Opinion
CV-21-00509-PHX-DJH (MTM)
12-21-2021
Douglas Dontae Smith, Petitioner, v. David Shinn, Respondent.
REPORT & RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DIANE J. HUMETEWA, U.S. DISTRICT JUDGE:
Petitioner Douglas Dontae Smith has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
I. SUMMARY OF CONCLUSION
The Petition raises five grounds for relief. Petitioner is in custody because of a felony conviction in 2013. The two grounds he raises relating to his 2013 conviction are non-cognizable or procedurally defaulted; one is also untimely. Petitioner also raises three grounds relating to other convictions. The Court does not have jurisdiction to review those grounds because Petitioner is not in custody for the sentences imposed for those offenses. The Court recommends that the Petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction & Sentencing
Petitioner had multiple cases in Maricopa County Superior Court. Petitioner is serving a 5-year sentence after pleading guilty to attempted sexual assault in CR2013- 435355-001 (“2013 case”).
1. 2010 Case
In CR2010-162784 (“2010 case”), Petitioner pled guilty to attempted influencing of a witness (Count 1) and attempted sexual assault (Count 2). (Doc. 9-1, Ex. B, at 7-10). He was placed on two years' probation for Count 1 and lifetime probation for Count 2. (Doc. 9-1, Ex. C, at 12-15). Petitioner was discharged from probation on Count 1 on June 3, 2013. (Doc. 9-1, Ex. D, at 17).
2. 2013 and 2017 Cases
On November 20, 2013, Petitioner pled guilty to an attempted sexual assault (Count 1) and attempted kidnapping (Count 2). (Doc. 9-1, Ex. I, at 34-37). Based on the 2013 convictions, the court concluded Petitioner had violated his probation in the 2010 case. (Doc. 9-1, Ex. F, at 23-24).
On January 13, 2014, the court sentenced Petitioner in the 2010 and 2013 cases. (Doc. 9-1, Ex. G, at 26-29; Doc. 9-2, Ex. J, at 4-8; see Doc. 9-2, Ex. K, at 10-16). The court revoked Petitioner's probation in the 2010 case and sentenced him to 1 year in prison on Count 1, followed by 3.5 years' imprisonment on Count 2. (Doc. 9-1, Ex. G, at 26-28). In the 2013 case, the court sentenced Petitioner to 3.5 years' imprisonment on Count 2, followed by lifetime probation on Count 1. (Doc. 9-2, Ex. J, at 5). Notably, the court erred in sentencing Petitioner to prison on Count 1 of the 2010 case. As the Arizona Court of Appeals later noted, Petitioner's prison sentence on Count 1 of the 2010 case was erroneous because it was imposed after Petitioner's discharge from probation on that count. (Doc. 93, Ex. OO, at 108; see Doc. 9-1, Ex. D, at 17). However, the court of appeals noted, “[a]lthough Smith's experience is regrettable, no remedy is found in the challenge before us.” (Doc. 9-3, Ex. OO, at 108). Petitioner was released from prison in June 2017. (Doc. 9-3, Ex. HH, at 51).
On December 13, 2017, Petitioner was charged in CR2017-156087 (“2017 case”) with possession of marijuana; he later pled guilty to that charge. (Doc. 9-2, Ex. O, at 3132; Ex. P, at 34-37; Ex. Q, at 39-42). Based on the 2017 conviction, the court concluded Petitioner had violated his probation in the 2013 case. (Doc. 9-2, Ex. M, at 23-24).
On January 30, 2018, the court sentenced Petitioner in the 2013 and 2017 cases. (Doc. 9-2, Ex. R, at 44; Doc. 9-2, Ex. N, at 26-29; see Doc. 9-2, Ex. S, at 46-71). In the 2017 case, the court sentenced Petitioner to 1.75 years in prison. (Doc. 9-2, Ex. R, at 44). In the 2013 case, the court revoked Petitioner's probation on Count 1 and sentenced him to 5 years in prison. (Doc. 9-2, Ex. N, at 27).
B. Post-Conviction Relief (“PCR”) Proceedings
On June 13, 2016, Petitioner filed in Superior Court a “Motion For A Court Order” in the 2010 and 2013 cases seeking an earlier release date based on additional presentence incarceration credit. (Doc. 9-2, Ex. T, at 74-85). Petitioner acknowledged he could have, but had not, brought these claims in a PCR proceeding. (Id. at 77). In response, the State asserted that Petitioner had been sentenced to the correct amount of time. (Doc. 9-2, Ex. U, at 87-102). On October 10, 2016, the court denied the motion. (Doc. 9-2, Ex. V, at 104).
On April 3, 2018, Petitioner filed a notice of PCR in the 2017 case pursuant to Ariz. R. Crim. P. 32.4(a)(1). (Doc. 9-2, Ex. W, at 106-08). Appointed counsel found no colorable claim. (Doc. 9-2, Ex. Z, at 119-21). On October 15, 2018, Petitioner filed a pro se PCR petition in the 2017 case-and in the 2013 case. (Doc. 9-3, Ex. BB, at 5-12). However, Petitioner did not have an active PCR proceeding in the 2013 case because he had not filed a notice of PCR in that case; his April 3, 2018 notice of PCR was filed only in the 2017 case. (See Doc. 9-3, Ex. CC, at 14; Doc. 9-2, Ex. W, at 106-08). The PCR court therefore deemed the October 15, 2018 petition the notice of PCR for the 2013 case. (Doc. 9-3, Ex. CC, at 14).
Effective January 1, 2020, the Arizona Supreme Court abrogated former Rule 32 and divided its substance among new Rule 32 (applying to defendants convicted at trial) and new Rule 33 (applying to defendants who pled guilty or no contest). Ariz. Sup. Ct. Order No. R-19-0012, available at https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure. The new rules apply to PCR proceedings initiated or pending on or after January 1, 2020 except where “applying the rule or amendment would be infeasible or work an injustice.” Id.; see State v. Mendoza, 467 P.3d 1120, 1122 n.1 (Ariz.Ct.App. 2020); McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *4 n.4 (D. Ariz. Feb. 26, 2020); Demaree v. Sanders, No. CV-17-00294-TUC-EJM, 2020 WL 2084582, at *2 n.4 (D. Ariz. Apr. 30, 2020). Any reference to the Rule 32 in this Report is to the pre-2020 amendment version unless otherwise specified.
Before he was appointed counsel, Petitioner had filed a pro se PCR petition in the 2017 case on April 19, 2018; the PCR court deferred action on it to allow Petitioner to consult with counsel. (Doc. 9-2, Ex. X, at 110-13; Doc. 9-2, Ex. Y, at 115). It appears this petition was subsumed into the later petition filed on October 15, 2018.
See Ariz. R. Crim. P. 32.4(a)(1) (“A defendant starts a post-conviction proceeding by filing a notice of post-conviction relief in the court where the defendant was convicted.”).
Petitioner raised five grounds for PCR in the October 15, 2018 petition: (1) abuse of discretion by the trial judge for expressing bias, (2) violation of federal due process based on the trial judge's abuse of discretion, (3) violation of Eighth and Fourteenth Amendments for being sentenced to prison on a misdemeanor charge, (4) entitlement to release, and (5) ineffective assistance of counsel. (Doc. 9-3, Ex. BB, at 7).
On December 17, 2018, the PCR court dismissed the PCR proceeding in the 2013 case as untimely under Ariz. R. Crim. P. 32.4(a)(2)(C), under which Petitioner had 90 days from sentencing to file a notice of PCR. (Doc. 9-3, Ex. FF, at 36-38). On September 17, 2019, the Arizona Court of Appeals granted review but denied relief. (Doc. 9-3, Ex. HH, at 50-52). As the PCR court had, the court of appeals deemed Petitioner's October 15, 2018 PCR petition his notice of PCR for the 2013 case and held it untimely by “over four years” as to the January 13, 2014 sentencing (where the court suspended imposition of a prison sentence in favor of lifetime probation on Count 1 of the 2013 case) and by “approximately six months” as to the January 30, 2018 sentencing (where the court revoked probation and imposed the current 5-year prison sentence on Count 1 of the 2013 case). (Id.). The Arizona Supreme Court denied review, and on April 27, 2020 the court of appeals issued its mandate. (Doc. 9-3, Ex. JJ, at 70; Doc. 9-3, Ex. KK, at 78).
At both sentencings in the 2013 case, the court expressly informed Petitioner he had 90 days from sentencing to seek PCR. (Doc. 9-2, Ex. K, at 15-16; Doc. 9-2, Ex. S, at 71).
