REPORT AND RECOMMENDATION

LESLIE A. BOWMAN, Magistrate Judge.

Pending before the court is a petition for writ of habeas corpus constructively1 filed in this court on March 3, 2017, by Ryan Starr Soucy, an inmate currently held in the Arizona State Prison Complex in Eloy, Arizona. (Doc. 1, pp. 1, 11)

Also pending is Soucy's motion to stay federal proceedings, filed on the same day. (Doc. 3)

Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition and denying the motion. The petition is time-barred; a stay would be futile.

Summary of the Case

On January 11, 2011, Soucy pleaded guilty pursuant to a plea agreement to "theft by misrepresentation, aggravated assault of a peace officer, and three counts of possession of a dangerous drug." (Doc. 21, pp. 29, 77) On February 8, 2011, the trial court sentenced him to "a total of 18.5 years in prison." (Doc. 21, p. 29)

Soucy filed notice of post-conviction relief (PCR), but appointed counsel was unable to find any meritorious issues to raise. (Doc. 19-7); (Doc. 19-8) (Notice of Review filed October 24, 2011) Soucy subsequently filed his own post-conviction relief (PCR) petition pro se. He raised sixteen ineffective assistance of counsel claims and four sentencing claims. (Doc. 21, pp. 29, 31, 39) The PCR court dismissed the petition on July 9, 2012. (Doc. 21, p. 42) His petition for review with the Arizona Court of Appeals was denied as untimely in September of 2012. (Doc. 23, p. 27); (Doc. 23, p. 43)

On March 4, 2013, Soucy filed a second notice of post-conviction relief (PCR). (Doc. 23, p. 27) He filed his petition on May 8, 2013. (Doc. 22, p. 3) The PCR court acknowledged receipt of his petition on May 13, 2013. (Doc. 23, p. 27).

On June 6, 2013, the Arizona Court of Appeals granted Soucy's motion to proceed with a delayed petition for review of his first PCR proceeding. (Doc. 23, p. 27); but see (Doc. 21, p. 73) (order dated June 10, 2013) The PCR court subsequently stayed Soucy's second PCR proceeding. (Doc. 23, p. 27)

On September 11, 2013, the Arizona Court of Appeals issued an order granting review but denying relief. (Doc. 23, p. 27) Soucy did not file a petition for review with the Arizona Supreme Court. (Doc. 18, p. 3) Soucy subsequently filed a motion to withdraw the second petition, and on October 15, 2013, the PCR court dismissed the second petition "without prejudice." (Doc. 22, pp. 23, 26) The Arizona Court of Appeals issued its mandate on November 5, 2013. (Doc. 23, p. 28) Ordinarily, a subsequent PCR notice must be filed within 30 days "after the issuance of the final order or mandate by the appellate court in the petitioner's first petition for post-conviction relief proceeding." Ariz.R.Crim.P. 32.4(a).

On April 16, 2014, Soucy constructively filed his third notice of post-conviction relief (PCR). (Doc. 22, pp. 28-30) Appointed counsel was unable to find any meritorious issues, so Soucy filed a petition pro se. (Doc. 22, pp. 35, 38) On June 24, 2015, the PCR court denied the petition as untimely and, in the alternative, meritless. (Doc. 23, pp. 3-12) (The PCR court erroneously referred to this proceeding as Soucy's "second.").

The PCR court denied Soucy's motion for reconsideration on August 28, 2015. (Doc. 23, p. 27) The court found that the third notice was not filed within 30 days of the order and mandate of the court of appeals and the claims in the third petition did not fall within Rule 32's "savings clause." (Doc. 23, pp. 28-29) (citing Ariz.R.Crim.P. 32) The court rejected Soucy's argument that the PCR court had dismissed his second PCR petition but not his second PCR notice and his third petition dated back to his second PCR notice. Id. The court explained that when a petition is dismissed, the court need not explicitly dismiss the notice as well. (Doc. 23, p. 29)

On March 1, 2016, the Arizona Court of Appeals granted review of the third PCR petition but denied relief. (Doc. 23, p. 42) The court adopted the PCR court's analysis of the timeliness issue. (Doc. 23, p. 45) The court further noted that the rules do not explicitly permit a dismissal "without prejudice" in the PCR context and warned against using that phrase. (Doc. 23, p. 45, n. 1) The Arizona Supreme Court denied review on August 22, 2016. (Doc. 23, p. 62)

Soucy filed his fourth notice of post-conviction relief (PCR) on March 2, 2017. (Doc. 24, pp. 3-18) The PCR court summarily dismissed the notice on March 29, 2017. (Doc. 24, pp. 32-34) Soucy's petition for review with the Arizona Court of Appeals is still pending. (Doc. 18, p. 4); (Doc. 24, p. 36)

Previously, on March 3, 2017, Soucy constructively filed in this court the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) counsel was ineffective for (a) failing to file a motion to suppress, (b) failing to investigate, (c) failure to explain the law, and (d) failure to object to the trial court's ultimatum to enter a plea; (2) the court interfered with plea negotiations by imposing a deadline to accept the plea; (3) PCR counsel was ineffective for failing to raise the issues described in the first claim; and (4) PCR counsel was ineffective for filing a "Notice of Completion" without finding meritorious issues. (Doc. 1)

The same day, Soucy filed the pending motion to stay. (Doc. 3) He argues the petition should be stayed while he exhausts Claim (2) and Claim (4) in his fourth PCR proceeding. Id.

On June 14, 2017, the respondents filed an answer to the petition arguing among other things that it is time-barred. (Doc. 18) They filed a response to the motion arguing that a stay would be futile because the petition is untimely. (Doc. 25)

On July 7, 2017, Soucy filed a reply to the respondents' answer and a reply in support of his motion for a stay. (Doc. 26); (Doc. 27)

The respondents are correct. The petition is time-barred, a stay would be futile.

Discussion

The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, however, must be filed within the applicable limitation period or it will be dismissed. The statute reads in pertinent part as follows:

28 U.S.C. § 2244(d). The "one-year statute of limitations . . . applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1170 (9th Cir. 2012).

The limitation period for each of Soucy's claims was triggered on "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). He does not argue that any of the other statutory triggers apply. (Doc. 1, p. 11); (Doc. 27)

Soucy was convicted pursuant to a plea of guilty. Accordingly, his first PCR petition was an "of-right" proceeding and functioned as direct review of his conviction. See Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) ("AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review.").

On September 11, 2013, the Arizona Court of Appeals granted review of Soucy's first PCR petition but denied relief. (Doc. 23, p. 27) He then had 35 days to file a petition for review with the Arizona Supreme Court. Ariz.R.Crim.P. 31.19(a) (30 days to petition the Arizona Supreme Court); Ariz.R.Crim.P. 1.3(a) (5 days added for service). His judgment became final when he failed to do so on October 16, 2013. See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007), cert. denied, 555 U.S. 829 (2008).

The one-year limitation period began running the next day and expired one year later on October 16, 2014. See Hemmerle, 495 F.3d at 1077. Soucy constructively filed his petition in this court on March 3, 2017. (Doc. 1, p. 11) It is time-barred.

The limitation period was not statutorily tolled on April 16, 2014 when Soucy constructively filed his third notice of post-conviction relief. (Doc. 22, pp. 28-30) Statutory tolling only occurs when a "properly filed application for State post-conviction or other collateral review" is pending. 28 U.S.C. § 2244(d)(2) (emphasis added). And an untimely application is not "properly filed." Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 1814 (2005). Here, the third PCR application was untimely, so it was not properly filed. (Doc. 23, pp. 3-12) (application was untimely); (Doc. 23, pp. 27-29) (same); (Doc. 23, pp. 42-45) (same) And the limitation period was not statutorily tolled. See 28 U.S.C. § 2244(d).

Soucy argues his third PCR petition was properly filed because it relates back to his second PCR notice, which was never explicitly dismissed. (Doc. 1, p. 11); (Doc. 27, p. 3) The Arizona Court of Appeals, however, ruled that the petition was untimely, and "a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus." (Doc. 23, pp. 42-45); Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 604 (2005).

Soucy further argues that the state courts "are utilizing a rule that does not exist and is not regularly followed." (Doc. 1, p. 11); (Doc. 27, pp. 8, 10) He is mistaken. The state courts found that Soucy's PCR proceeding was untimely under Ariz.R.Crim.P. 32. (Doc. 23, pp. 3-12); (Doc. 23, pp. 27-29); (Doc. 23, pp. 42-45) That rule is regularly followed. See Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (rejecting the petitioner's argument that Arizona Rule of Criminal Procedure 32 cannot bar federal habeas review because it has not been "strictly or regularly followed."). Soucy seems to be referring to a footnote in which the Arizona Court of Appeals noted that the rules do not explicitly permit a dismissal "without prejudice" in the PCR context and warned against using that phrase. (Doc. 23, p. 45, n. 1) He reasons that his petition was ruled untimely based upon this "rule that does not exist." (Doc. 1, p. 11); (Doc. 27, pp. 4-5, 8) He is incorrect. His petition was ruled untimely in accordance with Ariz.R.Crim.P. 32. (Doc. 23, pp. 3-12); (Doc. 23, pp. 27-29); (Doc. 23, pp. 42-45)

Soucy further argues that he is entitled to equitable tolling because the PCR court's dismissal of his second petition "without prejudice" was confusing and led him to believe that his third petition would be timely.

"[A] petitioner is entitled to equitable tolling [of the limitation statute] only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (punctuation modified), cert. denied, 131 S.Ct. 3039 (2011). "The petitioner must additionally 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." Id. "The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule." Id.

In this case, Soucy cannot show that the PCR court's dismissal of his second petition "without prejudice" prevented him from filing a timely petition. Assuming he was confused2, this confusion was cleared up in plenty of time for him to file a timely petition.

The PCR court dismissed his third petition as untimely on June 24, 2015. (Doc. 23, pp. 3-12) Assuming Soucy was confused by the PCR court's previous dismissal of his second petition "without prejudice," this confusion was cleared up when he learned that his third PCR proceeding was untimely. (Doc. 23, pp. 3-12) Assuming Soucy is entitled to equitable tolling due to his confusion, equitable tolling ended when he discovered his error — June 24, 2015. The limitation period began running the next day and ended one year later on June 24, 2016. Soucy's pending petition was filed on March 3, 2017, more than eight months later. Assuming Soucy is entitled to a period of equitable tolling, his petition is still untimely.

Soucy further argues that appointed counsel was ineffective when he filed a Notice of Review explaining he was unable to find any meritorious issues to raise in the first PCR proceeding. (Doc. 27, pp. 1-2); see (Doc. 19-8) (Notice of Review filed October 24, 2011) While that might be true, Soucy does not explain why counsel's performance prevented him from filing a timely petition in this court.

RECOMMENDATION

The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order DISMISSING the petition for writ of habeas corpus and DENYING the motion for a stay. (Doc. 1), (Doc. 3) The petition is time-barred; a stay would be futile.

Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response without the permission of the District Court.