JOHN Z. BOYLE, Magistrate Judge.
TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE
Petitioner Sheldon Roy Hanshaw has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
On September 13, 2008, Petitioner was sentenced. The trial court dismissed Petitioner's PCR petition on November 24, 2009. Petitioner did not submit a timely petition to the Arizona Court of Appeals. Petitioner's limitations period was tolled until December 29, 2009. The instant petition was due on December 29, 2010, absent equitable tolling, but it was not filed until November 21, 2014. Because there are no grounds for equitable tolling, the Court concludes that Petitioner's claims are untimely. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.
The Presentence Report includes a summary of the underlying facts of Petitioner's crimes:
(Doc. 14-1, Ex. F, at 23.)
On February 28, 2008, the State of Arizona charged Petitioner with three counts of class 2 dangerous Aggravated Assault, and one count of Misconduct Involving Weapons. (Doc. 14-1, Ex. A, at 3.) The State also alleged Petitioner had seven prior felony convictions. (Doc. 14-1, Ex. C, at 11.)
On July 30, 2008, Petitioner pleaded guilty to all four counts, without a plea agreement. (Doc. 14-1, Ex. E, at 19; Doc. 14-2, Ex. W, at 121-22.) The trial court advised Petitioner he could receive a total sentence of 120 years imprisonment, and that there were no agreements or assurances as to the sentence to be imposed. (Doc. 14-2, Ex. W, at 117.) The court also advised Petitioner: "You also understand that by entering into this plea, your only right to seek review of these proceedings is to file a petition for Post Conviction Relief within 90 days of sentencing, and if that is denied your only other avenue for relief would be the Court of Appeals. Do you understand that?" (Doc. 14-2, Ex. W, at 121.) Petitioner told the court he understood. (Id.) After conducting a plea colloquy, the trial court accepted Petitioner's guilty plea to all four counts as charged. (Doc. 14-2, Ex. W, at 128.)
On September 30, 2008, the court sentenced Petitioner. (Doc. 14-2, Ex. X, at 134.) Petitioner was sentenced to concurrent terms of 21 years' imprisonment for Counts 1, 2, and 3. (Id. at 166.) The court sentenced Petitioner to a consecutive term of 12 years imprisonment for Count 4. (Id.)
On October 22, 2008, Petitioner filed a pro se PCR Notice. (Doc. 14-1, Ex. H, at 34.) On May 19, 2009, Petitioner, through counsel, filed a memorandum in support of the petition for post-conviction relief. (Doc. 14-1, Ex. J, at 42.) Petitioner challenged the sufficiency of the factual basis of his plea and alleged that trial counsel provided deficient advice regarding the elements of the offenses. (Doc. 14-1, Ex. J, at 44-49.) On November 24, 2009, the court denied the petition. (Doc. 14-1, Ex. M, at 87-88.) No petition for review was filed.
On November 29, 2012, Petitioner filed a Motion for Correction of Error, pursuant to Rule 24.4 of the Arizona Rules of Criminal Procedure. (Doc. 14-2, Ex. N, at 3.) Petitioner challenged his flat-time sentence, community supervision, the court's reliance on his prior felony convictions, the imposition of a consecutive sentence, and the failure of the court to announce a minimum sentence. (Id.) On January 11, 2013, the trial court ruled that Petitioner's motion was a successive Rule 32 proceeding and dismissed the proceeding. (Doc. 14-2, Ex. O, at 22.)
On February 11, 2013, Petitioner filed a Petition for Review in the Arizona Court of Appeals. (Doc. 14-2, Ex. P, at 25.) The court granted review, but summarily denied relief. (Doc. 14-2, Ex. R, at 50.) The court held that Petitioner's "claims extended beyond correction of clerical mistakes; therefore, the trial court correctly addresses his motion as a petition for post-conviction relief." (Doc. 14-2, Ex. R, at 52.) The court further noted that because the "proceeding is successive and untimely, any claim other than one pursuant to Rule 32.1(d), (e), (f), (g), or (h), is barred or precluded." (Id., citing Ariz. R. Crim. P. 32.2(b) and 32.4(a).) The court held that Petitioner had "not established that any of his claims fall into the above exceptions." (Id.) On May 27, 2014, Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 14-2, Ex. S, at 54.) The petition was summarily denied on October 20, 2014. (Doc. 14-2, Ex. U, at 103.)
On November 21, 2014, Petitioner filed this habeas Petition. (Doc. 1.) On May 1, 2015, Respondents filed a Limited Answer to the Petition. (Doc. 14.) On June 26, 2015, Petitioner filed a Reply (Doc. 17) and Memorandum (Doc. 18). Petitioner raises the following grounds for relief:
(Doc. 1.)
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244.
The AEDPA imposes a one-year limitation period, which begins to run "from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
On September 13, 2008, Petitioner was sentenced pursuant to his pleas of guilty. (Doc. 14-2, Ex. X, at 166.) Petitioner had 90 days from that date to timely file an "of-right" petition for post-conviction relief. Ariz. R.Crim. P. 32.4(a) ("In a Rule 32 of-right proceeding, the notice must be filed within ninety days after the entry of judgment and sentence"). See Gonzalez v. Thaler, 132 S.Ct. 641, 656 (2012) ("[W]ith respect to a state prisoner who does not seek review in a State's highest court, the judgment becomes `final' under § 2244(d)(1)(A) when the time for seeking such review expires . . . .").
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). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed. See Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004). See also Ariz. R. Crim. P. 32.4(a) ("A proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred.").
On October 22, 2008, Petitioner filed a timely PCR notice. (Doc. 14-1, Ex. H, at 34.) The one-year deadline to file a federal habeas will be tolled while "a properly filed application for State post-conviction . . . review . . . is pending." 28 U.S.C. § 2244(d)(2). The trial court denied the petition on November 24, 2009. (Doc. 14-1, Ex. M, at 87-88.) Petitioner had 35 days to file a timely petition for review with the Arizona Court of Appeals. See Ariz. R. Crim. P. 32.9(c) (providing a 30-day deadline from "the final decision of the trial court on the petition for post-conviction relief or the motion for hearing"); Ariz. R. Crim. P. 1.3(a) (providing "five calendar days shall be added to the prescribed period" after service by mailing). Petitioner did not file a petition for review with the court of appeals. Petitioner's limitations period was tolled until December 29, 2009.
The statute of limitations was not tolled by Petitioner's Motion for Correction of Error filed on November 29, 2012. The Arizona Court of Appeals found this motion was "successive and untimely." (Doc. 14-2, Ex. R, at 52.) This filing was not a "properly filed" state action for post-conviction relief because it was untimely. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) ("[W]e hold that time limits, no matter their form, are `filing' conditions. Because the state court rejected petitioner's PCRA petition as untimely, it was not `properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2)."). Once the AEDPA limitations period expires, a subsequently filed state post-conviction proceeding cannot restart the statute of limitations. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that § 2244(d) "does not permit the reinitiation of the limitations period that has ended before the state petition was filed").
Here, the instant petition was due December 29, 2010, absent equitable tolling.
"A petitioner who seeks equitable tolling of AEDPA's 1-year filing deadline must show that (1) some `extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights." Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010)." Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). The petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048-49 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must show that "the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). "Indeed, `the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting Marcello, 212 F.3d at 1010).
In his Petition, Petitioner asserts he was "not aware that his sentence(s) were considered as flat-time . . . ." (Doc. 1 at 5.) In his Reply, Petitioner "denies he is not entitled to equitable tolling." (Doc. 17 at 2.) In his Points and Authorities, Petitioner asserts that his claims are newly discovered. (Doc. 18 at 7.) Whether equitable tolling is applied is reviewed on a claim-by-claim basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012) ("AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis"); Butler v. Long, 752 F.3d 1177, 1181 (9th Cir. 2014) (holding that petitioner was "entitled to equitable tolling" because § 2244(d)(1) applies to each claim on an individual basis).
Petitioner does not establish equitable tolling because Grounds One through Three are not newly discovered. These claims concern (1) whether counsel was ineffective by failing to advise Petitioner of the importance of oral pronouncement at sentencing and the possibility of consecutive or flat-time sentences, and (2) whether the trial court erred by failing to make oral pronouncements at sentencing. Here, the trial court advised Petitioner at his plea hearing that he could receive a sentence "of up to 120 years" imprisonment if the judge "stacked everything." (Doc. 14-2, Ex. W, at 116-17.) Petitioner was informed of the potential of community supervision when the trial court told him that "you would have to do a consecutive term of community supervision, which is like what we used to call parole . . . ." (Id. at 118.) During sentencing, the court announced "[w]ith regard to Count 4; however, I do think that a consecutive sentence is warranted in that matter." (Doc. 14-2, Ex. X, at 166.) The imposition of community supervision is explicitly stated in the sentencing minute entry. (Doc. 14-1, Ex. G, at 30.) Petitioner had the ability to ask his attorney and the court whether he was eligible for community supervision and whether the court was required to announce its application at sentencing. See Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) ("Time begins when the prisoner knows (or through reasonable diligence could discover) the important facts, not when the prisoner recognizes their legal significance.")."
Petitioner's claim that he was unaware the trial court was required to make oral pronouncements, even if true, does not justify equitable tolling. A petitioner's pro se status, ignorance of the law, and lack of representation during the applicable filing period do not constitute circumstances justifying equitable tolling because such circumstances are not "extraordinary." See Waldron-Ramsey, 556 F.3d at 1013 n.4 ("a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling"), cert. denied, 558 U.S. 897 (2009); 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."); Johnson v. United States, 544 U.S. 295, 311 (2005) ("[W]e have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness.").
Petitioner is not eligible for equitable tolling on Ground Four because it concerns a state legal ruling, not a "factual predicate of the claim" as required by in § 2244(d)(1)(D).
Petitioner's claims concerning sentencing are also not cognizable because they concern applications of state law. The gravamen of the Petition is that Petitioner recently learned he was subject to a flat-time sentence. Petitioner states that when he was "advised by the Arizona Department of Corrections" that his sentences would be served "flat time," he "immediately sought intervention from the trial court." (Doc. 18 at 8.) Whether Petitioner is subject to a flat-time sentence under state law is not cognizable on habeas corpus review. The habeas statute, 28 U.S.C. § 2254, "unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner `only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)).
Whether Petitioner is subject to a flat-time sentence under Arizona law is a state-law question. "[F]ederal habeas corpus does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Whether the trial court was required to advise him of his eligibility for community supervision under state law is a state procedural question. See Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) ("Federal habeas courts lack jurisdiction . . . to review state court applications of state procedural rules."). The Court is mindful that the grounds for equitable tolling under § 2244(d) are highly fact-dependent and considered on a case-by-case basis. See Holland v. Florida, 560 U.S. 631 (2010); Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003). Petitioner has not established that equitable tolling is warranted in this proceeding.
The Petition is untimely because it was not filed within the deadline established by 28 U.S.C. § 2244(d)(1). Absent equitable tolling or other exception, the Petition will be dismissed with prejudice, regardless of the margin of untimeliness. 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"); Lookingbill v. Cockrell, 293 F.3d 256, 265 (5th Cir. 2002) ("[w]e consistently have denied tolling even where the petition was only a few days late"); United States v. Locke, 471 U.S. 84, 100-01 (1985) ("If 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline . . . A filing deadline cannot be complied with, substantially or otherwise, by filing late—even by one day.").
This Petition was due on December 29, 2010. It was filed on November 21, 2014. The Petition is untimely.
An evidentiary hearing is not warranted regarding Petitioner's claims, including equitable tolling, because the record is sufficiently developed to resolve this question. A habeas petitioner asserting equitable tolling "should receive an evidentiary hearing when he makes `a good-faith allegation that would, if true, entitle him to equitable tolling.'" Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quoting Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir. 2003). Petitioner has not asserted grounds for equitable tolling, and an evidentiary hearing is not mandatory.
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that Petitioner's claims are untimely. The Court will therefore recommend that the Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
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 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely 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 to timely 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
