Opinion
No. CV-19-00918-PHX-GMS (JZB)
02-05-2020
Queinten Davon McDowell, Petitioner, v. Charles L Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Petitioner Queinten Davon McDowell has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner was sentenced on September 18, 2015. On October 13, 2016, the Arizona Court of Appeals affirmed Petitioner's sentences and convictions. Petitioner's first post-conviction relief proceeding concluded when the Maricopa County Superior Court dismissed the proceeding on October 4, 2018. Petitioner did not appeal the Superior Court's decision to the Arizona Court of Appeals. Petitioner's habeas Petition was due on or before November 12, 2017, but was not filed until February 11, 2019. Because there are no grounds for equitable tolling, the Court concludes that Petitioner's claims are untimely. Petitioner is not entitled to equitable tolling because Petitioner has not identified any extraordinary circumstance that prevented him from timely filing his claims. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.
II. Background.
a. Facts and Proceedings.
The Arizona Court of Appeals set forth the following facts in its Memorandum Decision affirming Petitioner's convictions and sentences on direct appeal:
See 28 U.S.C § 2254(e)(1) (stating that "a determination of factual issues made by a State court shall be presumed to be correct."); Runningeagle v. Ryan, 686 F.3d 758, 763 (9th Cir. 2012) (affording the Arizona Supreme Court's statement of facts "a presumption of correctness that may be rebutted only by clear and convincing evidence") (citing 28 U.S.C. § 2254(e)(1) and Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009)).
In autumn 2011, Lee Shine and William McIntyre shared an apartment. Unemployed, the young men spent most of their time using drugs and playing video games. Sometime in late September or early October 2011, McDowell and Joe Jasso approached McIntyre outside his apartment complex and inquired where they could buy marijuana. McIntyre invited McDowell and Jasso up to his apartment, and they essentially moved in, spending their days playing video games and using drugs with Shine and McIntyre.
Eventually, the young men ran out of money and drugs, and Shine offered to sell his laptop to acquire both. Jasso volunteered that he knew someone who would buy it and contacted the victim. Jasso and McDowell then met with the victim and traded the laptop for marijuana. When Jasso and McDowell returned with the drugs, Shine was upset that he did not receive any money in the exchange. He also believed the value of the marijuana received was far less than the value of the laptop. Believing he had been cheated, Shine suggested robbing the victim.
A conversation followed in which the four men discussed various ways to rob the victim. Initially, the men were "kidding," but as they revisited the matter over the next few days, the tone turned serious, and Shine offered to kill the victim with a knife. Jasso rejected the idea, believing the victim, who did not know Shine, would be suspicious if Shine approached him and would never allow Shine within stabbing distance. After further discussion, Jasso and McDowell decided they would attack the victim and "make it right."
As the plans finalized, McIntyre gave Jasso and McDowell a gun, and McDowell volunteered the kill the victim. On October 22, 2011, Jasso contacted the victim and arranged a meeting under the pretense of purchasing marijuana. Shine left to visit his grandparents and McIntyre waited at the apartment while Jasso and McDowell met with the victim.
When Jasso and McDowell returned a short time later, Jasso was covered in blood. "[E]xcited," Jasso and McDowell told McIntyre that they initially met with the victim inside the victim's car but McDowell then exited the backseat on the driver's side window. Jasso, still inside the vehicle at the time of the shooting, grabbed all the drugs he could find before jumping out of the rolling car. After relaying the events of the murder, McDowell returned the gun to McIntyre, but asked to keep the expended shell casing as a "trophy."
Later that evening, police were conducting a routine patrol when they received a call from dispatch regarding a report of a suspicious vehicle. As the officers responded to the scene, they saw the reported vehicle in the front yard of a private residence, positioned next to a tree with its lights on and the engine running. One officer looked through the open driver's side window and observed the victim seated in the driver's seat, but "slumped over," with his head resting on the passenger front seat. The victim's eyes were open and he was "slightly convulsing." From his position on the passenger's side, another officer saw that the victim had sustained a gunshot wound to his head. The officers immediately requested emergency assistance. Notwithstanding the efforts of medical personnel, however, the victim died from the gunshot wound.(Doc. 12-1, Ex. G, at 2-3.)
b. Trial Proceedings.
On January 12, 2012, McDowell (Petitioner) was indicted on one count of first-degree murder, a class 1 dangerous felony, and one count of armed robbery, a class 2 dangerous felony, in Maricopa County Superior Court case number CR 2012-005754-002. (Doc. 12-1, Ex. A, at 2.) On May 29, 2015, a jury found Petitioner guilty of the charged offenses. (Doc 12-1, Ex. B, at 2.) On September 18, 2015, the trial court imposed a term of life imprisonment with no possibility of parole for the first-degree murder conviction, and ten and a half years imprisonment for armed robbery conviction, with the sentences to run concurrently. (Doc. 12-1, Ex. D, at 2.)
c. Direct Appeal.
In a timely, direct appeal, Petitioner raised several issues: failure of the prosecution to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), failure by the trial court to preclude witness testimony in violation of Ariz. R. Crim. P. 15.6, and prosecutorial misconduct during closing arguments by "implying that Appellant's counsel was deceitful." (Doc. 12-1, Ex. E, at 9-17.) On October 13, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 12-1, Ex. G, at 1.) Petitioner did not petition the Arizona Supreme Court for discretionary review. (Doc. 11 at 3.) The Court of Appeals issued its mandate on November 28, 2016. (Doc. 12-1, Ex. H, at 1.)
d. Post-Conviction Relief Proceedings.
On June 26, 2018, Petitioner filed a notice of post-conviction relief. (Doc. 12-1, Ex. I, at 98.) On October 4, 2018, the Maricopa County Superior Court denied the Petition as "untimely by more than one year" without "adequate factual or legal basis to excuse" the untimely filing. (Doc. 12-1, Ex. J, at 2.) Petitioner did not appeal the Superior Court's decision to the Arizona Court of Appeals. (Doc. 11 at 5.)
Petitioner indicated in his Petition for a Writ of Habeas Corpus that on January 11, 2019, he filed a Second Petition for Post-Conviction Relief with the Maricopa County Superior Court. (Doc. 11 at 4.) Petitioner also indicates that he appealed the decision of the PCR court in both his First Petition and his alleged Second Petition to the Arizona Court of Appeals. (Id. at 5). However, there is no evidence in the record of a Second Petition for Post-Conviction Relief with the Maricopa County Superior Court, and Respondent states that Petitioner did not appeal the denial of his first post-conviction relief petition to the Arizona Court of Appeals. (Doc. 12 at 8). Even assuming Petitioner appealed the denial of his First Petition for Post-Conviction Relief, and that a Second Petition for Post-Conviction Relief was filed, Petitioner would still not be entitled to habeas relief from the Court.
III. Petition for Writ of Habeas Corpus.
a. The Petition.
On February 11, 2019, Petitioner filed a Petition for Writ of Habeas Corpus. (Doc. 1.) On March 4, 2019, Petitioner filed an Application for Leave to Proceed In Forma Pauperis. (Doc. 4.) On June 11, 2019, the Petitioner's Application to Proceed In Forma Pauperis was granted, but his petition was dismissed without prejudice, with leave to amend. (Doc. 6.) On July 22, 2019, Petitioner filed an Amended Petition for Writ of Habeas Corpus. (Doc. 7.) On August 5, 2019, Petitioner filed a Second Amended Petition for Writ of Habeas Corpus. (Doc. 11.) There, the Petitioner alleged three grounds for relief: (1) ineffective assistance of counsel by failing to inform Petitioner of the deadline to seek post-conviction relief under Ariz. R. Crim. P. 32; (2) ineffective assistance of counsel for recommending Petitioner not discuss his mental health issues during trial; and, (3) ineffective assistance of counsel for failing to obtain a mental health examination of Petitioner. (Doc. 11 at 6-8.) On September 3, 2019, Respondents filed a Limited Response addressing only the timeliness and alleged procedural deficiency of the Petition. (Doc. 12.)
IV. Discussion.
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).
Here, on October 13, 2016, the Arizona Court of Appeals affirmed the decision of the trial court as to conviction and sentencing. (Doc. 12-1, Ex. G, at 1.) Petitioner did not seek discretionary review by the Arizona Supreme Court. Petitioner's conviction thus became final thirty days later, when the period to seek review by the Arizona Supreme Court expired. 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."). See also Gonzales v. Thaler, 565 U.S. 134, 150 (2012) (judgment becomes final "when the time for pursuing direct review in this Court, or in state court, expires."). The habeas petition was due in this Court on or before November 12, 2017, absent statutory or equitable tolling. Petitioner did not file for habeas relief with this Court until February 11, 2019.
a. 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). 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). See also 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.
Petitioner's first post-conviction relief proceeding commenced on June 26, 2018. However, under Ariz. R. Crim P. 32.1(f), the deadline to file a PCR petition was December 28, 2016, thirty days after the Arizona Court of Appeals issued its mandate. State v. Rosales, 205 Ariz. 86, 89 (Ariz. Ct. App. 2003). Accordingly, Petitioner's PCR petition was untimely filed with the Maricopa County Superior Court by more than eighteen months, and therefore not entitled to statutory tolling under the AEDPA.
b. Equitable Tolling.
Petitioner is not entitled to equitable tolling because he has not shown extraordinary circumstances. "A petitioner who seeks equitable tolling of AEDPA's one-year filing deadline must show that (1) some 'extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights." Holland v. Florida, 560 U.S. 631, 649 (2010); Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). 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).
In his Reply, Petitioner asserts that his counsel failed to inform him of the 30-day filing deadline to commence his first PCR petition. (Doc. 11 at 11). However, "garden-variety claims of excusable neglect" are insufficient to warrant equitable tolling under the AEDPA. Holland, 560 U.S. at 651-52 (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).) Some additional misconduct by counsel has consistently been required to necessitate equitable tolling. See, e.g. Luna, 784 F.3d at 646-48 (affirmatively misleading a petitioner to believe a timely petition would be filed); Spitsyn v. Moore, 345 F.3d 796, 801-02 (9th Cir. 2003) (ignoring multiple attempts by the client and client's mother to direct counsel to file a PCR petition). Additionally, the Petitioner signed a Notice of Rights of Review After Conviction and Procedure which specifically informed him that he had 30 days following a mandate issued by the Arizona Court of Appeals to file a Notice of Post-Conviction Relief with the trial court. (Doc. 12-1, Ex. C, at 1.) The document was signed and dated by Petitioner on April 18, 2015, well over a year before the Arizona Court of Appeals issued its mandate. Petitioner makes no reference to this document in his petition for habeas corpus. Therefore, the "extraordinary circumstances" necessary to justify equitable tolling are not present in this case.
The Respondent asserts that "it is unclear from McDowell's petition whether the review he references refers to post-conviction proceedings, a petition for review to the Arizona Supreme Court, or federal habeas proceedings." (Doc. 12 at 11). However, under Ground One of Petitioner's Second Amended Petition, he specifically states that defense counsel failed to inform him that "my Rule 32 filing deadline was too late to file." (Doc. 11 at 6). In light of the similarities between the misconduct alleged in Ground One and Petitioner's explanation of timeliness, the Court concludes that the passage referred to by Respondent pertains to the timeliness of Petitioner's first PCR.
c. Actual Innocence.
Petitioner could avoid the time bar if he can demonstrate that a fundamental miscarriage of justice would result from this Court's failure to reach the merits of the claim. "Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Here, actual innocence is not one of the three claims presented by Petitioner; his first claim asserts ineffective assistance of counsel post-conviction, while his second and third claims regarding failure to permit Petitioner to testify as to his mental health and failure to order a mental health examination pretrial do not dispute in any fashion the factual circumstances of the case as described by the Court of Appeals and recounted above. Additionally, Petitioner does not even seek relief from the totality of his sentence; instead, he asks that the Court grant "[t]he Presumption of Second Degree Murder" and five years' probation. (Doc. 11 at 11).
This Court cannot say that no juror, acting reasonably, could find Petitioner guilty beyond a reasonable doubt. Because of "the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected." Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
d. Martinez.
Although Petitioner does not cite to Martinez v. Ryan, 566 U.S. 1 (2012), the Court has considered Petitioner's general claim that his prior counsel prevented him from fully pursuing his claims for post-conviction relief. Martinez is unavailing in this case because it does not excuse untimeliness. In Martinez, the Supreme Court recognized a narrow means by which a prisoner can show "cause" to excuse a state procedural default of a claim based upon alleged ineffective assistance of counsel at trial. See Martinez, 566 U.S. at 8-9. Martinez does not address or create an exception to the AEDPA statute of limitations. Federal courts have consistently rejected the argument that Martinez provides relief for time-barred petitions in the form of equitable tolling of the statute of limitations. 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)). See also, Madueno v. Ryan, No. CV-13-01382-PHX-SRB, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014) ("Martinez has no application to the statute of limitations in the AEDPA which governs Petitioner's filing in federal court."); Perry v. Uribe, No. SACV 11-0692 RGK (RNB), 2014 WL 4463120 at *3 (C.D. Cal. July 24, 2014) ("Martinez dealt solely with the state procedural default doctrine, which is entirely different from the issue presented here of whether Petitioner herein (including the ineffective assistance of trial counsel claim alleged in Ground 2) was time barred under the AEDPA statute of limitations."); White v. Martel, 601 F.3d 882, 884 (9th Cir. 2010) (the adequacy analysis used to decide procedural default issues is inapplicable to the determination of whether a federal habeas petition was barred by the AEDPA statute of limitations).
V. Evidentiary Hearing.
An evidentiary hearing is not warranted regarding Petitioner's claims, including equitable tolling, because the record is sufficiently developed to resolve the question of whether the Petition is timely. A habeas petitioner asserting equitable tolling "should receive an evidentiary hearing when he makes 'a good-faith allegation that would, if true, entitle him to equitable tolling.'" Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quoting Laws, 351 F.3d at 919). An evidentiary hearing is not mandatory. For the reasons outlined above, the Court has thoroughly reviewed the Petition, Response, and attachments and found Petitioner has not made a good-faith allegation that would entitle him to equitable tolling.
VI. Conclusion.
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that Petitioner's claims are untimely. The Court will therefore recommend that the Second Amended Petition for Writ of Habeas Corpus (doc. 11) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 11) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason 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), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. 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 (9th Cir. 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 judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Dated this 5th day of February, 2020.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge