Report & Recommendation on Petition for Writ of Habeas Corpus

JAMES F. METCALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 24, 2016 (Doc. 1). On December 29, 2016, Respondents filed their Answer (Doc. 11). Petitioner filed a Reply on April 20, 2017 (Doc. 22).

The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL

The Presentence Investigation Report provided a summary of the factual background based on police reports. The report reflects, on that basis, that on January 8, 2006, the victim was beaten and stabbed, then left in the desert, where she was found two days later by some recreational bikers, who called authorities. The victim survived and identified the Petitioner and two co-defendants (Jessica and Kelly) as her attackers. She described a history of a custody fight with another co-defendant, Jason, and making plans with Jessica to leave town with the victim's 2 year old, whose father was Jason. Petitioner and the other two co-defendants (Jessica and Kelly) took the victim to the desert and attacked her. Petitioner eventually sat her up and tried to break her neck, but it did not work, at which point he sent a co-defendant to the car for a knife, then stabbed the victim and cut her throat.

Petitioner was eventually arrested and interviewed. He admitted attacking the victim, but initially denied any stabbing or cutting. He later admitted stabbing the victim once in the upper chest and alleged Kelly had also stabbed the victim. He admitted to disposing of various evidence. He also told officers the attack was pre-planned, and based on an order from an Aryan Nation group, to which the participants all belonged and for which he was an enforcer. (Exhibit A, Present. Investigation at 1-2.) (Exhibits to the Answer, Doc. 11, are referenced herein as "Exhibit ___." The unlabeled exhibits to the Petition, Doc. 1, are referenced herein as "Pet. Exhibits" with a description of the Exhibit.)

Petitioner eventually pled guilty to and was convicted of conspiracy to commit first-degree murder, and was sentenced to life imprisonment without the possibility of release for 25 years. (Exhibit B, Mem. Dec. 5/7/17 at ¶ 2.) His sentencing was on November 2, 2007. (Pet. Exhibits, M.E. 11/14/13 at 1.)

B. PROCEEDINGS ON DIRECT APPEAL

Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2; Answer, Doc. 11 at 5-6.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).

C. PROCEEDINGS ON POST-CONVICTION RELIEF

On July 7, 2011 (almost 44 months after sentencing), Petitioner filed a pro se Notice of Post-Conviction Relief (Exhibit D). Counsel was appointed who eventually filed a notice evidencing an inability to find an issue for review. (Pet. Exhibits, M.E. 8/11/11; Exhibit B, Mem. Dec. 5/7/15 at ¶ 3-4.) Petitioner then filed a supplemental petition pro se, raising various claims. (Id. at ¶ 4.)

On November 14, 2013, the PCR court dismissed the proceeding as untimely, pursuant to Ariz. R. Crim. Proc. 32.4., and for failing to make a showing that any claim raised could be asserted in an untimely petition and that the untimeliness was without fault on Petitioner's part. The court also found Petitioner's claims precluded pursuant to Ariz. R. Crim. Proc. 32.2. (Pet. Exhibits, M.E. 11/14/13; Exhibit B, Mem. Dec. 5/7/15 at ¶ 5.)

Petitioner then sought review by the Arizona Court of Appeals which granted review but denied relief, agreeing with the PCR court that Petitioner's claims were time barred and precluded. (Exhibit B, Mem. Dec. 5/7/15 at ¶ 5.)

Petitioner then sought review by the Arizona Supreme Court. (Pet. Exhibits, Pet. for Review.) That court summarily denied review on October 8, 2015. (Pet. Exhibits, Order 10/8/15.) The Arizona Court of Appeals issued its Mandate (Exhibit C) on November 3, 2015.

D. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition — Over nine months later, Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 24, 2016 (Doc. 1). Although dated July 8, 2016, the certificate of service attached to the Petition clarifies that it was "hand-delivered" to the Clerk of the Court on August 24, 2016. (Id. at Doc. 1-1, p. 31.)

Petitioner's Petition asserts the following four grounds for relief:

(Service Order 11/23/16, Doc. 5 at 2.)

Response — On December 29, 2016, Respondents filed their Answer (Doc. 11). Respondents argue that the Petition is untimely, Petitioner's claims are barred by his guilty plea, and that his claims are either procedurally defaulted or were procedurally barred on independent and adequate state grounds.

Reply — On April 20, 2017, after delays associated with motions for counsel and legal resources (see Order 1/17/17, Doc. 15) Petitioner filed a Reply (Doc. 22). Petitioner argues that he is actually innocent, he is entitled to equitable tolling, his claims were not waived by his guilty plea, and that he has properly exhausted his claims or exhaustion should be excused for cause.

