Opinion
CV-21-0712-PHX-ROS (DMF)
12-15-2021
Anthony L. Wyatt, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE
On April 19, 2021, Petitioner Anthony L. Wyatt (“Petitioner”), who is confined in an Arizona Correctional Facility, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) (“Petition”). In a May 3, 2021 Order, the Court required an answer to the Petition (Doc. 3). The Court allowed that “Respondents may file an answer that (a) is limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative defenses as to some claims and discusses the merits of others; or (c) discusses the merits of all claims” (Id. at 3). Thereafter, Respondents timely filed a Limited Answer (Doc. 6), and Petitioner filed a timely reply (Doc. 12).
The Petition was docketed by the Clerk of Court on April 23, 2021 (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on April 19, 2021 (Doc. 1 at 11). Pursuant to the prison mailbox rule, the undersigned has used April 19, 2021, 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 CV-21-0712-PHX-ROS (DMF).
This matter is on referral to the undersigned United States Magistrate Judge pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation (Doc. 3 at 4). For the reasons set forth below, it is recommended that the Court dismiss the Petition (Doc. 1) and these proceedings with prejudice as untimely and that the Court deny a certificate of appealability.
I. PROCEDURAL HISTORY
A. Charges, Guilty Pleas, and Sentences
On March 30, 2015, Petitioner was charged by indictment with 23 counts of sexual exploitation of a minor (class 2 felonies and dangerous crimes against children) in Pinal County Superior Court case number CR 201501002 (Doc. 6-1 at 16-24). Represented by court appointed counsel, on July 29, 2015, Petitioner entered into a plea agreement and pleaded guilty to three counts of sexual exploitation of a minor (Id. at 26-28, 31, 38-40, 44-47). At the change of plea hearing, Petitioner agreed with the following facts:
As to Count 1, on or about March 19th of 2013, [Petitioner] knowingly possessed a photograph of a minor that was in a sexual exploitation manner. The minor was below the age of 15 years old.
As regards to Count 10, on or about the same date, March 19th of 2013, [Petitioner] knowingly possessed a picture of a minor engaged in a sexual exploitation manner. The minor was above the age of 15 but below the age of 18.
As regards to Count 11, on or about March 19th, 2013, [Petitioner] knowingly possessed another picture of a minor engaged in a sexual exploitation manner. The minor was above the age of 15, but below the age of 18.(Id. at 39-40). After Petitioner's counsel set forth that factual basis, the trial court asked Petitioner if that was “in fact what happened” (Id. at 40). Petitioner responded, “Yes, Your Honor” (Id.). The trial court found that Petitioner's guilty pleas had been “knowingly, intelligently and voluntarily made” with factual bases for such (Id.). A presentence report was prepared (Id. at 10-14). The presentence report expressly took its detailed five paragraph offense summary from “Homeland Security Investigations Report #Px07Qr14PX0035” (Id. at 11-12).
On January 5, 2016, Petitioner was sentenced pursuant to the plea agreement's stipulated sentences of fourteen years imprisonment on Count 1 and lifetime supervision to follow on Counts 10 and 11 (Id. at 27, 49-53).
B. Post-conviction Relief (“PCR”) Proceedings
1.First PCR Proceedings
On March 7, 2016, the clerk of the superior court filed Petitioner's timely PCR notice (Id. at 55-57). Petitioner identified his appointed counsel who had represented him throughout his criminal proceedings and checked the box stating that he was raising a claim of ineffective assistance of counsel (Id. at 56). Petitioner requested that counsel be appointed to represent him in his PCR proceedings (Id.).
The court appointed counsel (Id. at 59). Petitioner's appointed counsel later filed a notice that she could find no colorable claims to assert in a Rule 32 (now Rule 33) petition and requested that Petitioner be granted opportunity to file a pro se PCR petition (Id. at 61-63). Petitioner's appointed counsel also wrote Petitioner a detailed letter about allowable Rule 32 (now 33) grounds for relief and her review of his case file (Id. at 85-86). The court allowed for filing a pro se PCR petition, but Petitioner failed to file a timely pro se PCR petition (Id. at 5-6, 65, 68). Petitioner had asked for a continuance of the deadline for filing the pro se PCR petition (Id. at 87), but the court denied the requested continuance as well as Petitioner's request for discovery (Id. at 89). On November 1, 2016, the superior court dismissed the PCR proceedings for Petitioner's failure to file a timely pro se PCR petition (Id. at 5, 65, 68, 74).
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763, n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
Respondents incorrectly assert that this dismissal was on October 28, 2016 (Doc. 6 at 5, line 8), and later incorrectly state that the dismissal was on October 10, 2016 (Id. at 8, lines 13-14).
Respondents assert and Petitioner admits that Petitioner did not seek review of the dismissal in the Arizona Court of Appeals or the Arizona Supreme Court (Doc. 6 at 5; Doc. 1 at 5).
2. Petition for Special Action
Over three months after the dismissal of his first PCR action, on February 20, 2017, Petitioner signed a Petition for Special Action (Doc. 6-1 at 76) that was filed by the Arizona Supreme Court on February 22, 2017 (Id. at 72-92; Doc. 1 at 5). On May 12, 2017, the Arizona Supreme Court described the Petition for Special Action as “challenging the superior court's orders denying Petitioner's Request for Continuance and Request for Discovery on October 11, 2016, and dismissing the Rule 32 matter on November 1, 2016” (Doc. 6-1 at 94). The Arizona Supreme Court dismissed the Petition for Special Action for procedural reasons (Id.).
Respondents incorrectly assert that the filing date was May 5, 2017 (Doc. 6 at 5).
3. Second PCR Proceedings
Over ten months later, on March 26, 2018, Petitioner signed a second PCR notice (Id. at 98), which was filed on April 5, 2018 (Id. at 96-98). In the second PCR notice, Petitioner raised claims of newly discovered evidence, insufficiency of evidence, and ineffective assistance of trial counsel (Id.). In July 2018, Petitioner filed his pro se PCR petition (Id. at 100-120). Petitioner attached to his pro se PCR petition page 3 of report 001, page 4 of report 002, pages 3 and 4 of report 004, and page 3 of report 006 of Homeland Security Investigations Case Number #PX07QR14PX0035 (Id. at 113, 115, 117-118, 120), which are the same law enforcement investigation reports referenced in the presentence investigation report prepared before Petitioner's sentencing (Id. at 10-11). In his pro se PCR petition, Petitioner raised three claims: insufficiency of evidence for casein-chief in prosecution of action for sexual exploitation of a minor; prosecutorial misconduct for Brady violation on material facts of an exculpatory nature withheld regarding the investigation and arrest; ineffective assistance of counsel for failure to conduct any sort of inquiry into the investigation or to execute any discernible defense strategy (Id. at 102).
The state responded to Petitioner's pro se PCR petition (Id. at 122-128). In early October 2018, the superior court found that “all matters contained in the Petition for Post-Conviction Relief are precluded as having been previously ruled upon or untimely filed or the Petition lacks sufficient basis in law and fact to warrant further proceedings herein and no useful purpose would be served by further proceedings” (Id. at 130). On January 2, 2019, the superior court denied Petitioner's motion for rehearing (Id. at 68-69, 132).
In June 2019, Petitioner filed a petition for review with the Arizona Court of Appeals, which the court of appeals construed as challenging the factual basis supporting Petitioner's guilty pleas (Id. at 69, 135; see also Id. at 134-144). The state responded (Id. at 146-153). On April 21, 2020, the court of appeals granted review and denied relief (Id. at 155, 67-70). The court of appeals found that Petitioner failed to challenge the factual basis for the pleas in his pro se PCR petition filed in the superior court (Id. at 69). Further, the court of appeals found that to the extent that Petitioner claimed that his “plea was obtained in violation of the federal or state constitution[, ]” any such claim was precluded as untimely (Id. at 69-70). Petitioner did not file a petition for review to the Arizona Supreme Court (Id. at 155-157). The Arizona Court of Appeals issued the mandate on October 5, 2020 (Id.).
II.THESE HABEAS PROCEEDINGS
In his Petition, Petitioner names David Shinn as Respondent and the Arizona Attorney General as an Additional Respondent (Doc. 1 at 1). The Petition alleges three grounds for relief (Id. at 6-8, 15-24). In Ground One, Petitioner asserts that his trial counsel was ineffective, in violation of the Sixth Amendment, “for failing to conduct a pretrial investigation” including “failure to conduct inquiry into the originating Federal investigation that gave origin to state court prosecution” (Id. at 6). In Ground Two, Petitioner asserts that his Fourth, Fifth, and Fourteenth Amendment rights were violated when the prosecution used inadmissible, “lawlessly obtained” evidence and that insufficient admissible evidence supported Petitioner's conviction (Id. at 7). In Ground Three, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the state suppressed exculpatory evidence (Id. at 8).
Respondents argue that the Petition should be dismissed with prejudice because these proceedings were untimely filed (Doc. 6). Further, Respondents argue that Petitioner waived all his claims by his guilty pleas, that his first claim is actually a Fourth Amendment claim that is not cognizable in federal habeas proceedings, and that his claims are procedurally defaulted without excuse (Id.).
In reply, Petitioner argues that Respondents' defenses are inapplicable (Doc. 12). Petitioner also asserts that the appropriate start date of the statute of limitations is derived from a different subsection than asserted by Respondents and renders the Petition timely filed (Id. at 5-6).
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)).
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.
The Petition (Doc. 1) alleges three grounds for relief, each arising from a judgment and conviction. Because the Petition claims each arise from a final judgment and sentence, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless Petitioner can show a later start date applies under one of the other subsections. Under 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.”
Petitioner's reply argues that a later start date under 28 U.S.C. § 2244(d)(1)(D) applies (Doc. 12 at 5-7). Under 28 U.S.C. § 2244(d)(1)(D), AEDPA's limitations period does not start to run until “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Petitioner states in support of this assertion that 28 U.S.C. § 2244(d)(1)(A) “does not apply to due diligence exercised in discovery of new exculpatory facts, as Petitioner did faithfully execute, through the Freedom Of Information Act (FOIA) requests to the Department of Homeland Security” (Id. at 5). Yet, Petitioner does not establish that he obtained any documents through his FOIA requests, what documents were obtained, how such documents relate to the claims made in this habeas matter, and why those documents were necessary to obtain to discover the factual predicate of any of his claims. Nor does Petitioner establish when he made such FOIA requests and that the requests could not have been made during the statute of limitations period applicable under 28 U.S.C. § 2244(d)(1)(A).
Further, in the Presentence Investigation Report filed in the superior court record on October 27, 2015, the offense summary was obtained from “Homeland Security Investigations Report #Px07Qr14PX0035” (Doc. 6-1 at 11) and provided detail regarding the underpinnings of the investigation and charges against Petitioner:
Beginning in July, 2013, Homeland Security Investigations (HSI) and the Cyber Crimes Center disseminated leads to HSI Phoenix Office. The leads related to U.S. based account holders of a foreign sharing website used to facilitate the trafficking of child pornography. One of those account holders was identified as, [Petitioner] Anthony L. Wyatt of San Tan Valley.
HSI Phoenix received a lead regarding a member account with the username “tonyhere.” That was a deleted username that was closed for violation of terms of service/rules. A review of the account, revealed that between July 9, 2013 and July 11, 2013, “tonyhere, ” registered the account, posted images and was subsequently banned by the website. The foreign law enforcement agency provided over 100 images to HSI that were associated with “tonyhere.” A majority of the images were “prepubescent girls in costume, but that more than ten of the images were primarily focused on the nude genitalia of prepubescent girls.” Law enforcement determined that “tonyhere” had logged into the account four times between the account creation on July 9, 2013 and July 11, 2013. They were able to track the IP address to [Petitioner]'s residence in San Tan Valley.
Law enforcement interviewed [Petitioner] on June 18, 2014. [Petitioner] is employed as an Information Technology Officer for the United States Army Reserve. [Petitioner] stated that he did not recognize the name of the foreign file sharing website, but recalled posting pictures to an online photo sharing site around July 2013. He knew that the pictures he posted were of girls, but he did not think the girls were that young and did not depict them as child pornography. He denied sexual interest in children and denied searching for child pornography. He stated that he is sexually attracted to younger looking females and that he does search for “legal teenage sex” on the internet. A search of [Petitioner]'s computer revealed hundreds of images of different sizes “depicting child erotica and over three hundreds [sic] images depicting prepubescent girls posed in a sexually explicit manner.”
On June 23, 2014, Law enforcement executed a search warrant at
[Petitioner]'s residence. [Petitioner]'s wife, Casey Wyatt, reported that nine years ago, her oldest daughter, who was five at the time, told her that [Petitioner] “touched” her. Her daughter told her that [Petitioner] put his finger “inside” her. She didn't report it to law enforcement, and [Petitioner] denied it. Her daughter did not make any other claims about [Petitioner]. Casey agreed to have both of their children foresically [sic] interviewed. No. reports of abuse were disclosed by either child.
[Petitioner] was detained and immediately stated, “I have a problem.” [Petitioner] admitted that he is addicted to pornography of all kinds. [Petitioner] stated that he is primarily sexually interested in women his own age and that he is not sexually attracted to children. [Petitioner] admitted to saving the child porn on his computer for approximately one year, before he deleted the images. [Petitioner] was booked into the Pinal County Jail on charges of Sexual Exploitation of a Minor. [Petitioner] remains in custody, awaiting sentencing.(Id. at 11-12). These specifics set forth in the October 2015 presentence report undermine Petitioner's general assertions that some undescribed FOIA requests call for a start date later than provided under 28 U.S.C. § 2244(d)(1)(A). Indeed, the plea agreement Petitioner signed on July 29, 2015, referenced the Homeland Security Investigations Report (Id. at 26-28). The plea agreement provided that Petitioner “agrees to forfeit all computer and media seized as referenced in Homeland Security Investigations Report #Px07Qr14PX0035” (Id. at 27). The plea agreement and presentence report demonstrate that Petitioner was aware the report existed and was familiar with its contents well before his sentencing. Petitioner's vague references to FOIA requests to the Department of Homeland Security he made at some undisclosed time do not meet the requirements 28 U.S.C. § 2244(d)(1)(D).
Even if Petitioner had met the requirements to establish a later start date of AEDPA's statute of limitations pursuant to 28 U.S.C. § 2244(d)(1)(D), his Petition would still have been untimely filed. In Petitioner's second PCR proceedings, Petitioner filed a July 2018 pro se PCR petition to which he attached various pages of Department of Homeland Security reports from the investigation which led to the charges against him and his convictions at issue in these proceedings (Doc. 6-1 at 100-120). These proceedings were filed more than a year after the July 2018 pro se PCR petition.
The Court finds that the start date of AEDPA's statute of limitations pursuant to 28 U.S.C. § 2244(d)(1)(A) is applicable and the record before the Court does not present circumstances for a later start date based on subsections (B), (C), or (D) of 28 U.S.C. § 2244(d)(1).
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 took place on January 5, 2016, and Petitioner timely filed first of-right PCR proceedings. Those first of-right PCR proceedings concluded with the trial court's dismissal of the proceedings on November 1, 2016. Petitioner had thirty days, plus five days for mailing, to file a petition for review in the Arizona Court of Appeals. See former Ariz. R. Crim. P. 32.9(c) (providing that a petition for review must be filed within thirty days); former Ariz. R. Crim. P. 1.3(a) (five calendar days added for mailing); State v. Savage, 117 Ariz. 535 (1978) (applying Rule 1.3(a) to deadline for petition for review from denial of motion for rehearing in PCR proceeding). Petitioner did not file a timely petition for review in the Arizona Court of Appeals of the superior court's November 1, 2016, dismissal of Petitioner's first of-right PCR proceedings. Thus, Petitioner's conviction and sentence became final thirty-five days later on December 6, 2016, triggering the start of AEDPA's one-year statute of limitations the next day. AEDPA's one-year statute of limitations began running on December 7, 2016, and expired on December 6, 2017. 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 ....”). Therefore, Petitioner was required to file a federal habeas petition on or before December 6, 2017.Petitioner did not file the Petition until April 19, 2021. The Court therefore finds that the Petition was untimely filed by over three years.
While Respondents' statements of law are accurate in their discussion of these time calculations, the dates referenced by Respondents are incorrect (see Doc. 6 at 8). The result is nevertheless the same in that the Petition was untimely filed by several years.
Because the Petition was filed years after AEDPA's one year statute of limitations period expired, 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).
Petitioner's Petition for Review did not trigger statutory tolling because the Petition for Review was not properly filed, as found by the Arizona Supreme Court, and was not a PCR proceeding. Further, Petitioner's second PCR notice was filed after AEDPA's limitations period had already expired. Accordingly, 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).
In his reply, Petitioner argues that he is entitled to equitable tolling of AEDPA's statute of limitations (Doc. 12 at 7-8) due to the “record of due diligence to obtain hidden and concealed record through FOIA in a protracted and painstaking process over months and into years does decisively confute the unsupported counterclaim thrown in by the State that ‘there is nothing in the record that suggests an external force prevented Petitioner from timely filing a federal habeas petition . . .'” (Id. at 7). Yet, neither in his Petition nor in his reply does Petitioner establish that he actually obtained any documents through his FOIA requests, what documents were obtained, when documents were obtained, how such documents relate to the claims made in this habeas matter, and why those documents were necessary to obtain to discover the factual predicate of any of his claims. Nor does Petitioner even assert when he made such FOIA requests and that the requests could not have been made during the statute of limitations period applicable under 28 U.S.C. § 2244(d)(1)(A).
Noteworthy is that Petitioner did accomplish a court filing in the Arizona Supreme Court (his Petition for Special Action) during AEDPA's statute of limitations period, demonstrating that Petitioner was able to effectuate court filings during the statute of limitations period. Further, Petitioner's filing of the Petition for Special Action was over three months after the superior court actions about which the Petition regarded, exemplifying that Petitioner has not been pursuing his rights diligently. Importantly, in 2018, when Petitioner filed his second/successive PCR proceedings, Petitioner's filing demonstrates that he had the Homeland Security Investigation reports, or at least the important parts thereof. Yet, Petitioner did not file his habeas proceedings until years later in 2021.
Further, Petitioner cannot rely upon completion of his second PCR proceedings as a basis for equitable tolling. The United States Supreme Court has held that a habeas petitioner may not simply await the completion of belated efforts to exhaust his state remedies, but should file a protective habeas petition, and request to stay its consideration pending exhaustion of state remedies. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005).
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 does not apply in these circumstances.
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)).
Petitioner's arguments that relate to innocence in his Petition and reply are essentially that the evidence against him at the time of his guilty plea was insufficient. Petitioner has not presented new and reliable evidence of innocence as required for the actual innocence/Schlup gateway. Accordingly, the actual innocence/Schlup gateway provides no relief to Petitioner for the untimely filing of these proceedings.
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' arguments that Petitioner waived all his claims by his guilty pleas, that his first claim is actually a Fourth Amendment claim that is not cognizable in federal habeas proceedings, and that his claims are procedurally defaulted without excuse (Doc. 6).
The undersigned therefore recommends that the Petition (Doc. 1) 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 Petition, a certificate of appealability should be denied. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) 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 15th day of December, 2021.