JAMES F. METCALF, Magistrate Judge.
Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 8, 2013 (Doc. 1). On September 5, 2013 Respondents filed their Answer (Doc. 9). Petitioner filed a Reply on October 9, 2013 (Doc. 10), and has supplemented the record with various documents (Doc. 18).
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:
(Exhibit D, Mem. Dec. 8/16/07 at 3-6.) (Exhibits to the Answer, Doc. #, are referenced herein as "Exhibit ___.")
On June 3, 2003, Petitioner was indicted on charges of first degree murder, and following remand to the grand jury, was again indicted on September 5, 2003. (Exhibit D, Mem. Dec. at 2-3.)
Petitioner was found incompetent to stand trial, based upon delusional beliefs of a widespread conspiracy against him, but on subsequent re-evaluation, was found competent to stand trial. (Id. at 3.)
Petitioner proceeded to a jury trial, testified on his own behalf in support of his defense theory of self-defense, including testifying that he had overheard the victim saying "it would be `nice' if [Petitioner] `disappeared.'" (Id. at 8.) The Arizona Court of Appeals described Petitioner's description of events on the day of the shooting as follows:
(Id. at 8-9.)
Petitioner was found guilty of first degree murder, and considering Petitioner's mental health as a mitigating factor the trial court sentenced him to life in prison with the possibility of parole after 25 years. (Id. at 10; Exhibit A, Sentence.)
Petitioner filed a direct appeal. Counsel was unable to find an appealable issue, and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related state cases, asking the court to review the record for error and seeking leave for Petitioner to file a supplemental brief. (Exhibit B, Opening Brief.)
Petitioner then filed a Supplemental Opening Brief (Exhibit C), arguing that counsel was ineffective for failing to investigate, obtain or present various evidence.
In a decision issued August 16, 2007, the Arizona Court of Appeals declined to reach Petitioner's claims of ineffective assistance, finding that they should properly be brought in a petition for post-conviction relief. (Exhibit D, Mem. Dec. at 10.) The court searched the record for, and found no reversible error. (Id. at 11.)
Petitioner did not seek further review. (Exhibit E, Order and Mandate.)
On November 20, 2007, more than 90 days after the conclusion of his direct appeal, Petitioner filed a motion to extend the time to file his petition for post-conviction relief (Exhibit F). The PCR court did not rule on this motion, and Petitioner has never filed anything further with the PCR court. (Exhibit G, Docket.)
Respondents assert that Petitioner's Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one year limitations period are barred and must be dismissed. Id.
Here, Petitioner's direct appeal remained pending through August 16, 2007, when the Arizona Court of Appeals denied his direct appeal. (Exhibit D.) Thereafter, Petitioner had 30 days to seek review by the Arizona Supreme Court. Ariz. R. Crim. P. 31.19(a) He did not do so. Accordingly, his conviction became final on Monday, September 17, 2007, 30 days after the Arizona Court of Appeals denied his appeal. Therefore, Petitioner's one year began running on September 18, 2007, and without any tolling expired on September 17, 2008, making his May 8, 2013 Petition more than four years and seven months delinquent.
The habeas limitations statute provides a later commencement date of "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).
However, Maples did not establish a new constitutional right, but simply acknowledged that for purposes of finding cause and prejudice to excuse a procedural default, a petitioner is not charged with the conduct of an attorney who abandons the representation without notice. While Petitioner might rely on Maples as a basis for cause to excuse a procedural default, he does not assert a claim that is itself based on Maples.
Thus, Petitioner's claim in his Petition is not founded on a constitutional right within the purview of 28 U.S.C. § 2244(d)(1)(D), and the finality of his conviction remains the proper commencement date for his habeas limitations period.
The AEDPA 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). This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).
Here, the only state filings by Petitioner after the denial of his direct appeal were his motion for indigent status and his motion to extend the time to file a petition for post-conviction relief. (Exhibit F.) Such filings do not, however, constitute an application for post-conviction relief.
It is true that under Arizona law, a petition for post-conviction relief is "pending" as soon as the notice of post-conviction relief is filed. Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 9/13/04) ("The language and structure of the Arizona postconviction rules demonstrate that the proceedings begin with the filing of the Notice.") See also Ariz. R. Crim. P. 32.4(a). But here, Petitioner did not file such a notice, rather only a motion to extend the time to do so.
Consequently, Petitioner is not entitled to any statutory tolling.
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but 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 his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
Ramirez v. Yates, 571 F.3d 993, 997 (9
Perhaps most importantly, Maples would not, in any event, apply to Petitioner. Petitioner makes no suggestion that any counsel abandoned him without notice. At most, Petitioner contends that trial and appellate counsel were deficient in pursuing his claims. Such garden variety negligence was rejected as a basis for cause and prejudice in Maples. "Negligence on the part of a prisoner's postconviction attorney does not qualify as "cause." Maples, 132 S.Ct. at 922. Rather, the attorneys in Maples had simply stopped working on the case, had obtained other employment, and left the petitioner believing he was been represented in the matter.
Petitioner fails to explain how appellate counsel's failure to adequately assert his claims on direct appeal precluded him from filing his habeas petition on a timely basis. Such failure might constitute a defense to a failure to exhaust state remedies, but Petitioner fails to show how it is relevant to the filing of his federal habeas petition.
"Where a habeas petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an "extraordinary circumstance beyond [his] control," and the deadline should be equitably tolled." Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). "However. . . . mental incompetence is not a per se reason to toll a statute of limitations. Rather, the alleged mental incompetence must somehow have affected the petitioner's ability to file a timely habeas petition." Nara v. Frank, 264 F.3d 310, 320 (3
A habeas petitioner must allege more than the "mere existence of physical or mental ailments" to invoke the equitable tolling of the AEDPA's statute of limitations. Rhodes v. Senkowski, 82 F.Supp.2d 160, 173 (S.D.N.Y.2000). Instead, a habeas petitioner has the burden of showing that mental health problems rendered him or her unable to file a habeas petition during the one year limitations period. Id. It is not sufficient to show that filing was rendered difficult, but rather Petitioner must show that it was rendered impossible.
Petitioner proffers nothing besides vague descriptions of depression and despondency, emotional states not at all uncommon among those serving a life sentence. It is true that Petitioner had initially been found incompetent to stand trial. But that was based on delusions, not depression. The problem was sufficiently resolved for Petitioner to be found competent to proceed to trial. And, Petitioner proffers nothing to suggest that such condition had reoccurred.
Moreover, the ability to file petitions during the limitations period is evidence that Petitioner's mental illness did not prevent him from filing a habeas petition. See Gaston v. Palmer, 417 F.3d 1030, 1035 (9th Cir. 2005), modified on other grounds, 447 F.3d 1165 (9th Cir. 2006) ("Because [petitioner] was capable of preparing and filing state court petitions [during the limitations period], it appears that he was capable of preparing and filing a [federal] petition during the time in between those dates.").
Not only had Petitioner managed to file his Supplemental Opening Brief (Exhibit C) in May, 2007, a year and a half after his conviction, and just three months before his one year began to run, but in November, 2007 (while his one year was running) he was able to file his Motion for Indigent Status and Motion for 60 Day Extension (Exhibit F). Each of these documents contained well reasoned, articulate arguments. Petitioner proffers nothing to show any variation in his mental capacity between that time and when he finally filed his habeas petition.
Nor does Petitioner proffer anything to show his diligence in the face of any incapacity. For example, Petitioner proffers nothing to show that the fog of his depression lifted only shortly before he filed the instant Petition, and had not lifted at any time earlier. Ordinarily, thirty days after elimination of a roadblock should be sufficient for a diligent petitioner to file his habeas petition. See Guillory v. Roe, 329 F.3d 1015, 1018, n.1 (9th Cir. 2003).
This circuit has found that a lack of access to legal resources may be an extraordinary circumstance warranting equitable tolling. See, e.g., Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (finding that unavailability of a copy of the AEDPA in a prison law library could be grounds for equitable tolling). However, in cases where courts have found that an extraordinary circumstance might exist, the petitioner always pointed to specific materials to which he did not have access. See, e.g., Roy v. Lampert, 465 F.3d 964, 974 (9th Cir. 2006) (finding that lack of access to AEDPA materials and Oregon law books may be an extraordinary circumstance); Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006) (finding that lack of access to Spanish language legal materials or assistance could entitle habeas petitioner to equitable tolling).
Here, Petitioner points to no specific deficiencies, nor does he explain how they precluded him from filing on time. Petitioner's ineffective assistance claims had already been largely spelled out by him in his supplemental opening brief on direct appeal. He does not suggest that additional legal resources were needed to present them, or his prosecutorial misconduct claims, to this Court. Petitioner's habeas petition does not turn on novel points of law, and indeed contains almost no legal references.
Nor does Petitioner explain how limitations on the space available to him precluded a timely filing. The undersigned is aware the Arizona Department of Corrections routinely limits prisoners to the volume of materials they can maintain in their cell at a given time. But they also permit prisoner's to rotate their materials in and out of storage, and despite these limitations other prisoners routinely file timely state and federal briefs and petitions. See Arizona Department of Corrections Departmental Order 902.10 (Legal Property), available at http://www.azcorrections.gov/Policies/900/ 0902.pdf, last accessed 2/20/14.
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude "a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence." McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013). To invoke this exception to the statute of limitations, 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 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This exception, referred to as the "Schlup gateway," applies "only when a petition presents `evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Id. at 1936 (quoting Schlup, 513 U.S. at 316).
Lee v. Lampert, 653 F.3d 929, 938 (9
The Respondents have not provided the complete record at trial. However, the Arizona Court of Appeals summarized the evidence from trial, including Petitioner's defense. Petitioner does not suggest any deficiency in those summaries, but merely contends they represent "the states one sided and inacurate (sic) view." (Reply on Mot., Doc, 22 at 5.) Given the nature of the new evidence suggested by Petitioner, the undersigned finds that a review of the transcripts themselves is unnecessary to disposing of Petitioner's assertions of actual innocence.
Petitioner's briefs do not explicitly assert his actual innocence as a basis to avoid the statute of limitations bar. (See Petition Doc. 1 at 7; Reply, Doc. 10, generally.) Petitioner does continue to argue that he shot his uncle in self-defense (albeit after admittedly following his uncle from room-to-room, while he was armed with only a sheathed knife, and ultimately shooting him while he was seated. (See Reply, Doc. 10 at 5-7.) However, Petitioner proffers no new reliable evidence in support of his self-defense claim.
In his Motion for Reconsideration regarding Submitting Additional Exhibits (Doc. 18), Petitioner supplemented the record with a variety of documents which Petitioner conceded "doesn't prove innocence; however it shows intent to deceive by all parties, jelousy [sic] and hatred by Ricky/deceased," etc. (Doc. 18 at 4.)
However, the bad blood between the family members was already plainly before the trial jury. (See Exhibit D, Mem.Dec. at 4-5, 7-8.) Indeed, the vast majority of information now proffered by Petitioner revolves around his attempts to paint his relatives as the malfeasors in their relationships. In particular, Petitioner provides a transcript of an interview of Petitioner's uncle, Richard Perlotto, Sr. (Motion, Doc. 18 Ex. D-R), which solely relates to the family dealings. Similarly, his Exhibit E-R is a narrative and a transcript of an interview of Petitioner's cousin, Carla Perlotto relating various reasons for a poor relationship between Petitioner and the victim, as well as family dealings. Petitioner's Exhibit F-R is a transcript of an interview with Petitioner's aunt, Nancy Perlotto, again addressing family dealings. His Exhibit G-R is a transcript of an interview with Petitioner's grandmother, Lois Stephens, on family dealings. Exhibit H-R is a copy of the report from Adult Protective Services concerning their investigation of the complaints of abuse against Petitioner. Exhibit I-R.is the police report on the Petitioner's against the victim for breaking into the home. Exhibit K-R is a transcript from the grand jury including testimony about the burglary report and the dispute over the care of Petitioner's grandmother. Exhibit L-R is a grand jury transcript with testimony concerning Petitioner's financial condition and dealings with his grandmother, the victim's access to the home and the purported burglary. Exhibit N-R is two transcripts of conversations between Petitioner and his grandmother concerning her leaving the home to go to his aunt's house, and the family dealings. Exhibit O-R is several emails and letters from the victim accusing Petitioner of various misdeeds and regarding the family dealings.
A reasonable juror could be fully convinced that Petitioner's relatives were completely in the wrong in their dealings with Petitioner, and yet still have convicted Petitioner of first degree murder. The evidence at trial, even Petitioner's own version of the facts as presented in his testimony at trial, were consistent with the prosecution's theory that rather than acting in self-defense, Petitioner repeatedly shot his uncle as the uncle retreated through the house and tried to escape. The jury was already presented with evidence that the uncle had broken into the home. Additional information that the uncle or other family members were behaving badly toward Petitioner or his grandmother prior to the time of the shooting would not cause the undersigned to view the events at the time of the shooting differently so as to lose confidence in the outcome of the trial. Indeed, to the contrary, such evidence could be viewed as lending credence to the prosecution's theory that Petitioner did not act in self-defense, but out of animosity toward his uncle.
Petitioner suggests that his newly proffered evidence indicates conflicts with the testimony or other statements by witnesses, and thus reduces their credibility. However, most of these purported inconsistencies similarly focus on events prior to the shooting such as the various relationships and dealings among the family, and would not alter the jury's view of the critical events at the time of the shooting.
Petitioner's Exhibit J-R is the transcript of an interview of Officer Knowles who was involved in the homicide investigation, which Petitioner purports shows that the gun had been moved at the scene and had unknown DNA on it and no prints from Petitioner or the victim. Conversely, Exhibit K-R is a transcript from the grand jury including testimony that nothing at the scene had been touched before photographs were taken. However, Petitioner fails to suggest how any of that shows actual innocence. At best, he argues that his information reveals "[d]eliberate concealing, altering and destroying evidence, perjuries, threatening witness . . . are a reflection of how weak the states case [was]. Sloppy forensics, cataloging evidence problems, perjured testimony by police, forensics." (Motion, Doc. 18 at 3.) Here, however, there was no dispute that Petitioner had shot the victim, or about the weapon he had used. Mishandling of the gun might have been unprofessional, but it does not establish Petitioner's actual innocence.
Exhibit L-R is a grand jury transcript with testimony concerning the pillow in the master bedroom with the bullet hole through it. Exhibit M-R is a transcript of an interview of the criminalist concerning the gunshot through the pillow. In his Reply, Petitioner argues that given the angle of trajectory through the pillow, he would have had to have been standing on a ladder at the time he shot through the pillow. (Doc. 10 at 6.) Petitioner's logic is unclear. He testified at trial that the victim "threw a pillow at Appellant" resulting in Petitioner again shooting. (Exhibit D, Mem. Dec. at 9.) He does not argue that he did not shoot the pillow. It is unclear how Petitioner would purport to calculate the angle of a shot going through a pillow being thrown, which could have been intercepted by the bullet at any number of angles of rotation. More importantly, Petitioner does not suggest how, in light of his own testimony, the precise angle of the shot would establish his actual innocence.
In sum, Petitioner, at best, asserts various perceived weaknesses in the prosecution's evidence. A finding of "actual innocence" is not to be based upon a finding that insufficient evidence to support the charge was presented at trial, but rather upon affirmative evidence of innocence. See U.S. v. Ratigan, 351 F.3d 957 (9th Cir. 2003) (lack of proof of FDIC insurance in a federal bank robbery case, without evidence that insurance did not exist, not sufficient to establish actual innocence). Moreover, an actual innocence analysis does not invite a simple reconsideration of the evidence at trial, but requires consideration of new evidence. "To meet this standard, [the Petitioner] must first furnish `new reliable evidence . . . that was not presented at trial.'" Griffin v. Johnson, 350 F.3d 956, 961 (9
Petitioner fails to meet his burden of providing this Court with new "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence," Lee, 653 F.3d at 938, showing his actual innocence.
Petitioner's one year habeas limitations period commenced running on September 18, 2007, and expired on September 17, 2008, making his May 8, 2103 Petition more than four years and seven months delinquent. Petitioner has shown no basis for statutory tolling, and no basis for equitable tolling or actual innocence to avoid the effects of his delay. Consequently, the Petition must be dismissed with prejudice.
Respondents also argue that Petitioner's state remedies were not properly exhausted and are procedurally defaulted. Because the undersigned finds the Petition plainly barred by the habeas limitations period, the undersigned does not reach this defense.
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9
