Opinion
No. CV-19-3855-PHX-NVW (DMF)
05-18-2020
Tyrue Lamar James, Petitioner, v. State of Arizona, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE:
In Maricopa County Superior Court case #CR2013-416849, Petitioner Tyrue Lamar James ("Petitioner") was convicted of attempt to commit armed robbery and assault; he was sentenced to a 9.5-year term of imprisonment for the attempted armed robbery, but the court suspended "the imposition or execution of sentence" for the assault in favor of three years of probation to follow Petitioner's release on the attempted armed robbery prison sentence.
The Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 does not set forth the counts of conviction or the sentence correctly (Doc. 7 at 11). The record from the trial court is clear that Petitioner's counts of conviction and sentences are as stated above (Doc. 14-1 at 39-44).
Petitioner is confined in the Arizona State Prison in Buckeye, Arizona. On May 21, 2019, he filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) ("Petition") (Doc. 1). After dismissal and leave to amend (Doc. 7), Petitioner filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Amended Petition") (Doc. 10). After order of the Court and service (Docs. 11, 12), Respondents filed a Limited Answer (Doc. 14). Petitioner filed a Reply (Doc. 18). This matter is ripe for decision.
The Petition was docketed by the Clerk of Court on May 28, 2019 (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on May 21, 2019 (Doc. 1 at 11). Pursuant to the prison mailbox rule, the undersigned has used May 21, 2019, as the 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.").
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-19-3855-PHX-NVW (DMF).
This matter is on referral pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation (Doc. 11 at 4). For the reasons set forth below, the undersigned Magistrate Judge recommends that this Court dismiss the Amended Petition (Doc. 10) with prejudice as untimely and procedurally defaulted.
The May 21, 2019, filing date of the original Petition is used for timeliness analysis herein.
I. BACKGROUND
A. Convictions and Sentences
In Maricopa County Superior Court case #CR2013-416849, Petitioner was charged by indictment with attempted armed robbery (Count 1), aggravated assault (Count 2), and misconduct involving weapons (Count 3) for trying to rob a fast-food restaurant with a handgun (Doc. 14-1 at 9-11). The prosecution thereafter alleged in Maricopa County Superior Court case #CR2013-416849 that Petitioner had three prior felony convictions for armed robbery (the "priors allegation"), which exposed Petitioner to enhanced sentences under A.R.S. §§ 13-702, 13-703 (Id. at 13-14). The prosecution also alleged in Maricopa County Superior Court case #CR2013-416849, pursuant to A.R.S. § 13-708(A), that Petitioner had committed the charged crimes while released from confinement (the "parole allegation") for Petitioner's prior conviction of armed robbery in case #CR2001-006389 ("2001 case") (Id. at 16-17). The parole allegation specifically cited A.R.S. § 13-708(A) (Id.). The parole allegation, if proven, would have required that Petitioner serve at least the presumptive imprisonment sentence for every crime of conviction in Maricopa County Superior Court case #CR2013-416849; Petitioner would have been ineligible for "suspension or commutation or release on any basis" for each and all of the convicted crimes in Maricopa County Superior Court case #CR2013-416849. See A.R.S. § 13-708(A) (West 2013). To be clear, the "parole allegation" is not an allegation in the 2001 case that Petitioner violated his parole; the parole allegation refers to the consequence for the charges in Maricopa County Superior Court case #CR2013-416849 that presumptive imprisonment sentences for convicted charges could not be suspended in favor of release, such as probation.
In 2013, A.R.S. § 13-708(A) stated that: "A person who is convicted of any felony involving a dangerous offense that is committed while the person is on probation for a conviction of a felony offense or parole, work furlough, community supervision or any other release or has escaped from confinement for conviction of a felony offense shall be sentenced to imprisonment for not less than the presumptive sentence authorized under this chapter and is not eligible for suspension or commutation or release on any basis until the sentence imposed is served."