The Arizona Supreme Court did not articulate its reasons for denying review. (See Doc. 9-3, Ex. JJ, at 70). The Court therefore presumes the Arizona Supreme Court agreed with and adopted the Arizona Court of Appeals' conclusion that the PCR proceeding was untimely. Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (“When at least one state court has rendered a reasoned decision, but the last state court to reject a prisoner's claim issues an order ‘whose text or accompanying opinion does not disclose the reason for the judgment,' [the Court] ‘look[s] through' the mute decision and presume[s] the higher court agreed with and adopted the reasons given by the lower court.”) (quoting Yist v. Nunnemaker, 501 U.S. 797, 802-06 (1991)).
On February 28, 2019, the PCR court summarily dismissed the PCR proceeding in the 2017 case, finding no colorable claim for relief. (Doc. 9-3, Ex. LL, at 83; see Doc. 93, Ex. DD, at 16-19 [State's response]). On May 14, 2020, the Arizona Court of Appeals granted review but denied relief. (Doc. 9-3, Ex. OO, at 107-09).
2. Successive PCR Proceedings
On April 9, 2020, Petitioner filed a second notice of PCR in the 2013 and 2017 cases. (Doc. 9-3, Ex. QQ, at 116-18; Doc. 9-3, Ex. RR, at 120-22). On May 13, 2020, the PCR court dismissed both proceedings as untimely and precluded. (Doc. 9-3, Ex. SS, at 124-26). The respective dockets do not reflect any further dispositive action. (See Doc. 93, Ex. TT, at 128-131 [2010 case]; Doc. 9-3, Ex. UU, at 133-36 [2013 case]; Doc. 9-3, Ex. VV, at 138-40 [2017 case]).
III. PETITION FOR WRIT OF HABEAS CORPUS
On March 24, 2021, Petitioner filed a habeas petition in this Court. (Doc. 1). As summarized by this Court and stated in the Petition, Petitioner raises five grounds for relief:
Ground One - that his due process rights were violated when the court failed to award him the correct amount of presentence incarceration credit in connection with CR2010-162784 and CR2013-435355 and imposed an aggravated sentence in CR2017-156087.
Ground Two - that he received ineffective assistance of trial counsel, in violation of his Sixth Amendment right to counsel and Fourteenth Amendment right to due process, when the attorney who represented him in connection with his sentencing in CR2013-435355 failed to “reasonably” investigate Petitioner's incarceration credits or determine the amount of probation Petitioner had already completed.
Ground Three - that his post-conviction review (PCR) counsel in CR2017-156087 was ineffective because he failed to adequately review the record to identify colorable claims, failed to file a proper Anders brief, and failed to address presentence credit to which Petitioner was entitled.
Ground Four - Petitioner appears to allege that the Maricopa County Superior Court and Arizona Court of Appeals deprived him of due process when they
denied relief in connection with Petitioner's PCR petition and petition for review, respectively.
Ground Five - that his sentencing on Count 1 of the 2010 case violated due process and the Double Jeopardy Clause.
(Doc. 6 at 2-3; Doc. 1 at 19-21).
Respondent's Answer asserted that the Petition was untimely and procedurally defaulted without excuse and that Petitioner was no longer in custody under certain judgments challenged. (Doc. 9). Petitioner replied. (Doc. 13).
IV. REQUISITES FOR FEDERAL HABEAS REVIEW
A. Timeliness
1. Statute of Limitations
A habeas petition must be timely filed. “The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005); see 28 U.S.C. § 2244(d)(1). In general, the limitations period runs from the date “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). If a petitioner does not seek direct review by the United States Supreme Court, the judgment becomes “final . . . when the time for pursuing direct review . . . in state court[] expires.” Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
2. Statutory Tolling Under 28 U.S.C. § 2244(d)(2)
“‘[A] properly filed application for State post-conviction or other collateral review' tolls AEDPA's statute of limitations for the pendency of the state court proceedings.” Curiel, 830 F.3d at 868 (quoting 28 U.S.C. § 2244(d)(2)). “Properly filed” means that the petition was filed in compliance with “applicable laws and rules governing filings,” including time limits. Artuz v. Bennett, 531 U.S. 4, 8 (2000); see Pace, 544 U.S. at 417 (“[T]ime limits, no matter their form, are ‘filing' conditions.”). Untimely petitions for PCR do not toll the statute. Pace, 544 U.S. at 414 (“When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”) (cleaned up); Curiel, 830 F.3d at 868 (“A habeas petition that is untimely under state law is not ‘properly filed.'”).
3. Equitable Tolling
To qualify for equitable tolling, the petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Hollandv. Florida, 560 U.S. 631, 648 (2010) (quoting Pace, 544 U.S. at 418). “The diligence required . . . is ‘reasonable diligence,' not ‘maximum feasible diligence.'” Id. at 653. However, “‘the threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.'” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (citations omitted). Thus, “equitable tolling is available . . . only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of the prisoner's untimeliness.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (cleaned up). A petitioner is not entitled to equitable tolling when the untimeliness was due to his own “oversight, miscalculation or negligence.” Waldron-Ramsey, 556 F.3d at 1011.
B. In Custody Under Judgment Challenged
A petitioner must be “in custody” pursuant to the state court judgment challenged in his habeas petition. See 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”) (emphasis added); Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (requiring that “the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition his filed”); Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010) (“Federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is under the conviction or sentence under attack at the time his petition is filed.”) (cleaned up).
C. In Custody in Violation of Federal Law
Further, a petitioner must be in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). Alleged errors in the interpretation or application of state law are not cognizable on habeas review. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“[F]ederal habeas corpus relief does not lie for errors of state law.”); see also Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). A petitioner cannot “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langfordv. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
V. ANALYSIS
A. The Court lacks jurisdiction to review Grounds Two, Three, and Five because Petitioner is no longer in custody under the sentence challenged.
Grounds Two, Three, and Five attack the January 13, 2014 judgment imposing the erroneous 1-year prison sentence on Count 1 of the 2010 case (see doc. 9-3, Ex. OO, at 108). In Ground Five, Petitioner argues that the imposition of the sentence deprived him of his rights to due process and to be free from double punishment. (Doc. 1 at 19-21). In Grounds Two and Three, Petitioner argues that his counsel at sentencing and on PCR review, respectively, were ineffective for failing to raise the error. (Id. at 9-14). As explained below, the Court is without jurisdiction to review Grounds Two, Three, and Five because Petitioner is no longer in custody pursuant to the January 13, 2014 judgment.
“The first showing a § 2254 petitioner must make is that he is ‘in custody pursuant to the judgment of a State court.'” Lackawanna Cnty. Dist. Att'y v. Coss, 532 U.S. 394, 401 (2001). The petitioner must “be ‘in custody' under the conviction or sentence under attack at the time his petition his filed.” Maleng, 490 U.S. at 490-91; see also Bailey, 599 F.3d at 978-79 (“Federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is under the conviction or sentence under attack at the time his petition is filed.”) (cleaned up). “[T]o satisfy the custody requirement, [the] petitioner must demonstrate that he is subject to a significant restraint upon his liberty ‘not shared by the public generally.'” Dow v. Circuit Ct. of First Circuit Through Huddy, 995 F.2d 922, 923 (9th Cir. 1993) (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)). While the “in custody” requirement has been “very liberally construed,” it has “never [been] extended [] to the situation where a habeas petitioner suffers no present restraint from a conviction.” Maleng, 490 U.S. at 492; see also Garlotte v. Fordice, 515 U.S. 39, 45 (1995).
A petitioner may attack a completed conviction only if “the challenged prior conviction . . . adversely affected the sentence that is the subject of the habeas petition.” Coss, 532 U.S. at 406. However, such a challenge may only be made where there was a failure to appoint counsel, a refusal by a state court to rule on a properly presented constitutional claim, or compelling evidence of actual innocence. Id. at 405. A claim of ineffective assistance of counsel is insufficient to obtain review of a completed conviction. Custis v. United States, 511 U.S. 485, 496 (1994) (“Custis attacks his previous convictions claiming the denial of the effective assistance of counsel, that his guilty plea was not knowing and intelligent, and that he had not been adequately advised of his rights in opting for a ‘stipulated facts' trial. None of these alleged constitutional violations rises to the level of a jurisdictional defect resulting from the failure to appoint counsel at all.”).
The Court agrees with Respondent's undisputed contention that Petitioner “is no longer in custody on the 2010 case.” (Doc. 9 at 25). When Petitioner filed his habeas petition on March 24, 2021, he was no longer in custody pursuant to any judgment in the 2010 case, including the January 13, 2014 judgment. On January 13, 2014, Petitioner was sentenced in the 2010 case to a total of 4.5 years in prison, including 1 year on Count 1 followed by 3.5 years on Count 2. (Doc. 9-1, Ex. G, at 27). He served these sentences and was released from prison in June 2017. (Doc. 9-3, Ex. HH, at 51). The superior court discharged Petitioner from probation on Count 1 and revoked his lifetime probation on Count 2. (Doc. 9-1, Ex. D, at 17; Doc. 9-1, Ex. G, at 27). Thus, on the record before the Court, Petitioner was not under any type of physical restraint-prison, probation, or otherwise-that rendered him “in custody” pursuant to the challenged January 13, 2014 judgment, or any other judgment in the 2010 case, when he filed his habeas petition on March 24, 2021. See Jones, 371 U.S. at 240; Dow, 995 F.2d at 923; see also Alaska v. Wright, 141 S.Ct. 1467, 1468 (2021) (“[A] habeas petitioner does not remain ‘in custody' under a conviction ‘after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted.'”) (quoting Maleng, 490 U.S. at 492). Therefore, the Court does not have jurisdiction to review Grounds Two, Three, and Five. Maleng, 490 U.S. at 490-91; Bailey, 599 F.3d at 978-79.
Moreover, Petitioner is not entitled to review of his completed sentence on Count 1 of the 2010 case because his conviction on that count did not “adversely affect” his current 5-year sentence on Count 1 of the 2013 case; at no point was his conviction on Count 1 of the 2010 case mentioned at the January 30, 2018 sentencing or anywhere in the sentencing order when the 5-year sentence was imposed. (See Doc. 9-2, Ex. N, at 26-28; Doc. 9-2, Ex. S, at 46-72). Further, although Petitioner alleges his counsel was ineffective for failing to timely raise the sentencing error, ineffectiveness of counsel is not a sufficient basis for obtaining review of a completed conviction. Custis, 511 U.S. at 496.
In imposing the 5-year sentence, the superior court noted Petitioner's conviction on Count 2 of the 2010 case, unwillingness to comply with the terms of probation, and refusal of psychological treatment. (Doc. 9-2, Ex. S, at 55, 60-61; see Doc. 9-1, Ex. G, at 27).
Based on the foregoing, the Court recommends that Grounds Two, Three, and Five be dismissed with prejudice for lack of jurisdiction.
B. Ground One is non-cognizable and untimely.
In Ground One, Petitioner argues that the superior court deprived him of due process by not mitigating his 5-year sentence on Count 1 of the 2013 case in light of the erroneous sentence he served in the 2010 case and by incorrectly calculating presentence incarceration credit. (Doc. 1 at 6-8).
Ground One is non-cognizable. Whether Petitioner was entitled to a lesser sentence or a different amount of presentence incarceration credit are purely issues of state law, which are non-cognizable on habeas review. Swarthout, 562 U.S. at 219 (“[F]ederal habeas corpus relief does not lie for errors of state law.”); Augustiniak v. Ryan, No. CV-18-03977-PHX-DWL, 2020 WL 1685556, at *3 (D. Ariz. Apr. 7, 2020) (holding that a challenge to the denial of presentence incarceration credit is a state-law claim not cognizable on habeas review and “Petitioner cannot evade this conclusion by repackaging his challenge as a due process claim”); Morgan v. Ryan, No. CV-15-01142-PHX-ROS, 2017 WL 131570, at *1 (D. Ariz. Jan. 13, 2017) (“[T]he issue of presentence incarceration credit is a state-law matter and any alleged error in the interpretation or application of state law cannot serve as a basis for habeas relief.”); see also Langford, 110 F.3d at 1389 (“[A petitioner cannot] transform a state-law issue into a federal one merely by asserting a violation of due process.”).
Moreover, Ground One is untimely. The January 30, 2018 judgment that Ground One challenges (doc. 9-2, Ex. N, at 26-28) became final on April 30, 2018-when the 90-day period for seeking PCR review expired. See Gonzalez, 565 U.S. at 150; Ariz. R. Crim. P. 32.4(a)(2)(C); see also State v. Petty, 225 Ariz. 369, 372 (App. 2010) (“[F]or a pleading defendant, Rule 32 is the only means available for exercising the defendant's constitutional right to appellate review [under the Arizona constitution].”) (cleaned up). Thus, a habeas petition challenging the January 30, 2018 judgment was due a year later on April 30, 2019. 28 U.S.C. § 2244(d)(1)(A). Petitioner's Petition, filed March 24, 2021, is therefore untimely by nearly two years.
Petitioner is not entitled to statutory or equitable tolling and therefore not entitled to a later filing deadline. The pendency of a PCR proceeding tolls the statute of limitations under 28 U.S.C. § 2244(d)(2) so long as the petition for PCR was “properly” and timely filed. See id. (“The 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 any period of limitation under this subsection.”) (emphasis added); Pace, 544 U.S. at 417 (“[T]ime limits, no matter their form, are ‘filing' conditions.”). As discussed above in Section II(B)(1), all levels of the state court held that Petitioner's PCR proceeding in the 2013 case was untimely. Consequently, the pendency of the proceeding-from the filing of the notice on October 15, 2018 to the issuance of the Arizona Court of Appeals' mandate on April 27, 2020-did not toll the statute of limitations. Pace, 544 U.S. at 414 (“When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”) (cleaned up); Curiel, 830 F.3d at 868 (“A habeas petition that is untimely under state law is not ‘properly filed.'”).
Petitioner is not entitled to equitable tolling. He fails to show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Pace, 544 U.S. at 418. Petitioner has not diligently pursued his rights in the 2013 case. Two and half years passed before he challenged his initial sentencing on January 13, 2014 for the first time in his June 13, 2016 “Motion for a Court Order” (doc. 9-2, Ex. T, at 74-85). See n.1. As discussed above in Section II(B)(1), Petitioner's request for PCR in the 2013 case was held untimely as to the initial sentencing by four years and as to the present 5-year sentence by six months. (See Doc. 9-3, Ex. HH, at 50-52). Petitioner argues that the superior court should have treated his June 13, 2016 Motion as his notice of PCR pursuant to Ariz. R. Crim. P. 33.3. (Doc. 13 at 3). However, Ariz. R. Crim. P. 33.3 was not in effect when Petitioner filed his motion, see n.2, and, in any event, the filing of a motion two and a half years after sentencing does not support a showing of diligence.
“If a court receives any type of application or request for relief--however titled--that challenges the validity of the defendant's plea or admission of a probation violation, or a sentence following entry of a plea or admission of a probation violation, it must treat the application as a petition for post-conviction relief.” Ariz. R. Crim. P. 33.3 (2020).
Petitioner has not shown an extraordinary circumstance prevented him from filing a timely habeas petition. In his reply, Petitioner states he requested certain documents from the State during his PCR proceeding in 2020, including copies of transcripts from the grand jury, change of plea, and sentencing proceedings; his plea agreement; probation violation report; release questionnaire; and his June 13, 2016 Motion. (Doc. 13 at 2). Petitioner argues that he would have complied with the rules of procedure in seeking PCR but for “the State's failure to provide him with the requested court documents within a reasonable time.” (Id. at 3).
Petitioner does not directly dispute the State's assertions of untimeliness or argue that equitable tolling should apply. (See Doc. 13). Rather, Petitioner attempts to show cause and prejudice in response to the State's assertions that his claims are procedurally defaulted. Nevertheless, construing Petitioner's pro se filing liberally, the Court considers the arguments in Petitioner's reply to the extent they may support a grant of equitable tolling. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed.”) (cleaned up).
While “[deprivation of legal materials is the type of external impediment for which . . . equitable tolling” may be granted, the petitioner must show that “the hardship caused by lack of access to his materials was an extraordinary circumstance that caused' his untimely filing. Waldron-Ramsey, 556 F.3d at 1013 (emphasis added). Petitioner fails that burden here. Here, Petitioner cannot blame “the State's [alleged] failure to provide him with . . . requested court documents within a reasonable time” for the untimeliness of his habeas petition because his requests for those documents were made in 2020, after the deadline for filing his habeas petition had already expired. (See Doc. 1 at 87-92). Any delays in 2020 could not have affected timely filing in 2019. Moreover, Petitioner's argument is undercut by the fact that he filed the present petition without having a copy of the sentencing transcript or his June 13, 2016 Motion, which he states he did not receive until he received them with Respondent's answer. (Doc. 13 at 2-3; see Doc. 9-2, Ex. K, at 10-17; Doc. 9-2, Ex. T, at 74-85).
Based on the foregoing, the Court recommends that Ground One be dismissed with prejudice as non-cognizable and untimely.
C. Ground Four is procedurally barred and non-cognizable.
In Ground Four, Petitioner argues that the state courts denied him due process in denying him relief in adjudicating his PCR petition and petition for review. (Doc. 1 at 1518; see Doc. 6 at 2-3). Petitioner alleges that the state courts “failed to address an essential element of [his] claim,” namely, that he had spent 642 days “in official custody that had been [accumulated] by serving multiple punishments for one offense and not receiving credit for the time he spent in presentence custody.” (Doc. 1 at 15 [“Here, the state courts disregarded 642 days Mr. Smith spent in official custody . . .”]). Petitioner asserts that the state courts “acknowledged” he had served an erroneous 1-year sentence in the 2010 case and were “aware” he had “277 days of presentence incarceration [credit] from the 2010 case that had not been applied nor credited towards any other imposed sentence” but “nevertheless” sentenced him “to an aggravated five year prison term for Count 1 of the 2013 case, using a prior felony conviction from the 2010 case as an aggravating factor.” (Id.). Petitioner argues that, during his successive PCR proceeding, “the superior court could not have conducted an adequate post-conviction review for error nor made a reasonable factual determination” because “the record [was only] partially available” during this proceeding. (Id. at 17-18; see also id. at 16 [“The superior court dismissed the successive [PCR] Notice on its face.”]). Petitioner states that during this proceeding he had requested, but did not receive, copies of the sentencing transcripts and release questionnaire, which he presumably would have presented to the PCR court in support of his claims that he had been erroneously sentenced and denied the correct amount of presentence incarceration credit. (Id. at 17; see id. at 87, 91-92). Further, Petitioner argues he was denied effective assistance of counsel and an evidentiary hearing during this successive proceeding. (Id. at 18). Because it is not clear from the Petition whether Petitioner is challenging his initial PCR proceeding, his successive PCR proceeding, or both, the Court will analyze both potential claims.
In the context of Petitioner's first, of-right PCR proceeding for the 2013 case, Ground Four is procedurally barred. “Under [the procedural bar] doctrine, a federal court ordinarily will not review a state court ruling if the state court would find that the claim was barred pursuant to an independent and adequate state procedural rule.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). If the state court denies a petitioner's claims because of an independent and adequate state procedural rule, “federal review of that claim is barred unless the petitioner can demonstrate a cause for the default, and prejudice as a result of the alleged violation of federal law, or that failure to consider the claim will result in a fundamental miscarriage of justice.” High v. Ignacio, 408 F.3d 585, 590 (9th Cir. 2005).
Here, because Petitioner pled guilty, the PCR petition in the 2013 case was an “of-right” proceeding. See Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007) (“Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).”). However, the PCR court found the PCR petition for the 2013 case untimely and declined to reach the merits. (Doc. 9-3, Ex. FF, at 36-38). The Arizona Court of Appeals affirmed. (Doc. 9-3, Ex. HH, at 5052). Petitioner does not show that the state court's denial of untimely PCR petitions is an inadequate procedural bar or that he has sufficient cause to excuse his untimely filing. See High, 408 F.3d at 589-90 (placing burden on petitioner to prove state's denial of untimely PCR petition was inconsistently applied and show cause for the procedural default); cf. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (recognizing “Arizona's waiver rules are independent and adequate bases for denying relief').
In the context of Petitioner's successive PCR proceedings, Ground Four is non-cognizable. Any alleged errors in Petitioner's successive PCR proceedings are precluded from habeas review because there is no federal right to a successive PCR proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (“[Post-conviction relief] is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief[.]”) (citation omitted); see also 28 U.S.C. § 2254(a) (permitting habeas relief only when a petitioner is in custody in violation of “the Constitution or laws or treaties of the United States”). Because Petitioner did not have a federal right to a successive PCR proceeding, his claim alleging various errors during his successive proceeding is non-cognizable and precluded from this Court's review. Cooperv. Neven, 641 F.3d 322, 331-32 (9th Cir. 2011) (“A petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”) (cleaned up).
VI. CONCLUSION
Because the Petition's claims are non-cognizable, procedurally barred, untimely, or directed at a sentence under which he is no longer in custody, the Court recommends that the Petition be denied and dismissed with prejudice. The record is sufficiently developed; an evidentiary hearing is not necessary for resolution of the matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011).
VII. CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here, and therefore the Court recommends that a certificate of appealability be denied.
IT IS THEREFORE RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 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. Thereafter, the parties have 14 days within which to file a response to the 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 determinations 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.