement, counsel argued “that a sentence of sixteen years in a homicide case [sic] a longer sentence that in numerous other recent Pima County murder cases” and “that the presumptive sentence in a second-degree murder case is in no way unusual and far harsher than in many cases.” (Doc. 19-1 at 143-144, Exh. L at 1-2.) The court informed the parties that it reviewed “every single line” of “everything” they had filed for sentencing. (Doc. 19-1 at 269-270, 297, Exh. X at 4-5, 32.)
The State provided approximately 21 victim's impact statements for the court's consideration at sentencing. (Doc. 19-1 at 47-94, Exh. J.) The letters were written by the murder victim's family and friends. See id.
At the sentencing hearing itself, the murder victim's father and brother addressed the court, and both requested the maximum sentence. (Doc. 19-1 at 276, 278, 282-83, Exh. X at 11, 13, 17-18.) The father's address was relatively brief and did not mention religion. (Doc. 19-1 at 276-79, Exh. X at 11-13.) The brother's address was longer, equivalent to five transcript pages, and he referenced the family's Jewish religion; however, his religious references constituted about only half a page of his five-page address. (Doc. 19-1 at 278-283, Exh. X at 13-18.) The brother's religious references were as follows:
[T]hat afternoon at sundown in Tucson, Arizona, and around the world Rosh Hashanah, the Jewish New Year was about to begin.
Rosh Hashanah was always one of my favorite Jewish holidays. Sadly, that was about to change.
[M.O.] and I grew up with a father who was and still is a wonderful rabbi and a mother who is a social worker. I just can't imagine that many sons of rabbis are murdered in cold blood here in the United States on the same day as the Jewish New Year is about to begin.
Two days later after I arrived in Tucson, I did what I have always done on the second day of Rosh Hashanah, the Jewish New Year. I went to services. I wanted to ask God a simple question. Why? To this day, I still don't have an answer.(Doc. 19-1 at 279-80, Exh. X at 14-15.)
Plea counsel responded in his argument for mitigation that families of murder victims “have different emotions” and “needs,” but “determining a sentence in a criminal case” based on religion made him “extremely uncomfortable, particularly” when the victim's family includes an “extremely charismatic rabbi of a local synagogue.” (Doc. 19-1 at 285-86, Exh. X. at 20-21.) Counsel continued:
However, I need to address it because virtually every letter sent to you in the victim impact panel statements, virtually everyone mentioned the rabbi's status, mentioned religion, quoted various… Talmudic sayings, and I think it's important to address that, even though … religion makes me uncomfortable in a courtroom.
But let me clarify how I'm going to address it, because when we decided who was going to address you and … the family, [my co- counsel] said, … you're Jewish, so you're doing to do it. . . . .
Not only am I Jewish, but I descended from rabbis. I … have a long history of rabbis in my family.
… I completely identify as a Jew ….
One of the things … that struck me in the [victims'] letters … was their perception of Judaism and how it looks at forgiveness and how it looks at crime.
And I'm going to say one thing about that. Then I'll get off the subject of religion …
There was a medieval Torah scholar named Maimondes who discussed forgiveness, and his view of forgiveness was somewhat different than that which was in the letters to you.
Maimondes said about forgiveness, we should try to forgive those who genuinely recognize their crimes, who seek to make amends and who apologize. …
It's not simple for anybody, but the Jews have a lot of ways of looking at forgiveness and charity and mercy and all the other things that we're here talking about. . . . .
The aggravating factor of harm to the victim's family and the emotional harm to them is present in every murder case. It's no different because the entire congregation is here. It's - the Oleisky family is still hurt, and it's harmful to them. But the mitigating factors in this case far, far outweigh the aggravating, and I'd like to discuss those real briefly. …(Doc. 19-1 at 285-87, Exh. X at 20-22.)
Plea counsel subsequently argued that Cole was young; “horribly addicted to drugs”; had already made efforts to rehabilitate himself by attending A.A. meetings; had “an exceptional amount of family and friends” who support him; was remorseful; had a “real lack of any juvenile history”; and there was disparate treatment between Cole and his “equally culpable” co-defendant who had not been charged with a crime. (Doc. 19-1 at 291-94, Exh. X at 26-29.) Counsel ended his argument by circling back to religion. (Doc. 19-1 at 295, Exh. X at 30.) He discussed a 1924 murder case involving Jewish defendants and a Jewish victim, where the plea counsel had argued, against the public sentiment at the time, that “mercy … is the highest attribute of man.” Id. at 31. Cole then briefly addressed the court himself. (Doc. 19-1 at 296-97, Exh. X at 31-32.)
Considering everything submitted, the court found seven mitigators: Cole's age (22); drug addiction; difficult childhood, including his father's death from a heroin-overdose; “supportive, caring family”; showing of remorse; lack of a prior juvenile criminal history; and efforts at rehabilitation while incarcerated (he “completed many courses”). (Doc. 19-1 at 298-99, Exh. X at 33-34.)
As for aggravation, the State argued that the murder had involved a deadly weapon and accomplices and impacted the family, while the aggravated assault had physically harmed the victim. (Doc. 19-1 at 274-76, Exh. X at 9-11.) The State consequently requested the maximum sentence of 25 years for the murder, and somewhere between the presumptive and the maximum for the aggravated assault. (Doc. 19-1 at 271, 273, Exh. X at 6, 8.)
The court found two aggravators for the aggravated assault-presence of an accomplice and the victim's suffering of physical harm-and two aggravators for the murder-presence of an accomplices and the emotional harm suffered by the murder victim's family. (Doc. 19-1 at 299-300, Exh. X at 34-35.) The court found the aggravators, “particular[ly]” the family's emotional harm, had outweighed the mitigators for the murder, but found “that the mitigators and the aggravators balance[d] out” for the aggravated assault. (Doc. 19-1 at 299-300, Exh. X at 34-35.) Consequently, in March 2019, the court imposed a slightly aggravated sentence of 20 years for the murder conviction, and the presumptive 7.5-year sentence for the aggravated-assault conviction, to run consecutively to each other. (Doc. 19-1 at 146-150, Exh. M.)
C. Post-conviction Review
Cole filed notices seeking post-conviction review (“PCR”) in both his cases on April 30, 2019. (Doc. 19-1 at 151-154, 155-158, Exhs. N, O.) His single petition for review asserted three ineffective assistance of counsel (IAC) claims. (Doc. 19-1 at 160-186, Exh. P.) He alleged plea counsel was ineffective by failing to:
PCR claim 1: IAC for failure to fully develop mitigation evidence and arguments - develop more mitigation evidence, such as producing an expert-prepared mitigation report, social history investigation, id. at 6-11; PCR claim 2: IAC for failure to communicate a plea offer - communicate an alleged plea offer made by email before trial had started, id. at 11-13; and PCR claim 3: IAC for failure to timely identify adverse evidence - realize the State's intended use of a photo, depicting a gun case lying on Cole's bed, id. at 13-15.See also Doc. 19-1 at 208-213, Exh. S. Cole attached a mitigation report to support his petition.
According to Respondent's List of Exhibits, Doc. 19-1 at 2 n.2, “Respondents omit the PCR petition's “Exhibit E,” which contains (1) the expert-authored mitigation report that Cole mentions in Ground 1A, and (2) copies of letters submitted on Cole's behalf. Respondents submit that the mitigation repot is broad in scope and allegedly discloses sensitive information about persons other than Cole. The report was also filed under seal in Pima County Superior Court. Given Respondents are currently filing a limited answer, they will provide a copy of the mitigation report if the Court rejects its procedural defenses, thereby rendering the mitigation report necessary, or if the Court otherwise orders that the report be produced[.]”
Supplemental PCR claim 4: IAC for failure to object to religious references at sentencing
In his PCR reply, Cole sought to supplement his PCR petition with law regarding the prohibition of religion in legal arguments. (Doc. 19-1 at 200 n.1, Exh. R at 4 & n.1.) The PCR court construed that supplemental authority as a fourth IAC claim for plea counsel's alleged failure to object to the victims' religious references at sentencing (PCR claim 4). (Doc. 19-1 at 211, Exh. S at 4.) The Pima County Superior Court rejected the four IAC claims on their merits and dismissed the PCR petition on April 15, 2020. (Doc. 19-1 at 207-213, Exh. S at 3-6.)
D. Petition for Review
Cole's Petition for Review to the Arizona Court of Appeals, Division Two, challenged the superior court's ruling regarding PCR claims 1, 3, and 4 only, (Doc. 19-1 at 224-229, Exh. T at 9-14); and asserted a new claim alleging a due-process violation for the religious references made at sentencing (Doc. 19-1 at 221-224, Exh. T at 6-9). The Arizona Court of Appeals granted review but denied relief on September 16, 2020. (Doc. 19-1 at 237-244, Exh. U.) Cole did not seek reconsideration or further review, and a mandate was filed, almost six months later, on March 12, 2021. (Doc. 19-1 at 245-46, Exh. V.)
III.COLE'S PETITION IS UNTIMELY UNDER AEDPA
A. Cole filed the habeas petition approximately two months late
Cole's habeas petition was filed almost two months too late. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs habeas petitions filed after April 24, 1996. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). Whether a petition is time-barred by the statute of limitations is a threshold issue that must be resolved before considering other procedural issues or the merits of an individual claim. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002).
With limited exceptions, AEDPA imposes a 1-year limitation period on state prisoners filing habeas corpus petitions in federal court. 28 U.S.C. § 2244(d)(1). The limitations period runs from the latest of-- “the date on which the 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). Although not a conventional direct appeal, Arizona's Rule 33 proceeding, available to criminal defendants who plead guilty or no contest, is a form of direct review for purpose of determining the statute of limitations under § 2244(d)(1)(A). Summers v. Schriro, 481 F.3d 710, 716-17 (9th Cir. 2007) (discussing former Arizona Rule 32, now Rule 33). The 1-year limitations period is tolled for the time-period “during which a properly filed application for State post-conviction or other collateral review … is pending.” 28 U.S.C. § 2244(d)(2).
Here, the appellate court issued its decision on September 16, 2020, affirming the PCR court's ruling that dismissed the PCR petition, and Cole did not seek review in the Arizona Supreme Court. His convictions consequently became final on October 16, 2020, when his time for seeking review in the supreme court expired. See Ariz. R. Crim. P. 31.21(b)(2)(A) (“A party must file a petition for review no later than 30 days after the Court of Appeals enters its decision ….”); cf. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (conviction becomes final when time for pursuing direct review expires); Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007) (Arizona post-conviction relief proceedings ceased on the date that the Arizona trial court ruled on the action); Welch v. Carey, 350 F.3d 1079, 1080-83 (9th Cir. 2003) (state habeas proceeding was not “pending” for statutory tolling when petitioner “made no attempt to seek relief in a higher court”). Therefore, the AEDPA's limitations period ran from October 17, 2020 to October 17, 2021. Because Cole did not file his habeas petition until December 13, 2021, his petition was approximately two months late.
Although Celaya v. Stewart, 691 F.Supp.2d 1046 (D. Ariz. 2010), suggests Cole's PCR proceeding did not conclude until March 12, 2021, when the mandate in the PCR proceeding was filed, this is incorrect. The court in Celaya largely relied on former Arizona Rule of Criminal Procedure 31.23's provision governing mandates, which has no applicability to post-conviction proceedings. 691 F.Supp.2d at 1054. Rule 31 concerns direct appeals, not post-conviction relief proceedings, and the language regarding mandates in the former Rule 31.23 (currently Rule 31.22) is not incorporated in Rules 32 and 33.2F.Absent a specific rule, “it is the decision of the state appellate court, rather than the ministerial act of entry of the mandate, that signals the conclusion of review.” White v. Klitzkie, 281 F.3d 920, 923 n.4 (9th Cir. 2002); see also Wetton v. Clarke, 258 Fed.Appx. 134, 135 (9th Cir. 2007) (holding that “the decision of the state court, not the entry of the mandate, ends the pendency of state court proceedings for the purposes of 28 U.S.C. § 2244(d)(2)” and noting that while California once had a rule indicating that cases are not final until 30 days after filing, Washington, Guam, and Arizona have no such rule). The Celaya court's error was both that it identified the wrong state procedural rule (Rule 31 instead of former Rule 32) and that it failed to apply the rule under the correct standard. See Carey v. Saffold, 536 U.S. 214 (2012). No rule requires the appellate court to issue a mandate after the conclusion of post-conviction proceedings.
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new rule 32) or had pled guilty or no contest (new Rule 33). R-19-0012 Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 33 thus encompasses the rules applicable to a pleading defendant's right to seek post-conviction relief. See Ariz. R. Crim. P. 17.1(e), 33.1; see also Pet. to Amend, at 4. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Order No. R-19-0012.
Celaya also relied on Arizona case law holding that appellate proceedings concluded with the filing of a mandate. 691 F.Supp.2d at 1074. None of the decisions cited, however, addressed this specific issue; rather, they involved the finality of convictions under Rule 31, or deadlines to file a notice of PCR under Rule 32. See, e.g., State v. Sepulveda, 32 P.3d 1085, 1086 & n.2 (Ariz. App. 2001) (citing Rule 31 and concluding that convictions are not final until after issuance of the mandate and expiration of time seeking certiorari in the United States Supreme Court); State v. Jones, 897 P.2d 734, 735 (Ariz. App. 1995) (noting that mandate triggers time period to file Rule 32 notice). Accordingly, “the general rule spoused in White applies, and the relevant trigger is the date of the decision of the Arizona Court of Appeals, and not the date of issuance of the mandate.” Smith v. Schriro, No. CV 99-00168-PHX-NVW (JRI), 2007 WL 779695, at *18 (D. Ariz. Mar. 13, 2007).
B. A federal habeas petitioner's one year may be extended by statutory tolling and/or equitable tolling.
1. Statutory tolling
The AEDPA provides for 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). Generally, under Arizona Rules of Criminal Procedure (Ariz.R.Crim.P.), Rule 33.4(b)(3)(A) Claims Under Rule 33.1(a), a defendant must file the notice for a claim under Rule 33.1(a) within 90 days after the oral pronouncement of Sentence; and (B) Claims Under Rules 33.1(b) through (h), a defendant must file the notice for a claim under Rules 33.1(b) through (h) within a reasonable time after discovering the basis for the claim. Ariz.R.Crim.P., Rule 33.4. Therefore, Petitioner's timely Petition for Post-Conviction Relief filed under Rule 33 statutorily tolled the 1-year limitations period until “the date on which the judgment became final by the conclusion of direct review” under 28 U.S.C. Sec. 2244(d)(1)(A). This statutory tolling provision calculates to later than the accompanying provision for “expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Therefore, calculation of the 1-year statutory limitation under AEDPA begins 30 days after entry of the Court of Appeals decision on Petitioner's appeal of the superior court decision denying Petitioner's Rule 33 Petition for Post-Conviction Relief. The Court of Appeals entered its decision on September 16, 2020. (Doc. 19-1 at 237-244, Exh. U.) And, because no Motion for Reconsideration (within 15 days after the appellate court enters its decision) or Petition for Review (within 30 days after entry of the Court of Appeals' decision) was filed by Petitioner, calculation of 30 days from September 16, 2020, falls on October 16, 2020. See Arizona Rules of Civil Appellate Procedure, Rules 22 and 23.
2. Equitable tolling
Cole's claims for equitable tolling are unavailing. The AEDPA limitations period may be subject to equitable tolling in appropriate circumstances. Holland v. Florida, 560 U.S. 645-46 (2010); Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017). Courts are clear that “[e]quitable tolling is justified in few cases,” and “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). For equitable tolling to apply, a petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way'” to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). “The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and quotations omitted); see also Grant, 862 F.3d at 918. The “extraordinary circumstance” must result from an external force rather than a petitioner's lack of diligence, Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and the petitioner must establish a causal connection between the extraordinary circumstance and his failure to file a timely petition, Bryant v. Ariz. Att'y Gen., 499 F.3d 1056, 1060-61 (9th Cir. 2007).
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 quotation marks and citations omitted); see also 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.”); 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”) (internal quotation marks, citations and emphasis omitted).
Cole asserts that, between November 2020 and January 2021, he did not have access to the law library due to a Covid-19-related prison lockdown, and he himself “tested positive for covid.” (Doc. 1 at 16-17.) He alleges he consequently “physically couldn't put [his] hands on the papers and law [he] needed to calculate/learn of the 1 year deadline,” adding there was even confusion about the filing deadline after the lockdown had ended. (Doc. 1 at 17.) In any event, Cole admits that he did not begin working on his petition until “summer 2021.” Id.
Contrary to Cole's contentions, those circumstances do not show he pursued his rights reasonably diligently so as to qualify for equitably tolling.
First, Cole's ignorance of the law regarding the 1-year deadline does not trigger equitable tolling. See Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir. 2013) (“The fact that a petitioner is proceeding pro se does not insulate him from the ‘reasonable diligence' inquiry and his lack of legal knowledge or legal training does not alone justify equitable tolling.”); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009) (“[A] pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling.”); 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.”).
Second, a prison lockdown and lack of law-library access do not necessarily trigger equitable tolling. See Booker v. Busby, No. ED CV 11-0376-MMM SP, 2011 WL 5966723, at *4 (C.D. Cal. Oct. 4, 2011) (“[C]ourts routinely recognize that prison lockdowns … and lack of law library access do not generally constitute extraordinary circumstances that warrant the granting of equitable tolling.”); Corrigan v. Barbery, 371 F.Supp.2d 325, 330 (W.D.N.Y. 2005) (“In general, the difficulties attendant on prison life, such as … solitary confinement, lockdowns, restricted access to the law library, and an inability to secure court documents, do not by themselves qualify as extraordinary circumstances.”); Lindo v. Lefever, 193 F.Supp.2d 659, 663 (E.D.N.Y. 2002) (same).
Additionally, Cole's positive Covid-19 test result does not, in of itself, constitute an extraordinary circumstance. Cole provides no information about when he was sick, for how long, and what symptoms he experienced. (Doc. 1 at 16-17.) Nor does he explain how the sickness prevented him from timely filing his petition. Without such pertinent information, it may be possible that Cole was asymptomatic or had experienced only mild symptoms that would not have impacted his ability to timely file his habeas petition. In short, the fact of a positive test result by itself fails to trigger equitable tolling. See Dominicus v. Burton, No. CV 21-2797-VBF (JEM), 2021 WL 4394593, at *4 (C.D. Cal. July 2, 2021) (finding “Petitioner's allegations regarding his COVID-19 diagnosis” inadequate to establish equitable tolling for additional time because the allegations were “wholly conclusory, [and] unsubstantiated”); United States v. Sayetsitty, Nos. CR 94-243 PCT RCB & CIV 05-1580 PCT RCB (JI), 2006 WL 1722300, at *9 (D. Ariz. Apr. 17, 2006 & June 19, 2006) (“Movant asserts that he has contracted a virus in the prison, resulting in various symptoms. However, Movant does not assert how these symptoms commenced, when they terminated, or how they kept him from filing a timely motion. Movant fails to make out a claim for equitable tolling on this issue.”).
Finally, even if any of the circumstances above constitutes an extraordinary circumstance that prevented Cole from timely filing, Cole still has not shown that he pursued his rights reasonably diligently. The record, on the other hand, suggests otherwise. The appellate court issued its decision on September 16, 2020, giving Cole adequate time before the prison lockdown began in November 2020 to research and contemplate his next steps. Indeed, if Cole had wanted additional review in state court, he would have had to file a petition with the supreme court within that period of time. Given the supreme court's filing deadline for a petition for review was 30 days, Ariz. R. Crim. P. 31.21(b)(2)(A), Cole should have known that the time for filing any other available appeal would be similarly limited. Plus, once the lockdown ended in January 2021, Cole still delayed working on his habeas petition for approximately five months, waiting until summer 2021 to begin working on it. (Doc. 1 at 17.)
For these reasons, equitable tolling does not apply, rendering Cole's habeas petition untimely and barred as a matter of law under AEDPA.
IV.CLAIMS 2, 3, AND 4B, ARE PROCEDURALLY DEFAULTED BECAUSE COLE DID NOT FAIRLY AND COMPLETELY PRESENT THEM IN STATE COURT
A. Applicable Legal Principles
A federal court may only consider a petitioner's application for a writ of habeas corpus if “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). Proper exhaustion requires a petitioner to fairly present his federal claims to the trial level and to “invok[e] one complete round of the State's established appellate review process,” presenting the same federal claim to each court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Wooten, 540 F.3d at 1025 (“The rule of exhaustion requires that a habeas petitioner ‘fairly present' his federal claims to each appropriate state court.”). In Arizona, a prisoner does not exhaust a claim for federal review in a non-capital case unless he has presented it to the Arizona Court of Appeals. See Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005) (citing Swoopes v. Sublett, 196 F.3d 1008, 1010-11 (9th Cir. 1999)).
A claim is only “fairly present[ed]” when a petitioner “clearly state[s] the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”). “[T]he petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is ‘self-evident,' … or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (internal citations omitted; emphasis added), modified by 247 F.3d 904 (9th Cir. 2000); see also Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005) (“[P]etitioners must plead their claims with considerable specificity before the state courts in order to satisfy the exhaustion requirement.”).
It is not enough, for example, that “all the facts necessary to support the federal claim were before the state courts … or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Gray v. Netherland, 518 U.S. 153, 163 (1996); see also Castillo, 399 F.3d at 1002-03 (9th Cir. 2005) (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Moreover, a petitioner does not achieve “fair presentation” of a claim if he presents the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). For example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentation. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
A corollary to the exhaustion requirement, the “procedural default doctrine”- which limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court-“has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004); see also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”).
There are two types of procedural bars, “express and implied.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
First, a claim is technically exhausted, but procedurally defaulted, when a petitioner attempted to raise it in state court and the state court expressly applied a procedural bar resting on an independent and adequate state law ground to avoid considering the merits of the claim. See Nunnemaker, 501 U.S. at 802-05; see also Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (stating procedural default “applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements”) (internal quotation omitted). In determining whether the state courts have imposed a procedural bar, this Court reviews the “last reasoned opinion” of the state courts. Nunnemaker, 501 U.S. at 803; Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir. 2001). Even if a state court alternatively addresses the merits of the federal claim after applying a procedural bar, the claim is still barred from federal review. Comer v. Schriro, 480 F.3d 960, 964 n.6 (9th Cir. 2007) (citing Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)).
Second, a claim is also technically exhausted, but implicitly procedurally defaulted, when a petitioner has not raised it in state court, but a return to state court to exhaust it would be futile in light of state procedural rules. See Boerckel, 526 U.S. at 848 (finding claims procedurally defaulted because habeas petitioner was time-barred from presenting his claims in state court); Coleman, 501 U.S. at 735 n.1 (noting that claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”); Hurles v. Ryan, 752 F.3d 768, 779-80 (9th Cir. 2014) (“The procedural default rule barring consideration of federal claim applies if it is clear that the state court would hold the claim procedurally barred.”) (internal quotation and alterations omitted).
In Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit into a narrow category of claims for which a successive PCR petition is permitted. See Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b), 33.1(b)-(h), & 33.2(b)(1) (successive petitions for post-conviction relief are limited to claims of: court lacked subject matter jurisdiction to render judgment or impose sentence; sentence, as imposed, not authorized by law or plea agreement; custody continues or will continue beyond sentence's expiration; newly-discovered material facts; defendant not at fault for failure to file a timely PCR notice; significant change in the law, retroactively applicable, would probably overturn conviction or sentence; actual innocence); Ariz. R. Crim. P. 33.2(b)(2) (additional exception for pleading defendants: a timely successive petition for post-conviction relief is permitted to claim counsel from first PCR proceeding was ineffective); Spreitz v. Ryan, 617 F.Supp.2d 887, 899-900 (D. Ariz. 2009) (describing Arizona's preclusion rule).
Supra, note 3.
Besides preclusion, Arizona has a time bar requiring a PCR notice in a noncapital case to be filed either “within 90 days after the oral pronouncement of sentence” (all defendants) or “within 30 days after the issuance of the mandate in the direct appeal, whichever is later” (non-pleading defendants only). Ariz. R. Crim. P. 32.4(b)(3)(A); Ariz. R. Crim. P. 33.4(b)(3)(A); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness bar under former Rule 32.4(a) as a basis for dismissing an Arizona petition for post-conviction relief, distinct from preclusion under former Rule 32.2(a)); State v. Lopez, 323 P.3d 1164, 1165-66, ¶¶ 5-9 (Ariz. App. 2014) (discussing differences between the time-bar rule, former Rule 32.4(a), and the waiver rule, Rule 32.2(a)(3)). As with the preclusion bar, an untimely PCR notice is only permitted for a narrow category of claims-the same narrow category of claims that are exempted from the preclusion bar. See Ariz. R. Crim. P. 32.1(b)-(h), 32.4(b)(3)(B), 33.1(b)-(h), 33.4(b)(3)(B).
If a claim does not fall within one of the narrow exceptions or is filed outside the time limits, the PCR notice is subject to summary dismissal. See, e.g., State v. Diaz, 269 P.3d 717, 719-21, ¶¶ 5-13 (Ariz. App. 2012); State v. Rosario, 987 P.2d 226, 228, ¶ 7 (Ariz. App. 1999); State v. Jones, 897 P.2d 734, 735-36 (Ariz. App. 1995).
Arizona's preclusion rules (Rules 32.2 and 33.2) and time-bar rules (Rules 32.4 and 33.4) are both “independent” and “adequate,” either when specifically applied to a claim by an Arizona court, or when precluding a return to state court to exhaust a claim. Therefore, the preclusion and time-bar rules procedurally bar subsequent review of the merits of that claim by a federal habeas court. See, e.g., Stewart v. Smith, 536 U.S. 856, 860-61 (2002) (finding determinations made under Arizona's procedural default rule are “independent” of federal law); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (finding unexhausted claims were procedurally defaulted because petitioner was “now time-barred under Arizona law from going back to state court”); Ortiz v. Stewart, 149 F.3d 923, 931- 32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” former Rule 32); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (rejecting assertion that Arizona courts' application of procedural default rules had been “unpredictable and irregular”).
A state procedural default rule is “independent” if it does “not depend upon a federal constitutional ruling on the merits.” Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (internal quotation omitted).
Former Rule 32 was deemed independent and adequate, supra, and new Rule 33 embodies former Rule 32, to the extent it applied to pleading defendants. See Pet. to Amend, at 4-5; supra, note 3.
A federal court may review the merits of a procedurally defaulted habeas claim only if the petitioner alleges and proves either “cause and prejudice” or a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (“We therefore require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim.”) (emphasis in original). The “cause and prejudice” test is “conjunctive,” requiring a petitioner to show both cause and prejudice to excuse a default. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982). To establish “cause,” a petitioner must demonstrate that “some objective factor external to the defense impeded [petitioner]'s efforts to comply with the State's procedural rules.” Coleman, 501 U.S. at 753 (internal quotation omitted). And to show “prejudice,” a petitioner must demonstrate that the alleged constitutional violation worked to the prisoner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original); see also Stokley v. Ryan, 705 F.3d 401, 403 (9th Cir. 2012); White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989).
To prove a “fundamental miscarriage of justice,” a defendant must establish that, in light of new evidence, “it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S. 298, 327 (1995); see also McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (stressing that the actual innocence standard articulated in Schlup is “demanding”); House v. Bell, 547 U.S. 518, 536-40 (2006) (reaffirming Schlup's miscarriage-of-justice exception and highlighting that the standard is “demanding” and will permit review only in “extraordinary” cases); United States v. Ratigan, 351 F.3d 957, 965 (9th Cir. 2003) (stating petitioner's “procedural default could be excused if he could show actual, factual innocence, not just legal insufficiency of the evidence”).
B. Cole did not fairly and completely present Claim 2 in state court
Claim 2 is procedurally defaulted because Cole did not assert it in his PCR petition. Claim 2 alleges a due-process violation for the victims' religious references at sentencing. Cole did not assert in his PCR petition, or reply, a standalone due-process claim in connection with the religious references made at sentencing. (Doc. 19-1 at 164-174, Exh. P, at 5-15; Doc. 19-1 at 200 n. 1, Exh. R at 4 & n.1.) While the superior court construed his supplemental argument in the PCR reply as an IAC claim related to the religious references (PCR claim 4), it did not also construe the argument as a standalone due-process claim, and did not discuss such a claim in its ruling. (Doc. 19-1 at 211, Exh. S at 4.) It thus cannot be said that Cole fairly asserted the claim in his PCR petition. Significantly, the first time Cole asserted a due-process claim related to the religious references-and the first time a court perceived it as such-was in his petition for review to the appellate court. (Doc. 19-1 at 221-224, Exh. T at 6-9; see also Doc. 19-1 at 240-41, Exh. U at 3-4.) Because Cole presented the claim to the appellate court, but not to the superior court, he did not complete a full round of review in state court with respect to this claim, thereby rendering the claim unexhausted.
Furthermore, Cole cannot return to state court now to exhaust Claim 2. The only proper time Cole could have asserted Claim 2 was in his PCR petition. Although he could file a successive PCR petition hereafter, such a filing would fail to exhaust the claim for two reasons. First, a successive PCR petition would be untimely by nearly three years, since Claim 2 is a Rule 33.1(a) claim in that it alleges Cole's sentences were imposed in violation of the federal constitution. (Doc. 19-1 at 146-50, Exh. M (imposing sentence on March 18, 2019)); Ariz. R. Crim. P. 33.4(b)(3)(A) (requiring defendant to file a PCR notice for a Rule 33.1(a) claim “within 90 days after the oral pronouncement of sentence”). Second, Cole waived Claim 2 by not asserting it in his PCR petition; the claim would thus be deemed precluded in a successive PCR petition. See Ariz. R. Crim. P. 33.2(a)(3) (precluding PCR relief for any ground “waived in any previous post-conviction proceeding”). Further, as a Rule 33.1(a) claim, Claim 2 is not exempt from the preclusion rule. See Ariz. R. Crim. P. 33.2(b). For these reasons, Claim 2 cannot be exhausted and is now procedurally defaulted.
The procedural default is inexcusable. Cole provides no argument to establish cause and prejudice, or a fundamental miscarriage of justice. (Doc. 1 at 12.) In fact, he does not challenge the plea's validity, in effect conceding he is not factually innocent. See id. at 2- 6, 11-14. There is also nothing inherent in Claim 2 providing such justification. See id. at 12. The Court recommends dismissal of Claim 2 as inexcusably procedurally defaulted.
C. Cole did not fairly and completely present Claim 3 in state court
Claim 3 is procedurally defaulted because, while Cole presented it to the superior court in his PCR petition, he did not present it to the appellate court in his petition for review. (Doc. 19-1 at 170-72, Exh. P at 11-13; Doc. 19-1 at 221-29, Exh. T at 6-14.) The appellate court also did not raise the claim in its memorandum decision. (Doc. 19-1 at 242-44, Exh. U at 5-7.) Accordingly, Cole did not complete a full round of review in state court with respect to Claim 3, thus failing to exhaust it. Similar to Claim 2, Claim 3 cannot be exhausted. The claim is a trial-IAC claim and hence a Rule 33.1(a) claim. See Ariz. R. Crim. P. 33.1(a). Consequently, a successive PCR petition asserting Claim 3 would be untimely, and the claim itself would be deemed precluded as waived and without exemption. See Ariz. R. Crim. P. 33.2(b), 33.4(b)(3)(A).
Moreover, the procedural default is inexcusable. As explained before, Cole does not allege actual innocence. (Doc. 1 at 2-6, 11-14.) He also does not provide an excuse to establish cause, and prejudice, and Claim 3 itself provides no such justification. See id. at 13. Claim 3 is inexcusably procedurally defaulted.
D. Cole did not fairly present Claim 4B in state court
Claim 4B is procedurally defaulted because Cole did not present it to any state court, as Cole himself concedes. (Doc. 1 at 6; Doc. 19-1 at 164-174, Exh. P at 5-15; Doc. 19-1 at 200, Exh. R at 4 & n.1; Doc. 19-1 at 224-29, Exh. T at 9-14.) He thus failed to exhaust the claim. And he cannot exhaust it moving forward. The claim is a Rule 33.1(a) claim. See Ariz. R. Crim. P. 33.1(a). Therefore, a successive PCR petition asserting it would be untimely and deemed precluded as waived, without exemption. See Ariz. R. Crim. P. 33.2(b), 33.4(b)(3)(A). Cole offers no excuse for the claim's procedural default and, as previously discussed, does not claim actual innocence. (Doc. 1 at 2-6, 11-14.) Also, an argument for cause, and prejudice, is not inherent in the claim itself. See id. at 6, 14. Claim 4B is inexcusably procedurally defaulted.
V.STATEMENT OF TRANSCRIPTS AND RECORDS
As required by Rule 5 of the Rules Governing 28 U.S.C. § 2254 cases, Respondents submit as exhibits all relevant pleadings and orders from Cole's state court proceedings. Rule 5(c) also requires Respondents to “indicate what transcripts (of pretrial, trial, sentencing or post-conviction proceedings) are available, when they can be furnished, and what proceedings have been recorded but not transcribed.”
Respondents are only required to attach those parts of the transcript that they consider relevant. Id. Respondents are in possession of the following transcripts:
• R.T. 1/9/19 (change of plea); and
• R.T. 3/19/19 (sentencing).
While Respondents presently limit their answer to affirmative defenses, they nonetheless attached the above transcripts in the event the Court rejects the affirmative defenses.
A court reporter was present for the following proceedings, but no transcripts were made:
• Arraignment in CR20153837-001 (10/1/15);
• Arraignment in CR20154511-001 (11/17/15);
• Hearing re: release conditions in CR20153837-001 (10/9/15);
• Case management conference in CR20153837-001 (11/2/15);
• Case management conference in CR20153837-001 (11/16/15);
• Case management conference in CR20154511-001 (12/17/15);
• Case management conference in CR20153837-001 (12/18/15);
• Case management conference in CR20153837-001 (1/20/16);
• Case management conference in CR20154511-001 (1/28/16);
• Hearing re: motion to remand in CR20153837-001 (2/8/16);
• Pretrial conference in CR20153837-001 (2/22/16);
• Case management conference in CR20154511-001 (3/1/16);
• Pretrial conference in CR20154511-001 (4/12/16);
• Status conference in CR20154511-001 (4/20/16);
• Pretrial conference in CR20154511-001 (5/18/16);
• Status conference in CR20153837-001 (8/2/16);
• Status conference in CR20153837-001 (9/20/16);
• Status conference in CR20153837-001 (10/19/16);
• Status conference in both cases (11/16/16)
• Hearing re: trial continuance in both cases (4/19/17);
• Hearing re: trial continuance in both cases (10/10/17);
• Hearing re: trial continuance in both cases (3/22/18);
• Status conference in both cases (1/7/19); and
• Trial day 1 in CR20154511-001 (1/8/19).
VI. CONCLUSION
This Court finds it appropriate to deny Cole's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1) and dismiss it with prejudice as the Petition is time-bare, equitable tolling does not apply, and Grounds 2, 3, and 4B, are procedurally defaulted without excuse.
VII. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DISMISSING with prejudice, Petitioner's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number:
CV-21-00523-TUC-RM
Failure to file timely objections to any factual or legal determination for the Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties.