REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
Petitioner Anthony Michael Mendez, an inmate currently incarcerated in the Arizona State Prison, Lewis Complex, in Buckeye, Arizona, has filed a pro se Petition for a Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. §2254 (Doc. 1). Respondents filed a Limited Answer (Doc. 10), and Petitioner has not filed a Reply. Petitioner raises four claims in his habeas petition, that Respondents assert are untimely, and, in any event, procedurally defaulted.
BACKGROUND
On March 6, 2000, Petitioner was indicted on one count of First Degree Murder, a class 1 dangerous felony, and one count of Attempted First Degree Murder, a class 2 dangerous felony. (Doc. 10, Exh. A.1) A jury convicted Petitioner as charged, and the trial court sentenced Petitioner to life on the first degree murder conviction, and 10.5 years in prison on the attempted murder conviction, with the life sentence to run consecutive to the 10.5-year sentence. On appeal, the following facts of Petitioner's case were found by the Arizona Court of Appeals:
The defendant's mother Jenny, and her fiancé, Gabe, had been together for nine and a half years in a "family-type relationship" with the defendant and his sister, Monique. Although Gabe was not the biological father of either Monique or the defendant, he functioned as their father within the household.
On the evening of the murder, Gabe and Jenny ate dinner at home with the defendant and Monique. After dinner, Gabe and Jenny left the house to take leftovers to Jenny's mother and Gabe's mother. When they returned, the defendant had showered and was in his room getting ready for bed while Monique was finishing the dinner dishes.
Monique then showered, joined Jenny and Gabe to watch television in the living room, and went to bed at 8:30 p.m. Jenny retired to the master bedroom around 9:15 p.m. Gabe went to bed around 10:15 p.m. He slept in the living room on a makeshift bed for medical reasons.
Before going to bed, Gabe walked through the house and armed the house alarm system. Gabe was awakened by "two sharp punches in [his] back." When he opened his eyes, he saw the defendant standing over him and yelled, "What the fuck are you doing?" The defendant said nothing but jumped over him and ran through the dining room in to the kitchen and down the hallway, where Gabe lost sight of him.
Gabe then heard Jenny screaming, "Anthony. No, Anthony." Gabe tried to get up but could not. He then saw the defendant run to the front living room door holding a knife, followed by Jenny, who was screaming, crying, and yelling, "Babe, get Anthony."
When Gabe finally managed to force himself upright, he approached Jenny. At the same time, the defendant dropped the knife, went through the kitchen, deactivated the alarm system, and left the house. Gabe laid Jenny on the living room floor and ran to lock the carport door. He yelled for Monique and went to get the phone in the master bedroom to call 911.
By the time the paramedics reached Jenny, she was dead. An autopsy established that she had received five knife wounds, one of which pierced her heart. Gabe, who survived the attach, was stabbed twice behind the left shoulder blade.
The defendant spent the rest of the night at a friend's house and went to school the next day. He appeared at the attendance office and said that he "needed to talk to somebody." He informed the principal that he had arrived home around midnight and that as he prepared for bed he heard a noise and found a "black man" stabbing his mother. He chased after the man and then spent the night at his friend's house because he was afraid to go home. He was afraid that people would think "that he did it." He also called his grandmother from the office and told her that "he didn't do it."
(Exh. G.)
The appellate court affirmed Petitioner's conviction and sentence, denying Petitioner's claims that the trial court erred in admitting certain evidence, erred in denying a motion for new trial, erred in denying a motion for mistrial, and erred in refusing to instruct the jury on lesser included offenses. (Exhs. D, G.) Petitioner filed a petition for review in the Arizona Supreme Court, and on February 17, 2004, review was summarily denied. (Exh. I.)
On August 7, 2013, Petitioner filed his first notice of post-conviction relief, claiming that the recent United States Supreme Court case, Miller v. Alabama, 132 S.Ct. 2455 (2012), decided June 25, 2012, made his sentence of life imprisonment unconstitutional. (Exh. J.) The court then ordered briefing on the retroactive applicability of Miller, and "whether there is a presently cognizable claim for relief." (Exh. K.) After briefing and oral argument, the court denied relief, with the condition that the Arizona Department of Corrections set a specific date for parole eligibility for Petitioner. (Exhs. O, P.) Petitioner then filed a petition for review in the Arizona Court of Appeals. (Exh. Q.) Review was granted, but relief denied. (Exh. T.) The Court explained that the Arizona legislature had recently passed a law that provided parole eligibility for juveniles sentenced to life imprisonment, and that, "a State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." (Id.) Petitioner then filed a petition for review in the Arizona Supreme Court, which was summarily denied on November 15, 2016. (Exh. X.)
On January 25, 2017, Petitioner filed another notice of PCR in the trial court, asserting that a significant change in the law, specifically that Petitioner's sentence is unconstitutional pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012), Montgomery v. Alabama, 136 S.Ct. 718 (2016), and State v. Valencia/Healer, 386 P.3d 392 (Ariz. 2016) because, although Petitioner was not sentenced to "natural life," he was sentenced to the equivalent of a natural life sentence without a finding of irreparable corruption. (Exh. Y.) The trial court appointed counsel to represent Petitioner, and other defendants who were juveniles at the time of their sentencing and raised similar Miller issues, and consolidated the cases before one judge. (Exh. Z.) The court then ordered briefing on the issues. (Exh. AA.) As of the date of this Report and Recommendation, the case has been stayed by the trial court to await a ruling of from the United States Supreme Court, that accepted certiorari in Valencia/Healer. See, State of Arizona v. Mendez, CR 2000-003761; Minute Entry, Aug. 29, 2017 (Az.Sup.Ct.).
On January 30, 2017, Petitioner filed his habeas petition in this Court. (Doc. 1.) He raises four claims: ground one — trial counsel was ineffective by failing to allow Petitioner to testify at trial, failing to argue the unconstitutionality of the charges and sentencing statutes, and failing to raise the mitigating factors of physical, emotional, and psychological abuse; ground two — Petitioner's sentences constitute cruel and unusual punishment; ground three — Petitioner's sentences are excessive; and ground four — Petitioner's convictions and sentences violate the Double Jeopardy Clause. (Doc. 1 at 6-9.)
LEGAL ANALYSIS
I. Timeliness under the AEDPA.
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 shall 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), rev'd on other grounds sub nom., Evans v. Chavis, 546 U.S. 189 (2006). 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 Cross v. Sisto, 676 F.3d 1172, 1179 (9th Cir. 2012) ("Petitioners are not entitled to statutory tolling between rounds of state [post-conviction] petitions.").
Petitioner timely appealed his judgment and conviction, and that proceeding concluded when the Arizona Supreme Court denied review on February 17, 2004. Petitioner thereafter had 90 days to file a petition for writ of certiorari in the United States Supreme Court, which he failed to do. Thus, the AEDPA limitation period began running on May 18, 2004, and expired on May 18, 2005. Petitioner did not filed his habeas petition until January 30, 2017, more than 11-years late.
Petitioner's initiation of post-conviction relief proceedings on August 7, 2013, did not toll or restart the limitation period, as it had already expired 8-years earlier. A post-conviction proceeding initiated after the statute of limitations has already run does not re-start the limitations period. See Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003); 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. Id. at 69 (quoting Pace, 544 U.S. at 418). Tolling is appropriate when "`extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." 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"). "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 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).
With respect to grounds one and four of Petitioner's habeas petition, ineffective assistance of counsel and double jeopardy, it is clear that they are untimely claims, and Petitioner does not demonstrate, or even claim, that he is entitled to equitable tolling. This Court will recommend that those claims be denied and dismissed with prejudice.
With respect to grounds two and three of Petitioner's habeas petition, this Court will also recommend that those claims be denied and dismissed with prejudice. The AEDPA provides that the statute of limitations may run from "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." 28 U.S.C. §2244(d)(1)(C). Miller was decided on June 25, 2012; thus, Petitioner had one-year from that date, June 25, 2013, to file his Eighth Amendment sentencing claims. Petitioner did not file his first PCR petition raising the Miller claims until August 7, 2013. Thus, the statute of limitations had already run, even if by less than two months. See Dodd v. United States, 545 U.S. 353, 360 (2005) (limitations period runs from date on which right was initially recognized by the Supreme Court). Even though the state court reviewed Petitioner's claim on the merits, that review period does not revive a statute of limitations that has already expired. Petitioner does not demonstrate, much less claim, entitlement to equitable tolling. Thus, claims two and three of Petitioner's habeas petition are barred by the statute of limitations.
CONCLUSION
For the foregoing reasons, the Court finds Petitioner's habeas petition is untimely and should be dismissed. Thus, the Court will therefore recommend that the petition be denied and dismissed. IT IS THEREFORE RECOMMENDED:
That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) 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 dismissal of the habeas petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (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.
