DEBORAH M. FINE, Magistrate Judge.
Petitioner Cedric Cleon Frater ("Petitioner" or "Frater"), is currently incarcerated in the in the Arizona State Prison Complex in Florence, Arizona, serving a 14 year imprisonment sentence arising from convictions in the Maricopa County Superior Court, case #CR 2011- 123789, for three counts of sale or transportation of marijuana pursuant to a plea agreement. Petitioner filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") (Doc. 1) on May 19, 2016, and an Amended Petition ("Amended Petition) (Doc. 7) on June 21, 2016. In an Order on June 28, 2016 (Doc. 8), the Court required an answer to the Amended Petition. Respondents filed a Limited Answer (Doc. 12) asserting that the Petition should be dismissed. Petitioner did not file a reply. For the reasons below, undersigned recommends that the Petition be denied as untimely because it was filed more than two and a half years after AEDPA's 1-year statute of limitations expired.
On May 22, 2012, Petitioner plead guilty to three counts of Sale or Transportation of Marijuana, and on July 10, 2012
(Exhibit G; Doc. 12-3 at p. 9-10).
On March 15, 2013, Petitioner filed an untimely "of-right" PCR notice (Exhibit H; Doc. 12-3 at p. 11-14). Petitioner's bases and argument were brief:
(Exhibit H; Doc. 12-3 at p. 13-14). Despite the reference to such, Petitioner did not file any exhibits or affidavits (Id.).
On April 23, 2013, the trial court summarily dismissed the notice as untimely (Exhibit I; Doc. 12-3 at p. 15-17). The trial court wrote:
(Id.) Petitioner did not seek review at the Arizona Court of Appeals (Doc. 7 at p. 5).
On May 16, 2013, Petitioner filed a second PCR notice and petition (Exhibits J, K; Doc. 12-3 at p. 18-20, Doc. 12-3 at p. 11-37). Petitioner raised two claims:
(Exhibit K; Doc. 12-3 at p. 11-37). On June 7, 2013, Petitioner additionally filed a "Motion to Allow Amendment to Post-Conviction Relief Petition; Successive Petition" (Exhibit L; Doc. 12-3 at p. 38-52).
On June 17, 2013, the trial court summarily dismissed Petitioner's second PCR notice and petition, stating as follows:
(Exhibit M; Doc. 12-3 at p. 53-55). On July 22, 2013, the trial court summarily denied Petitioner's "Motion to Allow Amendment to Post-Conviction Relief Petition; Successive Petition" (Exhibit N; Doc. 12-3 at p. 56-57). Petitioner did not seek review at the Arizona Court of Appeals (Doc. 7 at p. 5).
On September 16, 2013, Petitioner filed his third PCR notice, arguing as follows:
(Exhibit O; Doc. 12-3 at p. 58-67). On November 7, 2013, the state court summarily dismissed the notice on, as untimely and successive (Exhibit P; Doc. 12-3 at p 68-70).
On December 9, 2013, Petitioner filed a petition for review with the Arizona Court of Appeals, which was filed in Division One but then transferred to Division Two (Exhibits Q, V; Doc. 12-3 at p. 71-76, Doc. 12-3 at p. 90-92).
On May 26, 2015, the Arizona Court of Appeals granted review, but denied relief. The court of appeals wrote:
(Exhibit W; Doc. 12-3 at p. 93-99). Petitioner did not seek review at the Arizona Supreme Court (Doc. 7 at p. 5).
Petitioner filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") (Doc. 1) on May 19, 2016, and an Amended Petition ("Amended Petition) (Doc. 7) on June 21, 2016.
In his Amended Petition (Doc. 7), Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner raises three grounds for relief. In Ground One, he alleges that his trial attorney was ineffective because the attorney failed to move to suppress evidence that had been obtained by federal and state agents in another state. In Ground Two, Petitioner alleges that he received ineffective assistance of trial counsel because his attorney failed to object to the duplicity "and/or" validity of his indictment, thereby resulting in an excessive sentence that violated his due process rights. In Ground Three, Petitioner alleges that, under Martinez,
A threshold issue for the Court is whether the habeas petition is time-barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Petitioner's habeas petition because he filed it after April 24, 1996, the effective date of the AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).
Under the AEDPA, a state prisoner seeking federal habeas relief from a state court conviction is required to file the petition within one year 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). If a defendant is convicted pursuant to a guilty or no contest plea, then the first post-conviction proceeding is considered a form of direct review and the conviction becomes "final" for purposes of Section 2244(d)(1)(A) when the timely Rule 32 of right proceeding concludes or the time for such expired. Summers v. Schriro, 481 F.3d 710, 713-17 (9th Cir. 2007) (conviction pursuant to plea agreement is final on expiration of the time for seeking Rule 32 relief).
Petitioner plead guilty pursuant to a plea agreement and was sentenced on July 10, 2012. Pursuant to Rule 32.4(a) of the Arizona Rules of Criminal Procedure, the Notice of Post-Conviction Relief must be filed within 90 days of the entry of judgment. Here, Petitioner did not file his first notice of post-conviction relief until March 15, 2013, over seven months after entry of the judgment against him. The trial court rightly found this first notice of post-conviction relief untimely.
Respondents argue that Petitioner's judgment became final and the one year began to run on July 11, 2012, the day after the trial court entered judgment and sentence. The Court finds that the proper calculation is to allow the time for the equivalent of direct review, a notice of post-conviction relief filed within 90 days, before the conviction and sentence become final for AEDPA statute of limitations purposes. The last day to file for post-conviction relief was October 8, 2012, and, thus, AEDPA's one year limitations period began to run on October 9, 2012, and it expired one year later on October 9, 2013, absent statutory or equitable tolling.
Under the AEDPA, the one-year limitations period is tolled during the time that a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); see also Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A state petition that is not filed within the state's required time limit, however, is not "properly filed," and is thus not entitled to statutory tolling. Allen v. Siebert, 552 U.S. 3, 6-7 (2007) (finding that inmate's untimely state post-conviction petition was not "properly filed" under AEDPA tolling provision); Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a post-conviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)."). Further, a second PCR proceeding that is deemed untimely does not toll the time between the first and second PCR proceedings. Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).
None of Petitioner's PCR petitions statutorily tolled the running of the limitations period because none of these untimely petitions was a "properly-filed" application. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)") (internal quotation omitted); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005). Therefore, Petitioner was required to file his federal habeas petition by October 9, 2013, absent any equitable tolling. See section III(A)(3), infra.
The AEDPA limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. 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" to prevent him from timely filing a federal habeas petition. Id. at 649 (quoting Pace v. DiGuglielma, 544 U.S. 408, 418 (2005)). "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland, 560 U.S. at 653 (internal citations and quotations omitted).
Whether to apply the doctrine of equitable tolling "`is highly fact-dependent,' and [the petitioner] `bears the burden of showing that equitable tolling is appropriate.'" Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) ("Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate."); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is "unavailable in most cases," and "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations and internal emphasis omitted). 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).
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."); see also Ballesteros v. Schriro, CIV-06-675-PHX-EHC (MEA), 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). Further, a prisoner's "proceeding pro se is not a `rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
In Ramirez v. Yates, the petitioner argued that he had limited access to the law library and copy machine during the period in which he remained in administrative segregation. Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). In denying equitable tolling for that period of time, the Ninth Circuit has stated that "[o]rdinary prison limitations on [petitioner's] access to the law library and copier (quite unlike the denial altogether of access to his personal legal papers) were neither `extraordinary' nor made it `impossible' for him to file his petition in a timely manner. Given even the most common day-to-day security restrictions in prison, concluding otherwise would permit the exception to swallow the rule—AEDPA's limitations period would be tolled for the duration of any and every prisoner's stay in administrative segregation, and likely under a far broader range of circumstances as well." Id.; see also Gutierrez-Valencia v. Ryan, No. CV-12-01318-PHX-JAT, 2014 WL 1762978, at *5 (D. Ariz. May 5, 2014) (where petitioner did not allege a complete lack of access to his legal file, only his being housed in lock down status in a maximum security facility, court held that "Petitioner has not provided this Court with any specific details regarding what legal materials he was seeking and how they would be of assistance in his habeas filing . . . [and] Petitioner does not dispute that his lock down status is an ordinary prison limitation.").
Petitioner has not met his burden to show equitable tolling. While Petitioner alludes to a lack of English comprehension in the third ground of his habeas petition (Doc. 7 at p. 8), a lack of English proficiency constitutes an extraordinary circumstance with regard to equitable tolling "only when the petitioner is unable to procure legal materials in his own language or to obtain translation assistance." Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014). Here, Petitioner fails to meet his burden to "allege specific, particularized facts showing that he was unable to procure legal materials in his own language or obtain translation assistance during the relevant time period." Arcineiga-Rangel v. Ryan, No. CV-15-02172-PHX-DGC, 2016 WL 2957798, at *3 (D. Ariz. May 23, 2016) (citations omitted).
Equally unavailing is Petitioner's complaint that his trial counsel did not file an "of-right" PCR notice and that counsel ailed to inform him of his right to file a pro se PCR petition (Doc. 7 at p. 8). Petitioner was given formal notice of his rights in regard to a PCR notice and proceeding, and he signed the notice stating such (Exhibit G; Doc. 12-3 at p. 9-10). Petitioner has not argued, let alone demonstrated, that he was unable to procure a copy of the form "in his own language or to obtain translation assistance." Yow Ming Yeh, 751 F.3d at 1078.
To the extent Petitioner suggests that Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), applies in this context, he is mistaken. Martinez applies only to excusing procedural default and/or lack of exhaustion in state court. See id. at 1315. In Martinez, the Court held:
Id. at 1320. Thus, Martinez has no application to the statute of limitations in the AEDPA which governs Petitioner's filing in federal court. See McKinnie v. Long, 2013 WL 1890618 (C.D. Cal. Apr. 5, 2013) ("Martinez dealt solely with the state procedural default doctrine, which is entirely different from the issue presented here of whether petitioner's claims are time barred under the AEDPA statute of limitations."); Moore v. Williams, 2013 WL 271454 at *5 (D. Nev. Jan. 23, 2013) ("Petitioner has conflated the federal timeliness question with the issue of whether a claim in the federal petition is barred due to procedural default in state court."). Accordingly, Martinez does not present a basis for equitable tolling. Petitioner's habeas petition is untimely.
Petitioner has failed to meet his burden of showing extraordinary circumstances or reasonable diligence that would justify equitable tolling. Additionally, the record does not reveal any extraordinary circumstances that prevented Petitioner from filing a timely federal habeas corpus petition. Because Petitioner has not presented circumstances and met his burden that would justify equitably tolling the AEDPA statute of limitations and there is no extraordinary circumstance reflected in the record which prevented the timely filing of a federal habeas corpus petition, the Petition is untimely and the Court will not consider Respondents' alternative grounds for denying habeas corpus relief. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002) (whether a petition is barred by the statute of limitations is a threshold issue that must be resolved before considering other procedural issues or the merits of individual claims).
Petitioner filed the Petition more than two and a half years after the expiration of the AEDPA statute of limitations. Statutory and equitable tolling do not render the Petition timely. Accordingly, the Petition is untimely under 28 U.S.C. § 2244(d)(1).
Because the Petition is untimely, the Court does not consider Respondents' alternative grounds for denying habeas corpus relief. The Court will therefore recommend that the Amended Petition be denied and dismissed.
Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Court was correct in its procedural ruling. Accordingly, to the extent the Court adopts this Report and Recommendation as to the Petition, a certificate of appealability should be denied.
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) of the 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); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely 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 file timely objections to any factual determination of the Magistrate Judge may 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 Fed. R. Civ. P. 72.
