MICHELLE H. BURNS, Magistrate Judge.
TO THE HONORABLE ROSLYN O. SILVER, UNITED STATES DISTRICT COURT:
Petitioner Donald Love, 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 (Doc. 1) and a Supplement and Memorandum in support thereof (Docs. 2, 3). Respondents filed an Answer and Petitioner filed a Reply (Docs. 11, 12).
Petitioner's habeas petition references two Maricopa County Superior Court cause numbers: CR2008-007760-009 and 2008-009328-004.
On September 8, 2008, the Maricopa County Grand Jury issued a multi-defendant, multi-count indictment, which charged Petitioner with 15 crimes: Count 1, conspiracy, a class 2 felony; Count 2, illegally conducting an enterprise, a class 3 felony; Counts 38, 49, 308, 319, 325 and 386, use of a wire in a Chapter 23 offense, class 4 felonies; Counts 39 and 50, attempted fraudulent schemes and artifices, class 3 felonies; Count 232, offer to sell or transfer cocaine, a narcotic drug, a class 2 felony; Counts 233 and 368, use of a wire in a drug related transaction, class 4 felonies; Count 366, solicitation of an offer to sell or transfer a narcotic drug, a class 4 felony; and Count 395, offer to sell or transfer marijuana, a class 4 felony. (Exh. A at 1-3.) On October 3, 2008, the State filed an allegation of historical priors—that Petitioner had three prior non-dangerous felony convictions, specifically, a 2003 class 6 felony conviction for possession of marijuana; a 2003 class 4 felony conviction for forgery; and a 1997 class 3 felony conviction for assisting a criminal syndicate. (Exh. B at 1-2.) On October 22, 2008, the State moved to amend the indictment to allege that the crimes in all counts were committed with the intent to promote, further, or assist any criminal conduct by a criminal street gang. (Exh. C at 1-3.) On April 16, 2009, the State filed an allegation of aggravating circumstances. (Exh. D.)
On September 1, 2009, Petitioner entered a plea agreement in which he pled guilty to amended Count 232, offer to sell cocaine, a narcotic drug, a class 2 felony with one prior felony conviction. (Exh. E at 1.) The plea agreement stipulated to a term of 15.75 years of imprisonment, with entry of the plea contingent upon entry of a guilty plea in cause number CR2008-009328-004. (
(Exh. K at 2.)
On September 29, 2009, the trial court sentenced Petitioner, in accordance with the plea agreement, to an aggravated term of 15.75 years of imprisonment. (Exh. I at 2; Exh. LLL at 5-6.) That same day, Petitioner received and signed a notice of rights of review. (Exh. J.)
On December 16, 2008, the Maricopa County Grand Jury issued another multi-defendant, multi-count indictment, which charged Petitioner with eight more crimes: Count 1, conspiracy, a class 2 felony; Count 2, illegally conducting an enterprise, a class 3 felony; Count 3, assisting a criminal street gang; Counts 4 and 5, using a building for the sale, manufacture or distribution of dangerous drugs, class 4 felonies; Count 79, offer to sell or transfer marijuana, a class 4 felony; Count 81, use of a wire in a drug related transaction; and Count 318, misconduct involving weapons, a class 4 felony. (Exh. L at 1-4.) On January 14, 2009, the State filed an allegation regarding Petitioner's repetitive offender status. (Exh. M.) On March 17, 2009, the State filed an allegation that Petitioner is a serious drug offender under A.R.S. § 13-3410 and a request for an aggravation hearing. (Exh. N.)
On September 1, 2009, Petitioner entered a plea agreement, pleading guilty to amended Count 2, illegal control of an enterprise, a class 3 felony, in exchange for the State dismissing all other counts and sentencing allegations in this cause number. (Exhs. O and P.) Additionally, the State agreed to "file no charges as to this defendant regarding the shootings at 7th Avenue and Broadway" as reflected in Phoenix Police DR 2008-80393181 and "shall not file any further charges arising out of the computer seized in this investigation as to this defendant." (Exh. O at 1; Exh. P at 2.) The trial court advised Petitioner in open court of "all pertinent constitutional rights and rights of review." (Exh. P at 1; Exh. KKK at 7.) The factual basis for the plea was sealed pursuant to a previous court ruling. (Exh. P; Exh. Q at 1-2; Exh. KKK at 9-10.) According to the presentence report, the facts underlying this conviction are as follows:
(Exh. K at 1.)
On September 29, 2009, the trial court, in accordance with the plea agreement, placed Petitioner on intensive probation for 3 years upon absolute discharge from the sentence imposed in CR2008-007760. (Exh. O at 1; Exh. R at 2; Exh. LLL at 7-8.)
On November 4, 2009, Petitioner filed a timely notice of post-conviction relief (PCR) in both cause numbers. (Exh. S.) On December 16, 2009, the trial court appointed one PCR counsel for both cause numbers. (Exh. T.)
On October 27, 2010, PCR counsel filed a motion for an extension of time. (Exh. U.) The trial court granted the extension the next day. (Exh. V.) On November 1, 2010, Petitioner filed a letter to the court, on which the court took no action because Petitioner was represented by counsel. (Exhs. W and X.) On November 24, 2010, PCR counsel filed a request for a second extension, which the trial court granted on December 2, 2010. (Exhs. Y and Z.)
On January 18, 2011, PCR counsel filed a notice of completion, alerting the trial court that "having written to Petitioner and spoken with him by telephone, having reviewed the relevant transcripts and court record herein is unable to find a tenable issue to submit to this Court pursuant to Ariz. R. Crim. P. 32." (Exh. AA at 1.) On January 19, 2011, the trial court granted Petitioner time within which to file a pro per PCR petition. (Exh. BB.) On February 1, 2011, Petitioner filed a request with the trial court for preparation of the record, complaining that defense counsel had not produced the entire file. (Exh. CC.) On February 11, 2011, the trial court ordered PCR counsel to produce the file, and on February 14, 2011, counsel filed a notice of compliance with the court, avowing she had made all documents available to Petitioner. (Exhs. DD and EE.) On February 23, 2011, the trial court granted Petitioner an additional extension of time to file a pro per PCR petition. (Exh. FF.)
On February 24, 2011; March 7, 2011; March 8, 2011; and March 21, 2011, Petitioner filed various motions, including a request to substitute advisory counsel, and motions for more preparation of the defense file, such as audio recordings and additional disclosure from the State, as well as a "re-calculation of the due date" to file his pro per PCR petition. (Exh. GG.) On March 28, 2011, the trial court ruled, in pertinent part:
IT IS ORDERED granting the defendant an extension of thirty (30) days to file his pro per Petition for Post-Conviction Relief. No further extensions will be given absent a showing of extraordinary circumstances.
IT IS FURTHER ORDERED denying the remainder of defendant's motions. (Exh. HH.)
Despite the grant of an additional time, 30 days later, Petitioner still had not filed a PCR petition. However, on April 6, 2011; April 25, 2011; and June 23, 2011, Petitioner filed more motions and letters to the court, including a motion to "expand time" to file his pro per PCR petition. (Exh. II.) On July 11, 2011, the trial court granted Petitioner yet another 30 days to file his petition. (Exh. JJ.) Thirty days later, Petitioner had still filed no PCR petition, but on August 3, 2011, and August 25, 2011, had filed more letters and motions, including another request for an extension of time to file the PCR petition. (Exh. KK.) On August 30, 2011, the trial court gave Petitioner another 30 days. (Exh. LL.)
On September 28, 2011, Petitioner finally filed a pro per PCR petition raising one ground of ineffective assistance of counsel (IAC) during his "second pretrial settlement conference" (in cause number CR 2008-009328). (Exh. MM at 22-25.) Petitioner contended that his counsel "`idley stood by' through the August 13th, 2009, proceeding and `
IT IS ORDERED denying the Defendant's Petition for Post-Conviction Relief. (Exh. UU.)
On April 9, 2012, Petitioner filed an untimely "motion to expand the time" to file a petition for review. (Exh. VV.) Petitioner never filed a petition for review in the Arizona Court of Appeals. However, 2 years later, on May 22, 2014, Petitioner filed an untimely "motion for rehearing" regarding the March 5, 2012, dismissal of his first PCR. (Exh. WW.) On July 8, 2014, the trial court dismissed this motion for rehearing as both failing to "set forth any factual or legal basis to support a reconsideration" of the previous ruling, and, additionally, because the request was untimely. (Exh. XX.) Petitioner did not file a petition for review in the Arizona Court of Appeals.
Meanwhile, on August 15 and 21, 2012, Petitioner filed two "Notice[s] to the Record" regarding his "efforts" to obtain relief pursuant to
On May 5, 2014, Petitioner filed an untimely second PCR notice, claiming "newly discovered evidence." (Exh. ZZ.) On June 12, 2014, the trial court dismissed the second PCR:
(Exh. AAA.)
Petitioner responded to this dismissal by filing motions for a change of judge on June 20 and 27, 2014, which the court denied on July 28, 2014. (Exhs. BBB and CCC.) Petitioner also filed motions for rehearing on June 22 and 27, 2014, and it does not appear from the record that they were ever ruled upon. (Exhs. DDD and EEE.) On August 7, 2014, Petitioner filed a petition for special action in the court of appeals. (Exh. FFF.) The court of appeals summarily dismissed the special action petition on August 12, 2014. (Exh. GGG.) On September 2, 2014, Petitioner filed a petition for review from the denial of his special action in the Arizona Supreme Court, which that court denied on January 20, 2015. (Exh. HHH.)
On May 21, 2015, Petitioner filed the instant habeas petition seeking relief on six grounds: 1) Petitioner's guilty plea was involuntary due to "inappropriately coercive factors of inducement;" 2) "judicial and prosecutorial misconduct" and IAC prevented Petitioner from voluntarily waiving constitutional rights when pleading guilty; 3) post-conviction judge should have been reassigned; 4) evidentiary hearing required on "colorable" claim; 5) trial judge denied an evidentiary hearing and should have recused himself; and 6) IAC of post-conviction counsel and "newly discovered material facts." (Doc. 1 at 6-11.)
In their Answer, Respondents contend that Petitioner's habeas petition is untimely and, as such, must be denied and 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.
An "of-right" petition for post-conviction review under Arizona Rule of Criminal Procedure 32, which is available to criminal defendants who plead guilty, is a form of "direct review" within the meaning of 28 U.S.C. § 2244(d)(1)(A).
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);
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.
The statute of limitations under the AEDPA is subject to equitable tolling in appropriate cases.
The Court finds that Petitioner's Petition for Writ of Habeas Corpus is untimely. On September 29, 2009, the trial court sentenced Petitioner under the plea agreements. By pleading guilty, Petitioner waived his right to a direct appeal, and had 90 days to file an "of-right" petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. Petitioner filed a timely notice of post-conviction relief on November 4, 2009, thereby tolling the limitations period on that date.
On April 9, 2012, Petitioner filed an untimely "motion to expand the time" to file a petition for review (Exh. VV), and on May 22, 2014, filed an untimely "motion for rehearing" regarding the March 5, 2012, dismissal of his PCR petition (Exh. WW). On July 8, 2014, the trial court dismissed the motion for rehearing as both failing to "set forth any factual or legal basis to support a reconsideration" of the previous ruling and because the request was untimely. (Exh. XX.) Petitioner never filed a petition for review in the Arizona Court of Appeals.
Thus, Petitioner's case became final on April 4, 2012 — the day the time expired for filing a petition for review in the Arizona Court of Appeals of the March 5, 2012 denial of his of-right PCR petition. (Exh. UU.)
Petitioner is not entitled to statutory tolling. In addition to the untimely pleadings filed regarding the trial court's March 5, 2012 denial of Petitioner's "of-right" petition for post-conviction relief, Petitioner filed an untimely second PCR notice on May 5, 2014. (Exh. ZZ.) The state court dismissed it as both untimely and groundless under Rule 32. (Exh. AAA.) An untimely petition is not "properly filed," and does not toll the statute of limitations.
In sum, Petitioner filed the instant habeas petition more than two years after the 1-year limitations period expired. The Petition is therefore untimely.
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.
Petitioner asserts no valid reason for the untimeliness of his habeas petition, and therefore demonstrates no entitlement to equitable tolling. And, 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.
Having determined that Petitioner's habeas petition is untimely, the Court will recommend that Petitioner's 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 fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court.