In Maricopa County Superior Court case #CR2013-416849, Petitioner agreed to plead guilty to attempted armed robbery (Count 1) and aggravated assault (Count 2) in exchange for sentencing agreements in the case and the prosecution agreeing to dismiss the misconduct-involving-weapons charge (Count 3), the "priors allegation," and the "parole allegation" (Id. at 19-21). The plea agreement pertained only to Maricopa County Superior Court case #CR2013-416849 and did not contain any language about a concurrent sentence for Petitioner's parole violation in the 2001 case (Id.). The plea agreement's sentencing provision stated that:
For Count 1: the defendant shall be sentenced to Department of Corrections for a term of between 8 and 11 years. For Count 2, the defendant shall be placed on supervised probation following his physical release from DOC in Count 1. If Defendant rejects probation, the any DOC term imposed on Count 2 shall run consecutively to Count 1.(Id.at 19). There were also provisions in the plea agreement sentencing provision about restitution, forfeiture of the weapon, and contact with the victims/return to the scene (Id. at 19-20).
In Maricopa County Superior Court case #CR2013-416849, the trial court held a change of plea hearing in which it reviewed the plea agreement with Petitioner, advised Petitioner of all pertinent constitutional rights and rights of review, set a sentencing hearing, and deferred accepting the plea until the sentencing hearing (Id. at 23-24).
At sentencing on October 9, 2013, in Maricopa County Superior Court case #CR2013-416849, the trial court found that Petitioner had knowingly, intelligently, and voluntarily waived all pertinent constitutional and appellate rights (Id. at 40). The court accepted the plea agreement and sentenced Petitioner to 9.5 years' imprisonment for Count 1 (Id. at 39-40). As for Count 2, the court suspended "the imposition or execution of sentence" and ordered that Petitioner serve three years of probation after completion of his imprisonment sentence for Count 1 (Id. at 40).
The suspension of "the imposition or execution of sentence" for Count 2 in favor of probation would not have been legally possible without the prosecution dismissing the parole allegation per the plea agreement (Id. at 20). See A.R.S. § 13-708(A) (West 2013).
On October 9, 2013, Petitioner received a "Notice of Rights of Review," which informed Petitioner of the 90-day deadline for seeking post-conviction ("PCR") relief (Id. at 46). Petitioner signed an acknowledgment of receiving such on October 9, 2013 (Id.). The "Notice of Rights of Review" stated that a notice of post-conviction relief ("PCR Notice") must be filed within ninety (90) days of entry of judgment and sentence (Id.).
On February 2014, Petitioner sent several inquiries to the Arizona Department of Corrections ("ADC") about his classification and about his release date (Id. at 90-95). On February 14, 2014, ADC responded that Petitioner was serving the remainder of his imprisonment sentence in the 2001 case and then would serve his imprisonment sentence from Maricopa County Superior Court case #CR2013-416849 (Id. at 96). In response on March 19, 2014, Petitioner explained in correspondence to ADC that he believed that running the imprisonment terms in the 2001 case and Maricopa County Superior Court case #CR2013-416849 was in violation of his plea agreement for "a concurrent term on 9.5" years (Id. at 98) (emphasis in original). Petitioner wrote that the state is "on record stating that [his] parole violation would not be alleged" (Id.) Petitioner also recounted that while in the county jail, a parole representative visited him and he signed documentation "stating that [his] parole violation would dissolve or run concurrent with [his] new case" (Id.).
In further correspondence to ADC on May 6 and 17, 2014, Petitioner described that a parole officer had seen Petitioner while Petitioner was being held in jail for Maricopa County Superior Court case #CR2013-416849 and was "fighting" that case (Id. at 100-101). Petitioner asserted that the parole officer had informed Petitioner that if Petitioner received more than a year imprisonment in Maricopa County Superior Court case #CR2013-416849, Petitioner's parole violation imprisonment from his 2001 case would run concurrently (Id.). Petitioner again wrote that he had signed paperwork with the parole officer (Id. at 101). In support of his argument that the sentences for the 2001 case and Maricopa County Superior Court case #CR2013-416849 should run concurrently, Petitioner also wrote, "Not to mention, the state, upon accepting my plea also did not allege the parole violation" (Id.). The dates of ADC responses reiterating the consecutive sentences for the 2001 case and Maricopa County Superior Court case #CR2013-416849 are not legible in the record before the Court (Id. at 102-103).
The record before the Court contains no such paperwork. Further, the record before the Court reflects that Petitioner never presented such paperwork in Maricopa County Superior Court case #CR2013-416849 in any of his post-sentencing proceedings. Neither does the record reflect or reference any attempts by Petitioner to obtain such paperwork.
On June 19, 2014, Petitioner signed a pro per motion to clarify his sentence in Maricopa County Superior Court case #CR2013-416849, which was filed on the superior court's docket on June 30, 2014 (Id. at 48-49). Inconsistent with the record in Maricopa County Superior Court case #CR2013-416849, Petitioner wrote that the "plea agreement detailed that aggravated ass[ault] could be dropped and that [he] would receive a 9.5 year sentence running concurrent for attempt and robbery and misconduct involving weapons" (Id. at 49). Admitting that he was on community release in the 2001 case when he committed the crimes in this case, Petitioner averred that a parole officer had come to see him about revocation of his parole while Petitioner was being held pretrial in Maricopa County Superior Court case #CR2013-416849 (Id. at 48-49). Petitioner wrote that the parole officer told Petitioner that if he "received more than one year" in Maricopa County Superior Court case #CR2013-416849, the remaining time from his 2001 case would be served concurrently (Id.). Petitioner wrote that he "signed documentation with this representative" and that when he signed the plea agreement in Maricopa County Superior Court case #CR2013-416849, he believed his "parole violation for CR2001006389 [would not be] alleged" (Id.). Petitioner requested counsel be appointed for him and requested that his sentence be clarified (Id.).
The prosecution responded that the plea agreement did not apply to consequences in the 2001 case (Id. at 51-53). The prosecution explained that it had agreed to dismiss the parole allegation in Maricopa County Superior Court case #CR2013-416849 and argued that the plea agreement "in no way bound the courts [sic] ability to run any sentence imposed in CR2001-006839 to run consecutive to the sentence imposed" in Maricopa County Superior Court case #CR2013-416849 (Id. at 52).
On September 11, 2014, the court ruled that Petitioner's sentence in Maricopa County Superior Court case #CR2013-416849 properly ran consecutive to his sentence in the 2001 case (Id. at 55). The court explained that the parties had not addressed the interplay between Petitioner's sentences in Maricopa County Superior Court case #CR2013-416849 and the 2001 case and that Arizona law required that the sentences in Maricopa County Superior Court case #CR2013-416849 and the 2001 case run consecutively:
The minute entry is dated September 10, 2014, but was filed on September 11, 2014.
The sentencing minute entry is silent on the CR 2001-006389-001 community supervision case. Neither the [Petitioner] nor the [prosecution] asked the Court whether the 9.5 year sentence in this case ran concurrently or consecutive to that case[,] so the issue was not before the Court. Pursuant to A.R.S. § 13-711(B), the sentence in CR2013-416849-001 is consecutive to CR2001-006389-001.(Id.). Petitioner did not file for review at the Arizona Court of Appeals, and he did not file PCR proceedings until approximately six months later in March 2015 (Id. at 5, 57-62).
At the time of Petitioner's sentencing in Maricopa County Superior Court case #CR2013-416849, A.R.S. § 13-711 read as follows:
A. Except as otherwise provided by law, if multiple sentences of imprisonment are imposed on a person at the same time, the sentence or sentences imposed by the court shall run consecutively unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence.
B. Notwithstanding subsection A, if a person is subject to an undischarged term of imprisonment and is sentenced to an additional term of imprisonment for a felony offense that is committed while the person is under the jurisdiction of the state department of corrections, the sentence imposed by the court shall run consecutively to the undischarged term of imprisonment.
B. First Post-Conviction Relief ("PCR") Proceedings
In March 2015, Petitioner filed a PCR notice in Maricopa County Superior Court case #CR2013-416849 and argued that his consecutive imprisonment sentence to the 2001 case violated the terms of his plea agreement (Doc. 14-1 at 57-62). Petitioner acknowledged that his PCR notice was untimely, but argued that he was not at fault for the untimeliness because he had learned on an unspecified date after arrival to prison about the consecutive nature of his sentence (Id.). Petitioner attached his previous motion to clarify sentence and argued for the same relief from the consecutive running of the sentences in the 2001 case and in Maricopa County Superior Court case #CR2013-416849 (Id.).
The court held that the PCR notice was untimely, appointed counsel for Petitioner, and ordered Petitioner's counsel "to provide the legal and factual basis" supporting Petitioner's claim that he was not at fault for his untimely notice (Id. at 64-65). The court ordered that Petitioner's counsel "address only the issue of the untimely filing" of the PCR notice (Id. at 65). Petitioner's counsel filed a "supplement to untimely Rule 32 notice" that argued ineffective assistance of Petitioner's trial counsel for failing to inform Petitioner that the 2001 sentence would run consecutively to the sentence in Maricopa County Superior Court case #CR2013-416849 as a matter of law (Id. at 67 -71). The supplement stated that Petitioner "believed that his plea in this case was to run concurrently together with" the 2001 case and believed ADC had been incorrect about the consecutive nature of the sentences (Id. at 69). The filing did not address the delay between the court's ruling on the motion to clarify sentence and the PCR notice other than the summary assertion that "[o]nce the [c]ourt ruled it was a consecutive sentencing, [Petitioner] filed a [p]etition for [p]ost-[c]onviction relief" (Id. at 69).
The prosecution responded in opposition (Id. at 73-84). Attached to the reply were letters that Petitioner had written to ADC, described supra; the reply attributed the untimeliness of the PCR notice to Petitioner's efforts to obtain clarification about his sentence from ADC and from his attorney (Id. at 86-107). Also attached to the reply was Petitioner's January 17, 2015, request for ADC paralegal assistance reflecting that on January 22, 2015, Petitioner was given a January 30, 2015, paralegal appointment in the ADC library/resource center (Id. at 107).
On January 22, 2016, the superior court found that Petitioner had not proven that he was not at fault for the untimeliness because "[t]hrough his own exhibits he has demonstrated that he did not begin researching this issue until over a month past the [PCR] deadline" (Id. at 109-110). The court dismissed the PCR proceedings as untimely (Id.). Petitioner did not appeal the court's ruling (Doc. 7 at 14).
C. Second PCR Proceedings
Over two years later, in May 2018, Petitioner filed a "motion challenging legitamy [sic] of plea," in Maricopa County Superior Court case #CR2013-416849 in which he argued that he could not have filed a timely PCR notice because he did not know that his sentences ran consecutively; he also reasserted that the consecutive sentences ran contrary to his plea agreement (Doc. 14-1 at 112-116). A few months later, Petitioner filed a "motion to determine states [sic] violation of plea agreement" in Maricopa County Superior Court case #CR2013-416849, which raised the same claims (Id. at 118-121).
On October 25, 2018, the superior court considered the motions together as a second PCR notice and dismissed the proceedings as successive and untimely (Id. at 123-125). The court held that the second PCR notice was untimely because Petitioner had filed it two years after the court dismissed the first PCR proceeding, well outside the 30-day deadline for filing a second PCR notice, and because Petitioner had failed to meet his burden to explain why the claims were untimely raised (Id.). The court further explained that Arizona Rules of Criminal Procedure 32 did not allow Petitioner to bring an untimely challenge to his sentence, found that Petitioner had waived all non-jurisdictional defects unrelated to the voluntariness of his plea by pleading guilty, and found that Petitioner's claims were improperly successive because he either raised them in his first PCR proceeding or waived them by failing to raise them in his first PCR proceeding (Id.). The trial court concluded that Petitioner did not "state any claim for which Rule 32 can provide relief" (Id. at 124). Petitioner did not appeal the court's decision (Doc. 7 at 14).
D. Third PCR Proceedings
On November 30, 2018, Petitioner signed a third PCR notice, which was filed on December 27, 2018 (Doc. 14-1 at 127-132). Petitioner argued that (1) he was untrained in law and lacked access to legal sources, (2) the prison paralegal impeded his ability to file a timely PCR notice, (3) his sentence ran contrary to his plea agreement, (4) his trial attorney was ineffective for failing to tell him that his sentences would run consecutively, and (5) his trial attorney was ineffective for failing to raise "serious" but unspecified mitigation issues (Id.).
On January 30, 2019, the superior court dismissed the PCR notice, holding that the PCR notice was untimely, that Petitioner failed to provide an adequate factual or legal basis to excuse the untimeliness, that Petitioner's arguments were not based on newly discovered facts, and that the grounds were precluded because the claims were raised or could have been raised in prior PCR proceedings (Id. at 134-136). Again, the trial court concluded that Petitioner did not "state any claim for which Rule 32 can provide relief" (Id. at 136), and Petitioner did not appeal the court's decision (Doc. 7 at 14).
E. Petitioner's Habeas Claims
Petitioner raises two grounds for relief in the Amended Petition (Doc. 10). In Ground One, Petitioner asserts that the state violated his Fifth Amendment right to due process by failing to remove the parole allegation as required by the plea agreement (Id. at 6). In Ground Two, Petitioner claims his Sixth Amendment rights were violated by the "misconduct" of failure to dismiss the parole allegation as required by the plea agreement in Maricopa County Superior Court case #CR2013-416849, thereby causing Petitioner to serve consecutive sentences (Id. at 7).
Respondents assert the Petition was untimely filed and should be dismissed (Doc. 14). Further, Respondents argue that the Amended Petition grounds are unexhausted and procedurally defaulted without excuse (Id.). Respondents also argue that Petitioner's claims are meritless (Id.).
Respondents read the two interrelated habeas claims together as one claim.
II. AEDPA STATUTE OF LIMITATIONS
A. Start Date of AEDPA's Limitations Period
A threshold issue for the Court is whether the habeas petition is 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). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Petitioner's habeas petition because he filed it 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, the Court uses May 21, 2019, the date Petitioner placed the original Petition in prison mail, as the 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 the 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;28 U.S.C. § 2244(d)(1). The latest of the applicable possible starting dates is the operative start date. Id.
(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.
Here, the record presented does not implicate 28 U.S.C. § 2244(d)(1)(B) or (C). Petitioner does not allege an impediment to filing created by state action in violation of the Constitution or laws of the United States that prevented Petitioner from filing a habeas petition. Further, Petitioner does not allege that he is entitled to habeas relief based on a constitutional right newly recognized by the United States Supreme Court and made retroactive. The Petition arises from a final judgment and sentence. Petitioner alleges that he acted with due diligence and did not discover the factual predicate of his claim until a time after the judgment became final. Accordingly, the Court will review potential start dates for AEDPA's statute of limitations pursuant to 28 U.S.C. § 2244(d)(1)(A) and (D).
1. 28 U.S.C. § 2244(d)(1)(A)
If a defendant is convicted pursuant to a guilty or no contest plea in the Arizona state courts, then the first post-conviction proceeding is considered a form of direct review and the conviction becomes "final" for purposes of Section 2244(d)(1)(A) when the Rule 32 of right PCR proceeding concludes or the time for filing such expires. Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (conviction pursuant to plea agreement is final on expiration of the time for seeking Rule 32 relief). As such, AEDPA's Section 2244(d)(1)(A) "one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review." Id.
Here, the oral pronouncement of the judgment and sentence was on October 9, 2013. Petitioner had ninety days to initiate a timely first "of- right" PCR proceeding. See State v. Whitman, 234 Ariz. 565, 566-67, 324 P.3d 851, 852-53 (2014) (trial court's judgment and sentence is entered when orally pronounced). Thus, Petitioner had until January 7, 2014, to file a PCR notice. He did not do so. Accordingly, under Section 2244(d)(1)(A), AEDPA's statute of limitations began to run on January 8, 2014, and expired one year later, on January 7, 2015, more than four years before the May 21, 2019, filing date of the Petition.
2. 28 U.S.C. § 2244(d)(1)(D)
Under AEDPA Section § 2244(d)(1)(D), AEDPA's limitations period does not start to run until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Petitioner's reply argues that it wasn't until "after arriving to prison, and receiving release date info" that he discovered "that he was doing more time than the 9.5 years [he] was sentenced to" (Doc. 18 at 1). Petitioner asserts that he was told by prison officials in February 2014 that he was serving a consecutive sentence (Id. at 2). Even if Petitioner's grounds may lack merit, the factual basis of those grounds is the service of consecutive sentences for the 2001 case and Maricopa County Superior Court case #CR2013-416849. Petitioner further asserts that for months, he simply thought that ADC was making a mistake and that he communicated with ADC to achieve correction (Id.). Petitioner recounts that when he realized that ADC would not agree to a time recalculation wherein the sentences were not concurrent, he filed his June 19, 2014, motion for sentence clarification with the sentencing court in Maricopa County Superior Court case #CR2013-416849 (Id.).
Petitioner's failure to begin to investigate the factual underpinnings of his claims until three to four months after the sentence and judgment in his case was not exercise of due diligence and thus undermines the application of a later starting date for AEDPA's limitation period under Section § 2244(d)(1)(D). Nevertheless, if one assumes that Petitioner exercised due diligence, by March 19, 2014, Petitioner was aware of the factual predicate of his claims. On March 19, 2014, Petitioner explained in correspondence to ADC that he believed that running the imprisonment terms in the 2001 case and Maricopa County Superior Court case #CR2013-416849 was in violation of his plea agreement for "a concurrent term on 9.5" years (Doc. 14-1 at 98) (emphasis in original). The statute of limitations under AEDPA Section § 2244(d)(1)(D) would have started running the next day, on March 20, 2014, and would have expired one year later on March 19, 2015, more than four years before the May 21, 2019, filing of these proceedings.
Further, even assuming that Petitioner exercised due diligence and that the later date of June 19, 2014, when Petitioner signed his motion to clarify sentence, was Petitioner's discovery date of the factual underpinnings of the Amended Petition grounds, the statute of limitations would have begun to run the next day, on June 20, 2014, and would have expired one year later on June 19, 2015, over three years before the May 21, 2019, filing of this matter. Stretching the record even further, using the September 11, 2014, date that the trial court issued its ruling clarifying that Petitioner's sentence in Maricopa County Superior Court case #CR2013-416849 is consecutive to his sentence in the 2001 case, as the date that Petitioner discovered the factual predicate of his habeas claims, the Petition was still untimely filed on May 21, 2019, because the statute of limitations would have began to run on September 12, 2014, and would have expired on September 11, 2015, more than three years before the May 21, 2019, filing of these proceedings.
In his reply, Petitioner avers that in the January 30, 2019, dismissal of his third PCR proceedings, he "noticed that Judge Svoboda and the state, had for the first time, changed their position" (Doc. 18 at 4). Petitioner writes:
They held firm to the sentencing minute entry being silent, and claiming that the issue was never raised nor addressed in plea bargain, in terms of dismissal of parole, for nearly six years. Suddenly, the state acknowledged that the "plea" provided for dismissal of the parole allegation. This prompted me to seek habeas relief.(Id.). Petitioner's reply assertions are insufficient to render the filing of the Petition timely. The record is clear that the plea agreement on its face called for the dismissal of the parole allegation in Maricopa County Superior Court case #CR2013-416849, as described in section I(A), supra. Further, in February 2014, and even without due diligence, Petitioner was aware of the factual predicate of his claims, that the imprisonment sentence in Maricopa County Superior Court case #CR2013-416849 was consecutive to the imprisonment sentence in the 2001 case. AEDPA does not allow Petitioner to shoehorn the ruling on his third untimely PCR proceedings into a new statute of limitations start date.
3. Under either start date, the Petition was untimely filed
Whether applying a start date for AEDPA's statute of limitations pursuant to 28 U.S.C. § 2244(d)(1)(A) or pursuant to 28 U.S.C. § 2244(d)(1)(D), the Petition was untimely filed by more than three years. Unless statutory and/or equitable tolling applies to render the May 21, 2019, filing of the Petition timely, or Petitioner has met his burden for the "actual innocence gateway," these proceedings should be dismissed with prejudice as time-barred.
B. Statutory Tolling
AEDPA expressly 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). 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 AEDPA limitations period expires, a subsequently filed state post-conviction proceeding cannot restart the statute of limitations. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (noting that the limitations period is not reinstated by applications for state post-conviction relief filed after expiration of the AEDPA statute of limitations). "A state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled." Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Further, a second PCR proceeding that is deemed untimely does not toll the time between the first and second PCR proceedings. Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).
All of Petitioner's PCR proceedings were untimely filed. Petitioner's first PCR proceeding was filed in March 2015. After briefing by court appointed counsel, the court found that the PCR proceeding was untimely and Petitioner had not met the requirements for an untimely filing. The superior court found that Petitioner had not even attempted to investigate the basis of his claims until after the time to file an of-right PCR notice had expired. Also noteworthy is that while Petitioner filed a motion to clarify sentence in June 2014, he did not file a PCR notice until over six months after the court's ruling on the motion to clarify sentence. Petitioner's second and third PCR proceedings were filed in 2018, and both PCR proceedings were found to be untimely without excuse. The trial court also found that in the successive second and third PCR proceedings, Petitioner failed to "state any claim for which Rule 32 can provide relief" (Doc. 14-1 at 124, 136). Therefore, none of Petitioner's PCR proceedings tolled AEDPA's statute of limitations.
Accordingly, unless equitable tolling or the actual innocence gateway applies to make the May 21, 2019, filing of these proceedings timely, these proceedings should be dismissed with prejudice as time-barred.
C. 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. It is Petitioner's burden to establish 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).
"The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Id. at 653 (internal citations and quotations omitted). In determining whether reasonable diligence was exercised or not, courts should "consider the petitioner's overall level of care and caution in light of his or her particular circumstances." Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011). 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).
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).
Regarding untimeliness, the Amended Petition offers no explanation (Doc. 10 at 11). In his reply, Petitioner argues for equitable tolling, asserting that he has been diligent in pursuing his rights (Doc. 18). Yet, Petitioner has not presented even a prima facie case for equitable tolling. His state court filing in June 2014 and the promptly arranged paralegal meeting when Petitioner requested such in January 2015 demonstrate that there were not extraordinary circumstances which prevented Petitioner from timely filing his habeas petition. Nor has Petitioner shown reasonable diligence in pursuing his habeas claims. Petitioner made no efforts to file a habeas petition until he filed such in May 2019, despite his repeated frustrations with the state court rulings and prosecution positions during his state court proceedings. In addition, there were long periods of time which passed without effort on Petitioner's part in the filing of his state court proceedings. Petitioner waited six months from the court's ruling in September 2014 on Petitioner's motion to clarify his sentence to file his first PCR notice, and Petitioner has offered no explanation for such delay. Further, after Petitioner's first PCR proceedings were dismissed in early 2016, Petitioner waited several years to file any further court proceedings, and no explanation for such delay has even been offered.
Because Petitioner has not met his burden of showing extraordinary circumstances which prevented the filing of a timely petition for habeas corpus and he has not shown reasonable diligence towards filing a timely habeas petition, equitable tolling is unavailable.
D. 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."). However, Petitioner does not argue, let alone meet, this excuse for the untimely filing of the Petition.
E. These Proceedings Are Untimely Under AEDPA
Even when analyzing the record in the best light to Petitioner's arguments and the record before the Court, undersigned could find no plausible reading of the record that would render the Petition's May 21, 2019, filing timely. Thus, these proceedings should be dismissed with prejudice as untimely.
III. PROCEDURAL DEFAULT
A. Exhaustion of Remedies and Procedural Default
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion."). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Fair presentment of claims to the Arizona Court of Appeals requires a description of "both the operative facts and the federal legal theory on which his claim is based so that the state courts [could] have a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2004) (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
A corollary to the exhaustion requirement is the "procedural default doctrine." The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and "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). There are two types of procedural bars, "express and implied." Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar "that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule).
In Arizona, claims not previously and properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) & (b), (successive post-conviction petitions are limited to claims of being held in custody beyond sentence expiration, newly discovered material facts, requests for delayed appeal, significant change in the law retroactively applicable that would probably overturn conviction or sentence, and actual innocence); 32.4(a) (time bar); 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are "independent" of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) ("We have held that Arizona's procedural default rule is regularly followed [or "adequate"] in several cases.") (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); State v. Mata, 916 P.2d 1035, 1050-52, 185 Ariz. 319, 334-36 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies.
If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court and that state procedural bar is both "independent" and "adequate," then review of the merits of the claim by a federal habeas court is barred. See 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.") (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)). Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.") (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) ("A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.") (citing Harris, 489 U.S. at 264 n. 10).
Here, all three of Petitioner's PCR proceedings were denied because Petitioner failed to timely raise his claims. The superior court also found that Petitioner's second and third PCR proceedings failed to state claims that could be brought in an untimely, successive proceeding. Thus, Petitioner's habeas claims are subject to an express procedural bar and are procedurally defaulted.
An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). Here, Petitioner did not present his claims in his PCR proceedings, or even his motion to clarify sentence, to the Arizona Court of Appeals. If Petitioner were to appeal now, review would be precluded for untimeliness. See Ariz. R. Crim. P. 32.9(c) (petition for review of PCR determination must be filed within thirty days after the final decision of the trial court). Petitioner failed to exhaust his claims and is now prevented by an independent and adequate state law ground from exhausting his claims. Because exhaustion at the state court of appeals is impossible due to an implied procedural bar, Petitioner's claims are also procedurally defaulted on this basis. See Smith v. Stewart, 241 F.3d at 1995 n. 2; Beaty, 303 F.3d at 987.
As discussed above, Petitioner's claims are procedurally defaulted. The only remaining issue is whether Petitioner may establish excuse for the default of his claims by showing cause and prejudice or a fundamental miscarriage of justice/actual innocence.
B. The Procedural Default is Not Excused
This Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
1. Cause and prejudice
"Cause" is something that "cannot be fairly attributable" to a petitioner, and a petitioner must show that this "objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a "habeas petitioner must show 'not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). "Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied 'fundamental fairness' at trial." Id.
In the Amended Petition, Petitioner states he did not raise his claims in the Arizona Court of Appeals because he had no knowledge of such court until "now" (Doc. 10 at 6-7). In his reply, Petitioner states that his procedural default should be excused based on his lack of training in the law and his incarceration (Doc. 18 at 13). Petitioner has not shown cause for his procedural default because there was no external force that prevented Petitioner from timely and appropriate exhaustion. As discussed in the timeliness section, supra, Petitioner did not act within a reasonable timeframe to file his first PCR action after he clearly discovered the factual basis of his claims, the consecutive sentences, in 2014. Further, the prompt ADC action regarding Petitioner's January 2015, request for paralegal assistance belies Petitioner's argument that his failures to properly and timely exhaust his remedies in state court should be excused due to his ignorance of the law and incarcerated status. See Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988). Petitioner's writings to ADC, his filings in the state court, and his request for paralegal assistance that was promptly fulfilled all demonstrate that there was no external factor which establishes cause for the default.
While both "cause" and "prejudice" must be shown to excuse a procedural default, a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir. 1991). Petitioner has filed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice.
2. Miscarriage of justice
The miscarriage of justice exception to procedural default "is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt." Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). 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. United States, 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)). Significantly, "[t]o 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 (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)). However, Petitioner does not argue, let alone meet, this excuse for his procedural default.
3. No excuse for Petitioner's procedural default
As discussed above, the record does not support excuse for Petitioner's procedural default. Thus, the Amended Petition should be dismissed with prejudice.
IV. CONCLUSION
Based on the above analysis, the undersigned finds the filing of the Petition (Doc. 1) was untimely. Also based on the above analysis, the undersigned finds that Petitioner failed to fully exhaust his Amended Petition (Doc. 10) claims in state court, is now time-barred from returning to state court to exhaust his claims, and has not established excuse for the procedural default. Because of the untimeliness and unexcused procedural default, undersigned does not evaluate the merits of Petitioner's claims.
Accordingly, the undersigned recommends that the Amended Petition (Doc. 10) be dismissed with prejudice. 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 its procedural ruling. Accordingly, to the extent the District Judge adopts this Report and Recommendation regarding the Amended Petition, a certificate of appealability should be denied.
IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 10) be dismissed with prejudice.
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. 10) 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.
Dated this 18th day of May, 2020.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge