CV 18-08180-PCT-DLR (MHB)
REPORT AND RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT:
On July 30, 2018, Petitioner Darrick Michael Loff, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In an October 4, 2018 Order, the Court dismissed the habeas petition with leave to amend because Petitioner had failed to complete the court-approved form petition and had failed to identify a federal constitutional or statutory basis for each of his four claims. The Court gave Petitioner 30 days to file an amended petition that cured the deficiencies identified in the Order. After being granted a 30-day extension of time on November 16, 2018, Petitioner filed his Amended § 2254 Petition on December 13, 2018 (Doc. 8).
On May 15, 2019, Respondents filed a Limited Answer (Doc. 14), and Petitioner filed a reply on August 6, 2019 (Doc. 19). \\\ \\\
Petitioner was convicted by jury trial in Yavapai County Superior Court, case #CR 2011-80595, of one count each of offering for sale narcotic drugs, offering for sale marijuana, possession of narcotic drugs, and possession of marijuana. He was sentenced to concurrent terms of imprisonment, the longest of which was 15.75 years. (Doc. 9); See State v. Loff, 2014 WL 1713833 (Ariz. Ct. App. April 29, 2014). After an unopposed delay, appellate counsel filed an Anders brief, and requested an extension of time for Petitioner to file a pro se opening brief. (Exhs. E, F, G, H.) After the extension was granted, Petitioner filed his opening brief on January 15, 2014. (Exhs. I, J.) On April 29, 2014, the Arizona Court of Appeals "affirm[ed] [Petitioner's] convictions and sentences as corrected." See Loff, 2014 WL 1713833 (affirming Petitioner's convictions and sentences, but awarding Petitioner 163 days of presentence incarceration credit as opposed to the 162 days awarded by the trial court).
Thereafter, Petitioner filed a petition for review, "Addendum to Petition for Review," and a "Motion to Compel" in the Arizona Supreme Court. (Exhs. L, M, N.) On November 4, 2014, the Arizona Supreme Court summarily denied the petition for review and Motion to Compel. (Exh. O.) On December 30, 2014, Petitioner filed a "Motion for Clarification" in the Arizona Court of Appeals (Exh. P), as well as, a "Request for Judicial Review" in the Arizona Supreme Court (Exh. Q). The Court of Appeals took "no action" on the motion, as it did not "substantially comply with the Arizona Court Rules" (Exh. R). The Arizona Supreme Court denied the "Request" as an "unauthorized motion for reconsideration" (Exh. S).
While Petitioner was pursuing his direct appeal, on December 3, 2014, Petitioner filed a Notice of Post-Conviction Relief (PCR). (Exh. T.) Appointed counsel filed a motion to withdraw stating that he had completed review of the case and was unable to find any claims to raise in PCR proceedings. Counsel requested an extension of time for Petitioner to file a pro per PCR petition. (Exh. U.)
On May 5, 2015, Petitioner filed a "Supplemental Pro-Per Memorandum to Notice of Post Conviction Rule 32." (Exhs. V, W, X.) On July 30, 2015, the trial court denied the PCR petition. (Exh. Y.) Petitioner filed a Petition for Review in the Arizona Court of Appeals on August 11, 2015. (Exhs. Z, AA.) On March 8, 2017, the Court of Appeals granted review, but denied relief. See State v. Loff, 2017 WL 912014 (Ariz. Ct. App. March 8, 2017). Petitioner did not file a motion for reconsideration or petition for review to the Arizona Supreme Court. The Mandate issued on June 8, 2017. (Exh. CC.)
On April 23, 2018, Petitioner filed a document entitled, "Petition to Conduct DNA Testing Pursuant to A.R.S. § 13-4240." (Exh. DD.) In response, the State advised that the evidence in the case was destroyed pursuant to Arizona law and, as such, Petitioner's motion was moot. (Exh. EE.) The trial court denied Petitioner's motion on June 20, 2018. (Exh. GG.)
In his amended habeas petition, Petitioner raises four grounds for relief. In Ground One, he claims that his conviction was secured using evidence obtained in violation of the Fourth Amendment. In Grounds Two and Four, Petitioner claims that he received ineffective assistance of trial counsel, in violation of the Sixth and Fourteenth Amendments, when his attorney failed to challenge the state's use of illegally obtained evidence, reliance on perjured testimony, and failure to disclose exculpatory evidence (Ground Two) and failed to notify Petitioner that certain evidence was scheduled to be destroyed, thereby denying Petitioner the opportunity to conduct potentially exonerative testing (Ground Four). In Ground Three, Petitioner alleges that he was vindictively prosecuted, in violation of the Sixth and Fourteenth Amendments. \\\ \\\ \\\ \\\ \\\ \\\ \\\
In their Answer, Respondents contend that Petitioner's amended habeas petition is untimely and must be dismissed.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
"[T]he period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition." Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending Petitioner not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A state petition that is not filed, however, within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414.
A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition is not filed until later. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004). An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See Biggs, 339 F.3d at 1048; see also King v. Roe, 340 F.3d 821 (9th Cir. 2003) (The petitioner was "not entitled to tolling during the interval between the completion of one round of state collateral review and the commencement of a second round of review."). Moreover, filing a new petition for post-conviction relief does not reinitiate a limitations period that ended before the new petition was filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
The statute of limitations under AEDPA is subject to equitable tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for equitable tolling to apply, a petitioner must show "'(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way'" and prevented him from filing a timely petition. See id. at 648-49 (quoting Pace, 544 U.S. at 418).
The Court finds that Petitioner's amended habeas petition is untimely. After trial and sentencing, Petitioner appealed his convictions and sentences to the Arizona Court of Appeals and the Arizona Supreme Court. The Arizona Supreme Court denied review on November 4, 2014. Petitioner's convictions became final 90 days later - on February 2, 2015 - when the time expired for filing a petition for writ of certiorari in the United States Supreme Court. See 28 U.S.C. § 2244(d)(1)(A) (providing AEDPA statute of limitations begins "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"); Porter v. Ollison, 620 F.3d 952, 958-59 (9th Cir. 2010) ("When, on direct appeal, review is sought in the state's highest court but no petition for certiorari to the United States Supreme Court is filed, direct review is considered to be final when the certiorari petition would have been due, which is 90 days after the decision of the state's highest court.").
Petitioner, however, initiated post-conviction relief proceedings on December 3, 2014. Petitioner's PCR proceedings remained pending until the Arizona Court of Appeals granted review of Petitioner's Petition for Review, but denied relief, and the Mandate issued on June 8, 2017. The statute of limitations began running the next day and expired on June 11, 2018. Petitioner did not initiate his habeas proceedings until July 30, 2018. Accordingly, absent any equitable tolling, his amended habeas petition is untimely. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (federal habeas petition submitted one day late was properly dismissed as untimely under AEDPA, noting that a "missed" deadline "is not grounds for equitable tolling"); Hartz v. United States, 419 Fed.Appx. 782, 783 (9th Cir. 2011) (unpublished) (affirming dismissal of federal habeas petition where petitioner "simply missed the statute of limitations deadline by one day").
The Ninth Circuit recognizes that the AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). Tolling is appropriate when "'extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." Id.; see Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418. Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007).
In his amended habeas petition and reply, Petitioner fails to demonstrate - much less argue - that he has been diligently pursuing his rights and that an extraordinary circumstance stood in his way - or establish a "causal connection" between an extraordinary circumstance and his failure to file a timely petition. Rather, Petitioner contends that "because defendant retains his innocence there is no time bar." Petitioner also complains about the "lack of an adequate law library" which caused him to "get outside help."
Regarding Petitioner's pro se status, a petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.").
As to Petitioner's actual innocence assertion, in McQuiggin v. Perkins, 569 U.S. 383 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. "[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass ... the impediment [of] ... expiration of the statute of limitations." Id. at 386; see Lee v. Lampert, 653 F.3d 929, 931 (9th Cir. 2011). "[A] petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits." Lee, 653 F.3d at 932. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of new evidence, no juror acting reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin, 569 U.S. at 386 (quoting Schlup, 523 U.S. at 329).
To be credible, a claim of actual innocence requires a 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 - that was not presented at trial." Schlup, 513 U.S. at 324. "[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." Id. at 327.
Petitioner fails to provide any new evidence supporting his claim of actual innocence. Rather, Petitioner addresses the facts and evidence previously at issue in his state court proceedings, and makes speculative and conclusory statements regarding the lack of "DNA evidence submitted to show [he] possessed the illegal drugs" and "perjured testimony of witnesses." Petitioner's bare assertion of innocence is insufficient to serve as a gateway to overcome the statute of limitations time bar. Accordingly, Petitioner is not entitled to any equitable tolling. Petitioner's amended habeas petition is untimely.
Having determined that Petitioner's amended habeas petition is untimely, the Court will recommend that Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 8) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 8) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
DATED this 22nd day of January, 2020.
Honorable Michelle H. Burns
United States Magistrate Judge