Opinion
CV 17-04285-PHX-DJH (MHB)
12-12-2018
Leonard Dwight O'Dell, Petitioner, v. Charles Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:
On November 21, 2017, Petitioner Leonard Dwight O'Dell, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 11), and Petitioner has not filed a reply.
BACKGROUND
Pursuant to a plea agreement, on September 6, 2012, Petitioner was convicted in Maricopa County Superior Court, case ##CR 2011-101449, CR 2011-007699, and CR 2011-146392, of promoting prison contraband, aggravated assault, and destruction of or injury to a public jail, and was sentenced to a 9.25-year term of imprisonment. (Doc. 6; Doc. 11, Exh. O.)
On June 19, 2013, Petitioner filed two notices of post-conviction relief. (Exhs. Q, R.) One of the notices is dated August 7, 2012, one month before the trial court sentenced Petitioner, and the other notice is dated October 16, 2012. (Exhs. Q, R.) Petitioner filed his PCR petition on June 19, 2013. (Exh. S.)
On June 27, 2013, the state court dismissed Petitioner's PCR petition as untimely. (Exh. T.) In his habeas petition, Petitioner appears to assert that he sought review of this decision in the Arizona Court of Appeals, Arizona Supreme Court, and United States Supreme Court. (Doc. 1 at 2-3.) However, there is no documentation is the record supporting his assertion.
On November 29, 2016, Petitioner filed a second PCR petition dated November 19, 2016. (Exhs. U, V.) The state court dismissed the PCR petition on December 14, 2016, stating, in pertinent part:
A. Rule 32.1(a) Claims
In his current submission, Defendant contends that his conviction and sentence were obtained in violation of his Fifth and Sixth Amendment rights and he is entitled to relief under Arizona Rule of Criminal Procedure 32.1(a). (Petition at 3) Specifically, Defendant again contends that he received ineffective assistance of counsel. (Id. at 2) In addition, Defendant claims that the State introduced the following at trial: a coerced confession, evidence obtained pursuant to an unlawful arrest, evidence obtained by an unconstitutional search and seizure, and a statement obtained in the absence of a lawyer at a time when representation is constitutionally required. (Id. at 1-2) According to Defendant, he was badgered "after stating I need an attorney present to make a decision when speaking . . ." (Id. at 3) Furthermore, the State engaged in the unconstitutional suppression of evidence, infringed an unspecified constitutional or statutory right and the right against self-incrimination, and used a prior conviction to determine the sentence that was obtained in violation of the United States or Arizona Constitutions. (Id. at 2) Notwithstanding these claims, the record reflects that Defendant pled guilty and consequently did not have a trial.
Defendant cannot raise these Rule 32.1(a) claims in a successive and untimely Rule 32 proceeding because the notice may only raise claims pursuant to Rule 32.1(d), (e), (f), (g), or (h). Ariz. R. Crim. P. 32.4(a); see generally State v. Petty, 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010) (holding ineffective assistance of counsel claims are "cognizable under Rule 32.1(a)"). The Rule 32.1(a) claims the defendant has asserted were required to be raised in a timely Rule 32 proceeding. To the extent Defendant raised ineffective assistance issues in the previous Rule 32 proceeding, relief is also precluded under Arizona Rule of Criminal Procedure 32.2(a)(2); see generally State v. Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002) ("Our basic rule is that where ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.") (emphasis in original). To the extent Defendant is asserting new Rule 32.1(a) claims, relief is precluded under Arizona Rule of Criminal Procedure 32.2(a)(3).
B. Rule 32.1(f) Claim
In an effort to excuse his untimely claims, Defendant contends that he "never was allowed to pursue my America or citizen right to direct appeal." (Id. at 4). He further claims his counsel did not file a timely notice of appeal after being instructed to do so and state officials obstructed the right to appeal. (Id. at 2) Defendant also refers to "placement on very active yards causing me not to access due to lockdowns and staff problems etc." (Id.) In essence, he is claiming that the filing delay is without fault on his part under Arizona Rule of Criminal Procedure 32.1(f).
Defendant fails to supply an adequate factual or legal basis for relief under the rule. He waived the right to appeal by pleading guilty and consequently there was no appellate right to obstruct. Moreover, Rule 32.1(f) applies when (1) a pleading defendant seeks to file his first Petition for Post-Conviction Relief but has missed the filing deadline through no fault of his own; or (2) a trial defendant seeks a delayed appeal because through no fault of his own the notice of appeal is not timely filed. Rule 32.1(f) provides no remedy when, as here, the Rule 32 proceeding is not an of-right proceeding. See Ariz. R. Crim. P. 32.1(f) cmt. ("Relief pursuant to subsection (f) will continue to be unavailable to all post-conviction relief proceedings not 'of right.'"); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998).
C. Rule 32.1(e) Claim
He also raises a newly discovered material evidence claim pursuant to Arizona Rule of Criminal Procedure 32.1 (e). (Id. at 2) Although such claims are not necessarily precluded under Rule 32.2.(a), when raised they "must set forth the substance of the specific exception and the reasons for not raising the claim . . . in a timely manner." Ariz. R. Crim. P. 32.2(b); see also Ariz. R. Crim. P. 32.1(e). "If . . . meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated . . . in a timely manner, the notice shall be summarily dismissed." Ariz. R. Crim. P. 32.2(b).
Rule 32.1(e) is applied quite restrictively to overturn guilty pleas in part because a person who is "'not manifestly guilty of the crime charged'" may opt to plead guilty in the face of "a distinct possibility of a finding of guilt" to avoid the more severe sentence that could result from a jury trial. State v. McFord, 125 Ariz. 377, 379, 609 P.2d 1077, 1079 (App. 1980). To be entitled to post-conviction relief based upon newly discovered evidence, the defendant must show that the evidence was discovered after trial although it existed before trial; the evidence could not have been discovered and produced at trial or on appeal through reasonable diligence; the evidence is neither solely cumulative nor impeaching; the evidence is material; and the evidence probably would have changed the verdict or sentence. State v. Saenz, 197 Ariz. 487, 489, ¶ 7, 4 P.3d 1030, 1032 (App. 2000); see generally Ariz. R. Crim. P. 32.1(e). Defendant states: "absence of a weapon and []proper use of Rule 11 as well as mistrial." (Id. at 2) He fails to explain why these issues were material to his conviction and sentence, when he learned of them, whether he and defense counsel were aware of them prior to the change of plea, and what reasonably diligent steps he has taken to pursue these matters over the last four years and to bring them to the Court's attention. Consequently, Defendant fails to state a claim for Rule 32.1(e) relief.
In sum, Defendant fails to state a claim for which relief can be granted in an untimely and successive Rule 32 proceeding. The defendant must assert substantive claims supported by specific facts and adequately explain the reasons for their untimely assertion. Ariz. R. Crim. P. 32.2(b). Defendant has failed to meet this standard. The Court finds that no purpose would be served by further proceedings or preparation of the post-conviction relief record.(Exh. W.) Petitioner failed to seek review of the state court's decision in the Arizona Court of Appeals.
The record reflects that on October 25, 2016, Petitioner filed a habeas petition in case number CV 16-03695-PHX-DJH (MHB). The Court ultimately dismissed the habeas petition without prejudice for failure to comply with Court orders.
In the instant habeas petition, Petitioner raises one ground for relief. He claims that he received ineffective assistance of counsel and that his Sixth Amendment rights to counsel and "to not be subjected to badgering harassment or cross[-]examination w/o the presence of a lawyer" were violated. (Docs. 6, 1 at 6.)
DISCUSSION
In their Answer, Respondents contend that Petitioner's habeas petition is untimely and, as such, must be denied and dismissed.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
An "of-right" petition for post-conviction review under Arizona Rule of Criminal Procedure 32, which is available to criminal defendants who plead guilty, is a form of "direct review" within the meaning of 28 U.S.C. § 2244(d)(1)(A). See Summers v. Schriro, 481 F.3d 710, 711 (9 Cir. 2007). Therefore, the judgment of conviction becomes final upon the conclusion of the Rule 32 of-right proceeding, or upon the expiration of the time for seeking such review. See id.
Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9 Cir. 2002). A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9 Cir. 2004). A state petition that is not filed, however, within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414.
In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition is not filed until later. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9 Cir. 2004). An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9 Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See id. Moreover, filing a new petition for post-conviction relief does not reinitiate a limitations period that ended before the new petition was filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9 Cir. 2003).
The statute of limitations under the AEDPA is subject to equitable tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, 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'" and prevented him from filing a timely petition. Id. at 2562 (quoting Pace, 544 U.S. at 418).
The Court finds that Petitioner's Petition for Writ of Habeas Corpus is untimely. On September 6, 2012, the trial court sentenced Petitioner pursuant to the terms set forth in the plea agreement. By pleading guilty, Petitioner waived his right to a direct appeal, and had 90 days to file an "of-right" petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. Assuming Petitioner filed a timely notice of post-conviction relief, the state court dismissed the PCR petition on June 27, 2013. Thereafter, Petitioner had 30 days to file a petition for review in the Arizona Court of Appeals, which he failed to do.
Thus, Petitioner's case became final and the statute of limitations began running on July 29, 2013. Petitioner was required to initiate habeas proceedings on or before July 29, 2014. Under either date - October 25, 2016 (Petitioner initiated habeas proceedings in CV 16-03695-PHX-DJH (MHB)) or November 21, 2017 (Petitioner initiated habeas proceedings in the instant matter), and absent any tolling, his habeas petition untimely. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (federal habeas petition submitted one day late was properly dismissed as untimely under AEDPA, noting that a "missed" deadline "is not grounds for equitable tolling"); Hartz v. United States, 419 Fed.Appx. 782, 783 (9th Cir. 2011) (unpublished) (affirming dismissal of federal habeas petition where petitioner "simply missed the statute of limitations deadline by one day").
Petitioner's commencement of his second PCR proceeding on November 19, 2016, did not toll the limitations period. The proceedings were filed after the limitations period had expired, and, therefore, did not toll the limitations period. See Ferguson, 321 F.3d at 823 ("[S]ection 2244(d) does not permit the re-initiation of the [federal 1-year] limitations period that has ended before the state petition was filed.").
The Ninth Circuit recognizes that the AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9 Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9 Cir. 1998). Tolling is appropriate when "'extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." Id.; see Miranda v. Castro, 292 F.3d 1063, 1066 (9 Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9 Cir. 1999). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418. Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9 Cir. 2007).
Petitioner attempts to explain his untimeliness by stating that he "should be allowed to supersede the timeliness of petition and should be able to have one final chance." The Court finds that he has failed to demonstrate that he has been pursuing his rights diligently, and that some extraordinary circumstance stood in his way. Furthermore, 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 v. Garcia, 448 F.3d 1150, 1154 (9 Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.").
Accordingly, Petitioner is not entitled to any tolling and his habeas petition is untimely.
CONCLUSION
Having determined that Petitioner's habeas petition is untimely, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) 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 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to 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 (9 Cir. 2003). Failure timely to 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 or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
DATED this 12 day of December, 2018.
/s/_________
Michelle H. Burns
United States Magistrate Judge