Opinion
No. CV-17-04546-PHX-SPL (JZB)
07-16-2018
James Kevin Frazier, Petitioner, v. Charles L Ryan, et al., Respondents.
ORDER
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Petitioner James Kevin Frazier has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
On June 17, 2010, Petitioner was sentenced, pursuant to a guilty plea, to a 10-year term of imprisonment, to be followed by lifetime probation on two other counts. Petitioner's conviction became final on October 18, 2012, when the Arizona Supreme Court denied and thus ended his first post-conviction review proceedings. Petitioner filed two subsequent PCR proceedings, but those proceedings were dismissed as successive and untimely. This habeas Petition was due on October 18, 2013, but was not filed until December 6, 2017. There are no grounds for equitable tolling. The Petition is untimely. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.
II. Background.
A. Facts.
On February 4, 2010, the State charged Petitioner with four counts of molestation of a child, class 2 felonies and dangerous crimes against children. (Doc. 9-1, Ex. A, at 4.) The presentence investigation report contains the following summary:
On or between October 4, 2007, and October 14, 2009, the defendant engaged in sexual contact with a minor female on several occasions when she was between the ages of ten and eleven. This sexual contact involved the victim (who is the daughter of Mr. Frazier's former girlfriend) masturbating the defendant's penis. Mr. Frazier, who was residing with the victim and her mother when these molestations took place, would not allow the victim to do certain things (such as play with her friends at a swimming pool) unless she promised to masturbate him. These illegal sexual encounters were brought to the attention of the police by a friend of the victim's mother, and after initially claiming the defendant had not molested her, the victim that he had molested her as described above.(Doc. 9-1, Ex. E, at 35.)
During a confrontation call made by the victim's mother to the defendant (the conversation was monitored by the police), Mr. Frazier admitted, "okay it happened one time." Further, the defendant stated he would tell the truth about this matter "to the police, the judge, the jury, and everybody," commenting that the victim deserves that. The defendant later met with the victim's mother at a local fast food restaurant, at which time the police contacted Mr. Frasier and told him they wanted to hear his side of the story. Mr. Frazier did not wish to answer any questions outside the presence of his attorney, and he left the restaurant at that point.
B. Plea and Sentencing.
On May 19, 2010, Petitioner accepted a plea agreement and pleaded guilty to three counts of attempted molestation of a child. (Doc. 9-1, Ex. B, at 9.) On June 17, 2010, the trial court sentenced Petitioner to the stipulated agreement of 10 years in prison on Count One and consecutive lifetime probation on Counts Two and Three. (Doc. 9-1, Ex. F, at 74.)
C. Petitioner's Post-Conviction Relief Proceedings.
1. First Post-Conviction Relief Proceeding.
On August 2, 2010, Petitioner filed a notice of post-conviction relief (PCR). (Doc. 9-2, Ex. I, at 12.) On December 12, 2010, Petitioner filed the petition. (Doc. 9-2, Ex. M, at 26.) On July 19, 2011, his petition was denied because he "failed to show any colorable claim entitling him to Post-Conviction Relief under Rule 32.1." (Doc. 9-2, Ex. O, at 44.)
On August 1, 2011, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 9-2, Ex. P, at 49.) On June 12, 2012, the court of appeals granted review but denied relief. (Doc. 9-2, Ex. S, at 70-73.) On October 18, 2012, the Arizona Supreme Court denied his petition for review. (Doc. 9-2, Ex. U, at 79.)
2. Second Post-Conviction Relief Proceeding.
On January 19, 2016, Petitioner filed his second PCR notice. (Doc. 9-2, Ex. V, at 4.) On February 23, 2016, Petitioner's second petition was dismissed because it was "untimely and successive." (Doc. 9-2, Ex. W, at 66.)
On May 10, 2016, Petitioner filed a petition for review in the court of appeals. (Doc. 9-3, Ex. X, at 68.) On October 19, 2017, the court denied relief. (Doc. 9-3, Ex. DD, at 151.)
3. Third Post-Conviction Relief Proceeding.
On May 8, 2017, while his previous petition was pending, Petitioner filed his third PCR. (Doc. 9-3, Ex. Y, at 93.) On June 6, 2017, the petition was dismissed "as untimely and successive." (Doc. 9-3, Ex. Z, at 98.) On June 12, 2017, Petitioner filed a Motion for Reconsideration. (Doc. 9-3, Ex. AA, at 102.) On July 30, 2017, the court denied the motion. (Doc. 9-3, Ex. BB, at 112.)
On October 18, 2017, Petitioner filed a petition for review to the court of appeals. (Doc. 9-1, Ex. CC, at 115.) On October 26, 2017, the court dismissed his third petition because it was untimely and was not filed "within 30 days of the trial court's decision." (Doc. 9-1, Ex. EE, at 154.) On November 2, 2017, Petitioner filed a Motion to Rescind the Order Dismissing Petition for Review. (Doc. 9-3, Ex. FF, at 162.) On November 16, 2017, the court of appeals denied the motion. (Doc. 9-3, Ex. GG, at 172.)
4. Petitioner's Federal Habeas Petition.
On December 6, 2017, Petitioner filed a Petition for Writ of Habeas Corpus. (Doc. 1.) "In Ground One, he alleges that the statute he was convicted under is constitutional. And in Ground Two, he alleges that his attorney was ineffective for not challenging the constitutionality of the statute." (Doc. 4 at 1.) On December 20, 2017, Petitioner filed a supplement to his Petition. (Doc. 3.) On March 20, 2018, Respondents filed their Response. (Doc. 9.) On April 13, 2018, Petitioner filed a Reply. (Doc. 10.)
III. Untimely Petition.
A. Time Calculation.
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. Whether a petition is barred by the statute of limitations is a threshold issue that must be resolved before considering other procedural issues or the merits of individual claims.
The AEDPA imposes a one-year limitation period, which begins to run "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).
On June 17, 2010, the trial court sentenced Petitioner. (Doc. 9-2, Ex. G, at 2.) On August 6, 2010, Petitioner timely commenced his first PCR proceeding. (Doc. 9-2, Ex. I, at 14.) Petitioner's conviction became final on October 18, 2012, when the Supreme Court denied his petition for review. (Doc. 9-2, Ex. U, at 79.) Petitioner had until October 18, 2013 to file a habeas petition absent statutory or equitable tolling. See 28 U.S.C. § 2244(d)(1)(A).
B. Statutory Tolling.
Petitioner is not entitled to statutory tolling because his subsequent petitions for post-conviction relief untimely and successive. 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). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed. See Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004); Ariz. R. Crim. P. 32.4(a) ("A proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred.").
A state petition that is not filed within the state's required time limit, however, is not "properly filed," and, therefore, the petitioner is not entitled to statutory tolling. 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 the AEDPA's tolling provision). Thus, the AEDPA grants a criminal defendant one year from the conclusion of his direct appeal, minus time spent litigating a "properly filed" post-conviction claim, to file a federal habeas corpus petition.
On October 18, 2012, judgement became final when the Arizona Supreme Court denied Petitioner's first PCR. (Doc. 9-1, Ex. U, at 79.) Petitioner's second and third PCR proceedings did not toll the statute of limitations because they were dismissed as untimely and successive. (Doc. 9-3, Ex. W, at 66; Doc 9-3, Ex. Z, at 100.)
The habeas corpus Petition was filed on December 6, 2017, four years after the limitation period ended. (Doc. 1.) Therefore, the Petition is untimely by over four years, absent any equitable tolling.
C. Equitable Tolling.
Petitioner is not entitled to equitable tolling because he has not shown extraordinary circumstances prevented him from properly filing his Petition in a timely manner. "A petitioner who seeks equitable tolling AEDPA's 1-year filing deadline must show that (1) some 'extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights." Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The Petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must show that "the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). "Indeed, 'the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).
Here, Petitioner does not make a claim for equitable tolling nor does he show any extraordinary circumstances that provided a basis for showing he is entitled to equitable tolling. In the Reply, Petitioner does not claim that extraordinary circumstances prevented him from filing a timely petition. (Doc. 10.) Petitioner has demonstrated the ability to file legal pleadings in this case based on the numerous PCR petitions he filed in the state courts. See Gaston v. Palmer, 417 F.3d 1030, 1035 (9th Cir. 2005) (affirming conclusion that "[b]ecause [Gaston] was capable of preparing and filing state court petitions [during the limitations period], it appears that he was capable of preparing and filing a [federal] petition during the [same time]").
Petitioner argues that "the instant cause was filed in and with due-diligence . . . in light of the alleged ineffective assistance provided by his court-appointed counsels." (Doc. 10 at 4.) In Martinez v. Ryan, the Supreme Court established a "narrow exception" to procedural default, holding that a petitioner's failure to exhaust the issue of ineffective-assistance-of-trial-counsel may be excused if it was due to the ineffectiveness of his post-conviction counsel. 566 U.S. 1, 17 (2012). Petitioner's allegation of ineffective assistance of counsel does not change the Court's determination that the Petition is untimely. See Chavez v. Sec'y, Fla. Dep't Corr., 742 F.3d 940, 945 (11th Cir. 2014) ("Chavez's initial § 2254 petition was dismissed as untimely because it was filed more than one year after his convictions became final on direct review, see 28 U.S.C. § 2244(d)(1)(A), and nothing in [Martinez] alters that fact."); Manning v. Epps, 688 F.3d 177, 189 (5th Cir. 2012) (Martinez does not extend statute of limitations period under 28 U.S.C. § 2244(d)(1)(B)).
Accordingly, Petitioner has failed to meet the high threshold for equitable tolling.
IV. Conclusion.
Petitioner had one year from the Arizona Supreme Court's final judgment, on October 18, 2012, to file a timely habeas petition. The Petition was not filed until December 6, 2017. The Petition is untimely.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2244 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgement. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 (9thCir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Dated this 16th day of July, 2018.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge