Opinion
No. CV-20-08205-PCT-DWL (DMF)
01-05-2021
Manuel Tebaqui, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
On August 5, 2020, Petitioner Manuel Tebaqui ("Petitioner"), who is confined in the Central Arizona Correctional Facility, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) ("Petition"). In an August 18, 2020 Order, the Court dismissed the Petition because Petitioner failed to allege that he is in custody in violation of the Constitution or the laws or treaties of the United States (Doc. 4). The Court found that "Petitioner's allegations are vague, conclusory, and insufficient to support that this Court has jurisdiction over the Petition" (Id. at 2). The Court gave Petitioner 30 days to file an amended petition that cured the deficiencies identified in the Order (Id. at 2-3). On September 4, 2020, Petitioner filed his Amended § 2254 Petition (Doc. 5) ("Amended Petition"). The Court required an answer to the Amended Petition (Doc. 6).
The Petition was docketed by the Clerk of Court on August 7, 2020 (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on August 5, 2020 (Doc. 1 at 11). Pursuant to the prison mailbox rule, the undersigned has used August 5, 2020, 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 electronic document filing system maintained by the United States District Court, District of Arizona, under Case No. CV-20-08205-PCT-DWL (DMF).
Respondents timely filed a Limited Answer on October 30, 2020 (Doc. 9). After the Limited Answer, Petitioner filed a Declaration (Doc. 10). The Declaration did not seem relevant to the defenses raised in the Limited Answer (Id.). Further, it appeared that the Declaration may have been mailed mistakenly to the Clerk of Court for filing in this case because the Declaration referenced a copy being sent to a judge of a different court (Id.). The Court noted the apparent problems with the Declaration and reminded Petitioner of the time-frame for filing his reply in support of his Amended Petition (Doc. 11). Nevertheless, Petitioner did not file a reply and the time to do so has passed.
This matter is on referral to the undersigned United States Magistrate Judge for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 6 at 3-4). For the reasons set forth below, it is recommended that the Court dismiss the Amended Petition (Doc. 5) with prejudice due to the untimely filing of the Petition (Doc. 1) and that the Court deny a certificate of appealability.
I. PROCEDURAL HISTORY
In Navajo County Superior Court, case #CR201500114, Petitioner was charged by indictment with two counts of sexual conduct with a minor, which were both class 2 felonies and dangerous crimes against children (Doc. 9-1 at 3-4). Petitioner was appointed counsel and later entered a plea agreement where he agreed to plead guilty to count one of the indictment and to be sentenced to the presumptive term of twenty (20) years in prison, day for day (Id. at 6-9, 11). On June 9, 2015, Petitioner pleaded guilty pursuant to the plea agreement (Id. at 11-12). On June 22, 2015, Petitioner was sentenced to twenty (20) years in prison, day for day, consistent with the plea agreement (Id. at 14-16).
Over three years later, in February 2019, Petitioner filed a notice of post-conviction relief ("PCR notice") (Doc. 5 at 12-14). The PCR notice checked the box that Petitioner was "raising a claim of ineffective assistance of counsel" (Id. at 13). The untimeliness section of the PCR notice was left blank, with no explanation for the untimeliness (Id. at 13-14). The trial court denied Petitioner's PCR request as untimely and without reason for the untimeliness. (Doc. 5 at 15; Doc. 9-1 at 19). On May 10, 2019, Petitioner filed a letter with the Arizona Court of Appeals, which the court of appeals treated as a petition for review (Doc. 9-1 at 18-19, 21-22). On September 17, 2019, the court of appeals granted review but denied relief, finding that Petitioner "has not established an abuse of discretion" by the superior court in denying Petitioner's request for PCR relief (Id. at 21-22).
II. THESE HABEAS PROCEEDINGS
Petitioner names David Shinn as Respondent and the Arizona Attorney General as an Additional Respondent (Doc. 5 at 1). The Amended Petition (Doc. 5 at 6) states the following claim, with subparts, for relief, beginning with an assertion that the claim is based on "[v]iolation [of] the Constitution of United State[s]":
-Ground 1a: "In 1998 the mother the sups victim for sexual with minor in 2015 the police in Phx explain the not have probus not victim and not have D.N.A. and deficiency assistance of counsel violated, my righ[t]"See Doc. 9 at 2-3.
-Ground 1b: "I accepted the plea offer that could receive an aggravated sentence although the state had no alleged aggravating circumstances. One possibility is the trial courts statement during oral argument that by agreeing to the sentencing range of 10-15-21 years for count 1 - implicit[l]y acknowledged that aggravating circumstances existed and therefore waived his right to specific notice in violation of the Sixth Amendment right to jury fact finding on aggravating circumstances Boykin v. Alabama, 395 U.S. 238 (1969)"
-Ground 1c: "In el[a]borating the scope of a defendant's Sixth Amendment sentencing rights to the U.S. Supreme Court stated Barkley v. Washington 524 U.S. 296, 310, 124 SCt 2531, 2541 (2004)"
Respondents argue that the Amended Petition (Doc. 5) should be dismissed with prejudice because these proceedings were untimely filed (Doc. 9). Further, Respondents argue that all the claims/subparts raised in the Amended Petition are technically exhausted but procedurally barred; in other words, all the claims/subparts are procedurally defaulted without excuse (Doc. 9).
The Amended Petition does not set forth an explanation for untimely filing of these habeas proceedings (Doc. 5 at 11). Neither does the Declaration (Doc. 10) filed by Petitioner after the Limited Answer of Respondents. No reply was filed.
III. TIMELINESS
A. Start Date of AEDPA's One Year Limitations Period
A threshold issue for the Court is whether these habeas proceedings are 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 proceedings because he filed his Petition 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 August 5, 2020, the date Petitioner placed the original Petition in prison mail, as the applicable 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 its one-year statute of 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;
(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.28 U.S.C. § 2244(d)(1). The latest of the applicable possible starting dates is the operative start date. Id.
Here, the Amended Petition arises from a final judgment and sentence, and the record does not present circumstances for a later start date based on subsections (B), (C), or (D). Thus, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A). AEDPA's one-year statute of limitations period runs from when the judgment and sentence 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).
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may seek review only by collaterally attacking the conviction(s) by way of post-conviction proceedings under Arizona Rule of Criminal Procedure 32 (now Rule 33). See Ariz. R. Crim. P. 17.2(e); A.R.S. § 13-4033(B). At the time of Petitioner's sentencing, Rule 32.4(a)(2)(C) required that an of-right PCR notice be filed within 90 days after entry of judgment and sentence. Further, a conviction becomes "final" for purposes of Section 2244(d)(1)(A) of AEDPA when the Rule 32 (now Rule 33) of-right proceeding concludes or the time for filing such expires. Summers v. Schriro, 481 F.3d 710, 711, 716-717 (9th Cir. 2007); see also A.R.S. § 13-4033(B). When an Arizona petitioner's PCR proceeding is of-right, AEDPA's statute of limitations does not begin to run until the conclusion of review or the expiration of the time for seeking such review. Summers, 481 F.3d at 711, 716-17.
Petitioner's sentencing was on June 22, 2015. Petitioner had ninety (90) days in which to file a PCR notice. Ninety days ran on Sunday, September 20, 2015, so the last day for filing a PCR notice was Monday, September 21, 2015. Petitioner did not file a PCR notice in this timeframe. Thus, Petitioner's conviction and sentence became final on September 21, 2015, triggering the start of AEDPA's one-year statute of limitations the next day. Thus, AEDPA's one-year statute of limitations began running on Tuesday, September 22, 2015, and expired on Wednesday, September 21, 2016. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) ("Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s 'anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 ... ."). Petitioner was required to file a federal habeas petition on or before Wednesday, September 21, 2016. Petitioner did not file the Petition until August 5, 2020. Thus, the Petition was untimely filed by several years. The Court will address whether statutory tolling, equitable tolling, or the actual innocence gateway applies to render the Petition, and these proceedings, timely filed.
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 statute of limitations has run, subsequent collateral review petitions do not "restart" the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Here, because the superior court found Petitioner's request for PCR relief untimely without cause, Petitioner's PCR proceedings were not "properly filed" and no statutory tolling applies.
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). To meet the first prong, Petitioner "must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court." Smith, 953 F.3d at 598-99 (expressly rejecting the "stop-clock" approach to equitable tolling). The second prong is met "only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing." Id. at 600.
"The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Id. at 653 (internal citations and quotations omitted). 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).
In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) ("[E]quitable 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."). A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where "it would have technically been possible for a prisoner to file a petition," so long as the prisoner "would have likely been unable to do so.").
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).
After carefully reviewing the entire record before the Court, undersigned concludes that Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstances prevented Petitioner from filing a timely petition for habeas corpus. Accordingly, equitable tolling is unavailable to Petitioner. . . . . . .
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.").
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. U.S., 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). "To 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 (2013) (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)).
Here, Petitioner has not even made assertions of actual innocence. Indeed, as relief in his Amended Petition, Petitioner seeks resentencing (Doc. 5 at 11). Even if any of Petitioner's claim and its subparts could be construed as an actual innocence claim, Petitioner has not presented new reliable evidence as required for the actual innocence/Schlup gateway. Accordingly, the actual innocence/Schlup gateway provides no relief to Petitioner for the untimely filing of the Petition.
E. These Proceedings Are Untimely Under AEDPA
Under applicable law, the Petition was untimely filed. Petitioner is not entitled to statutory tolling. Equitable tolling does not render the Petition's filing timely, nor does the actual innocence gateway. Thus, these untimely proceedings should be dismissed with prejudice.
IV. CONCLUSION
Based on the above analysis, the undersigned finds that the Petition (Doc. 1) was untimely filed and that neither statutory tolling, equitable tolling, nor the actual innocence gateway apply to render the filing of the Petition, and thus these proceedings, timely. Because the Petition (Doc. 1) was untimely filed, undersigned did not reach Respondents' argument that Petitioner's claims in the Amended Petition (Doc. 5) are procedurally defaulted without excuse.
The undersigned therefore recommends that the Amended Petition (Doc. 5) be dismissed with prejudice due to the untimely filing of these proceedings. 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. 5) 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. 5) 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 5th day of January, 2021.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge