EILEEN S. WILLETT, Magistrate Judge.
Pending before the Court is Branden La Rue Williams' ("Petitioner") "Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus" (the "Petition") (Doc. 1). Respondents have filed a Limited Answer (Doc. 14), to which Petitioner has replied (Doc. 15). The matter is deemed ripe for consideration.
For the reasons explained herein, the undersigned finds that the Petition is time-barred under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA").
In October 2007, a Maricopa County Grand Jury indicted Petitioner on multiple armed robbery and kidnapping counts. (Bates No. 20-28).
On August 29, 2008, Petitioner filed a Notice of Post-Conviction Relief ("PCR"). (Bates No. 155-58). The trial court appointed Petitioner counsel, who could not find a colorable claim for relief. (Bates No. 160-61, 171-73). On June 2, 2009, Petitioner filed a pro se PCR Petition. (Bates No. 177-211). On January 11, 2010, the trial court dismissed the PCR proceeding after finding that Petitioner did not present any colorable claims for relief. (Bates No. 232-34). Petitioner, through counsel, filed a "Motion for Rehearing Pursuant to Arizona Rules of Criminal Procedure, Rule 32.9; Motion to Amend Pleadings Pursuant to Arizona Rules of Criminal Procedure, Rule 32.6(D)." (Bates No. 245-311). The trial court denied the Motion on March 23, 2010. (Bates No. 330-34). The Arizona Court of Appeals summarily denied Petitioner's request for review of the trial court's decision. (Bates No. 338-75, 499). Petitioner filed a Petition for Review in the Arizona Supreme Court, which denied review on March 8, 2012. (Bates No. 505-81, 583).
On June 27, 2016, Petitioner initiated this federal habeas proceeding (Doc. 1).
Under AEDPA, a state prisoner must file his or her federal habeas petition within one year of the latest of:
28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Statutory tolling is available under AEDPA, which provides that the limitations period is tolled during the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) ("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases."). Yet equitable tolling is applicable only "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's 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). Typically "direct review" means a defendant's direct appeal following his or her convictions and sentencing. But under Arizona law, a defendant in a non-capital case who pleads guilty waives his or her right to a direct appeal. See ARIZ. REV. STAT. § 13-4033(B). A plea-convicted defendant, however, is entitled to a Rule 32 of-right proceeding. See Ariz. R. Crim. P. 32.1 and 32.4. Under Ninth Circuit case law, an Arizona defendant's Rule 32 of-right proceeding is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A). See Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007). The Ninth Circuit explained that "treating the Rule 32 of-right proceeding as a form of direct review helps make the Arizona Constitution's guarantee of `the right to appeal in all cases' a functioning reality rather than a mere form of words." Id. at 717. Therefore, when an Arizona petitioner's Rule 32 proceeding is of-right, AEDPA's statute of limitations does not begin to run until the conclusion of review or the expiration of the time for seeking such review. See id.
Here, Petitioner was sentenced on August 4, 2008. (Bates No. 142). Petitioner timely filed an of-right PCR Notice on August 29, 2008. (Bates No. 155-58). As discussed, the PCR proceeding concluded on March 8, 2012. (Bates No. 583). Therefore, the one-year statute of limitations began running on March 9, 2012. See Summers, 481 F.3d at 717; Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (AEDPA's statute of limitations commences upon the expiration of the time for seeking review of petitioner's judgment in a state's highest court); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) ("Excluding the day on which Patterson's petition was denied by the Supreme Court, as required by Rule 6(a)'s `anniversary method,' the one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998. . . ."). Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a habeas petition expired on March 8, 2013, rendering the Petition filed on June 27, 2016 untimely by several years.
Petitioner did not initiate a subsequent PCR proceeding after the conclusion of his of-right PCR proceeding. The undersigned thus finds that statutory tolling does not apply.
It is a petitioner's burden to establish that equitable tolling is warranted. Pace, 544 U.S. at 418; 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."). As mentioned, a petitioner seeking equitable tolling must establish that: (i) he or she has been pursuing his or her rights diligently and (ii) that some extraordinary circumstances stood in his or her way. A petitioner must also show that the "extraordinary circumstances" were the "but-for and proximate cause of his [or her] untimeliness." Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001) (per curiam); see also Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., 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 does not allege that he is entitled to equitable tolling. Nor does the Petition set forth grounds that would justify equitable tolling. As Petitioner has not met his burden of showing that extraordinary circumstances made it impossible for him to file a timely federal petition, the undersigned finds that equitable tolling is unavailable.
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the "actual innocence gateway" to federal habeas review that was applied to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518 (2006) extends to petitions that are time-barred under AEDPA.
Petitioner argues that the untimeliness of the Petition should be excused under the actual innocence exception. (Doc. 1 at 8). Petitioner's claim is based on his argument that the trial court improperly applied the sentencing enhancement set forth in ARIZ. REV. STAT. § 13-604.01 (2007). (Doc. 15 at 5-12). At the time of Petitioner's offenses, ARIZ. REV. STAT. § 13-604.01(D) (2007)
In State v. Williams, 854 P.2d 131, 136 (Ariz. 1993), the Arizona Supreme Court addressed the scope of the dangerous crime against children sentencing enhancement set forth in ARIZ. REV. STAT. § 13-604.01. The defendant in Williams rammed his pickup truck into the back of a station wagon while intoxicated. A fourteen-year-old boy, who was a passenger in the station wagon, was thrown from the vehicle and injured. The defendant was convicted of aggravated assault for recklessly causing injury using a dangerous instrument, and his sentenced was enhanced under ARIZ. REV. STAT. § 13-604.01 for committing a dangerous crime against a minor under the age of fifteen. The Arizona Supreme Court vacated the defendant's enhanced sentence because "there was no evidence that his behavior was directed at or focused upon the victim, or that he was even aware of the minor's presence in the station wagon." Id. at 137; see also State v. Miranda-Cabrera, 99 P.3d 35, 39 (Ariz. Ct. App. 2004) (explaining that a defendant's sentence may be enhanced as a dangerous crime against children if the State "prov[es] the defendant committed a crime enumerated by the statute that `focused on, [was] directed against, aimed at, or target[ed] a victim under the age of fifteen.'") (quoting State v. Sepahi, 78 P.3d 732, 735 (Ariz. 2003)).
Petitioner explains that his "assertion of actual innocence hinges on the fact that no such evidence of the specific intent necessary to enact the sentencing enhancement is visible on the face of the record or in any of the police reports." (Doc. 15 at 6). However, the actual innocence exception requires that "at a minimum, the petitioner must `go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.'" Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)). Petitioner has not presented any new evidence to support his assertion that he is innocent.
In addition, Petitioner has not shown that Arizona case law issued after his convictions rendered his conduct non-criminal or made the sentencing enhancement under ARIZ. REV. STAT. § 13-604.01 inapplicable. See Vosgien, 742 F.3d at 1134. In Vosgien, the Ninth Circuit held that a habeas petitioner could establish his actual innocence where the State conceded that the petitioner could not, in light of state case law issued after his conviction, have committed the alleged crime of compelling prostitution based on the facts under which he was convicted. See Vosgien, 742 F.3d at 1136 ("Under Oregon law, as clarified by Oregon courts after Vosgien pled guilty, Vosgien is actually innocent of compelling prostitution. His untimely filing of his federal habeas petition is therefore excused for these counts.").
Unlike in Vosgien, Petitioner's actual innocence claim is premised on an interpretation of state law existing at the time he was convicted and sentenced. As Respondents correctly note (Doc. 14 at 16-17), the Court is bound by the Arizona state courts' interpretation of state law. The U.S. Supreme Court has "repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) and Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)).
Finally, to the extent Petitioner argues that the trial court misapplied Arizona law with respect to the sentencing enhancement set forth in ARIZ. REV. STAT. § 13-604.01, the argument is without merit. Petitioner was convicted of kidnapping the minor victims. As the Arizona Supreme Court explained in Williams, "[i]t is impossible to imagine how. . . kidnapping. . . could be committed without targeting persons." Id. At the change-of-plea hearing, Petitioner admitted that during a robbery, he "knowingly restrained" two twelve-year-old children with the intent to aid in the commission of the armed robbery of a GameStop. (Bates No. 104-05). "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Although Petitioner told the trial court that he did not know the ages of the minor victims at the time of the robbery, the trial court correctly explained to Petitioner that knowledge of the victims' ages is immaterial for purposes of the dangerous crime against children sentencing enhancement. (Bates No. 104-05). As stated in Williams, "[w]hen an individual targets a person, he or she generally assumes the risk that the victim will turn out to be within a protected age group." 854 P.2d at 136. Therefore, the law requires "only that the victim must be the person against whom the crime is directed, not that the accused must know that the person is under fifteen." Id.
Contrary to Petitioner's contention, the record reflects that his conduct was directed at the victims under the age of fifteen. The undersigned does not find that the record and pleadings in this case contain "evidence of innocence so strong" that the Court cannot have confidence in the outcome of the state court proceeding. McQuiggin, 133 S.Ct. at 1936 (quoting Schlup, 513 U.S. at 316). The undersigned therefore does not recommend that the Court apply the actual innocence exception to excuse the untimeliness of this proceeding.
Based on the foregoing,
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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. Thereafter, the parties have fourteen days within which to file a response to the 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 determinations 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.
It is not necessary for the Court to decide the above issues, however, as Petitioner has failed to show that he is actually innocent of the kidnapping offenses for which he was convicted.