III. APPLICATION OF LAW TO FACTS

A. TIMELINESS

1. One Year Limitations Period

Respondents assert that Petitioner's Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one year limitations period are barred and must be dismissed. Id.

2. Commencement of Limitations Period

a) Conviction Final

The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).1

For an Arizona noncapital pleading defendant, like Petitioner, the conviction becomes "final" at the conclusion of the first "of-right" post-conviction proceeding under Rule 32. "Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A)." Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). "To bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to the Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of his or her intent to file a Petition for Post-Conviction Review." Id. at 715 (citing Ariz. R.Crim. P. 32.4(a)).

Here, Petitioner did not bring such a Rule 32 proceeding. Accordingly, his time for direct review expired 90 days after sentencing. He was sentenced on November 2, 2007, and thus his time for such review expired on Thursday, January 31, 2008. His one year habeas statute of limitations began running thereafter, on February 1, 2008, and expired one year later, on January 31, 2009.

3. Timeliness Without Tolling

Petitioner's Petition (Doc. 1) was filed on August 24, 2016, following hand delivery to the Court.

As determined in subsection (2) above, without any tolling Petitioner's one year habeas limitations period expired no later than January 31, 2009, making his Petition over seven years delinquent.

4. Statutory Tolling

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). This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).

Properly Filed — Statutory tolling of the habeas limitations period only results from state applications that are "properly filed," and an untimely application is never "properly filed" within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005). On the other hand, the fact that the application may contain procedurally barred claims does not mean it is not "properly filed." "[T]he question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." Artuz v. Bennett, 531 U.S. 4, 9 (2000).

However, even if the state court provides alternative grounds for disposing of the state application, a ruling that the application was untimely precludes it from being "properly filed" and tolling the limitations period. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). If the state court summarily disposes of a state application without identifying if it was on timeliness grounds, or otherwise fails to give a clear indication whether it has deemed the application timely or untimely, the federal habeas court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans v. Chavis, 546 U.S. 189, 198 (2006).

Mailbox Rule — For purposes of calculating tolling under § 2244(d), the federal prisoner "mailbox rule" applies. Under this rule, a prisoner's state filings are deemed "filed" (and tolling thus commenced) when they are delivered to prison officials for mailing. In Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000), the Ninth Circuit noted:

Id. at 575.

Similarly, the "mailbox rule" applies to determining whether an Arizona prisoner's state filings were timely. Although a state may direct that the prison mailbox rule does not apply to filings in its court, see Orpiada v. McDaniel, 750 F.3d 1086, 1090 (9th Cir. 2014), Arizona has applied the rule to a variety of its state proceedings. See e.g. Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.1995) (notice of direct appeal); State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App.1999) (PCR notice); State v. Goracke, 210 Ariz. 20, 23, 106 P.3d 1035, 1038 (App. 2005) (petition for review to Arizona Supreme Court).

Application to Petitioner — Petitioner's limitations period commenced running on February 1, 2008, and without tolling expired on January 31, 2009. Petitioner's PCR proceeding were commenced on July 7, 2011, more than 29 months after his limitations period expired. Once the statute has run, a subsequent post-conviction or collateral relief filing does not reset the running of the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Even if deemed filed (under the "mailbox rule") on the date it was signed, June 16, 2011, it was still over 27 months months delinquent.

Moreover, that petition was determined to be untimely, and thus could not, in any event, have resulted in statutory tolling. Pace, 544 U.S. 408. That the claims were also determined to be precluded does not alter that determination. Carey, 536 U.S. at 225-226.

Accordingly, Petitioner has no statutory tolling resulting from his PCR proceeding. Consequently, Petitioner's habeas petition was more than seven years delinquent.

5. Equitable Tolling

"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when `extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and `the extraordinary circumstances were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).

Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations omitted). "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 United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.). Petitioner bears the burden of proof on the existence of cause for equitable tolling. 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.").

"If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing." Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 2000). Ordinarily, thirty days after elimination of a roadblock should be sufficient. See Guillory v. Roe, 329 F.3d 1015, 1018, n.1 (9th Cir. 2003).

Petitioner argues that he is entitled to equitable tolling because: (1) trial counsel failed to file a PCR petition; and (2) there were limitations in and delays in access to resources in the Arizona state prison. (Reply, Doc. 22 at 3-6.)

Pro Se Status — Although Petitioner does not explicitly rely on his untrained, pro se status, it is worth observing that such does not constitute an extraordinary circumstance. "It is clear that pro se status, on its own, is not enough to warrant equitable tolling." Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). 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). See also 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").

Ineffective Assistance of Counsel — Petitioner argues that trial counsel promised to assist him with filing a PCR petition, but failed to do so, even after requests for assistance.

Although an attorney's behavior can establish the extraordinary circumstances required for equitable tolling, mere negligence or professional malpractice is insufficient. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001). A "garden variety claim of excusable neglect,' such as a simple `miscalculation' that leads a lawyer to miss a filing deadline does not warrant equitable tolling.'" Holland v. Florida, 560 U.S. 631, 651-652 (2010). Rather, the attorney's misconduct must rise to the level of extraordinary circumstances. Id. For example, in Holland, the Court considered whether circumstances established equitable tolling where habeas counsel misinformed petitioner about the habeas filing deadline, failed to communicate the conclusion of state appeals, and failed to communicate with the petitioner at all over a period of years, all despite repeated requests by the petitioner.

Here, Petitioner's complaint is not that counsel failed to act with regard to his habeas petition, but failed to act with regard to a state PCR petition. Petitioner makes no suggestion that counsel had been retained to, or was expected to, file a federal habeas petition.

Even if counsel's failure to file a state PCR proceeding could justify equitable tolling of Petitioner's federal habeas limitations period, it could do so only if Petitioner's conduct thereafter demonstrated diligence in attempting to file his federal habeas petition.

Petitioner acknowledges that he was made aware of counsel's failure to act and the expiration of the deadline at least as of August of 2009. (See Reply, Doc. 22 at 4.) Further, Petitioner proffers nothing to show that he should not have been alerted to the need to act long before then, for example, when Petitioner received a notice of counsel's withdrawal, and when Petitioner had "waited roughly two months waiting for the promised paperwork and assistance his attorney had previously instructed him she would provide." (Id. at 3.) Indeed, Petitioner acknowledges that upon receiving the notice regarding counsel's withdrawal he "immediately attempted" to proceed on his own. (Id.)

Nonetheless, Petitioner waited over seven years before filing his federal petition.

Limited Legal Resources — In an effort to explain his delays after learning of counsel's failings, Petitioner outlines a laundry list of delays, limitations, and frustrations in attempting to discover the forms and legal authorities to pursue his claims in a Rule 32 proceeding. For example: (1) he was denied paralegal assistance because his petition was untimely (Reply, Doc. 22 at 3-4); (2) he was frustrated by limited available legal books, and delayed or missing responses for library books (id. at 4); (3) retaliatory responses (or lack of responses) to requests for legal materials while in a detention unit, and delays resulting from his movement between detention units, at Lewis Complex, keeping him from "research[ing] his case and fil[ing] his Rule 32" (id. at 4); (4) beginning December 30, 2009, Petitioner was on two units where he was delayed, or precluded by his employment in the law library, from getting requested legal materials (id. at 5). He reports that it took him through June 2011 to attempt a Rule 32 petition, and to understand the ability to file a late Rule 32 Petition. (Id. at 5.)

Although Petitioner generally decries the limited legal resources available to him, he makes no showing of a deficiency relevant to a timely federal petition. Moreover, Petitioner was provided counsel in his PCR proceeding. Petitioner makes no explanation why he could not have, with the resources available through PCR counsel, have been able to timely file a federal habeas petition.

Even if Petitioner may have shown that he diligently pursued filing a Rule 32 state petition, he proffers no efforts to file a federal habeas petition.2 Even assuming that his delays could be justified until he could have identified his legal claims, as of June, 2011, Petitioner had reached that point, but still did not file his federal petition for another five years.

Perhaps Petitioner believes that his need to exhaust his state remedies justified the additional five years' delay. Indeed, in Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Supreme Court analyzed the potential catch-22 between the habeas limitations period and the exhaustion requirement, where a state petitioner has filed a state post-conviction relief proceeding which may ultimately be deemed untimely, thus not properly filed, and resulting in the expiration of his habeas limitations period. "A prisoner seeking state postconviction relief might avoid this predicament, however, by filing a `protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted." Id. at 416. Petitioner proffers no reason why this avenue was not available to him.

Even after being alerted that his state PCR petition was untimely, e.g. when the PCR court denied it as such in November, 2013, Petitioner still did not file his federal Petition. Moreover, even if it could be assumed that somehow Petitioner was diligent in waiting until the Arizona Supreme Court rejected his petition for review in October, 2015, Petitioner still delayed another 10 months before filing his federal petition. Petitioner proffers no explanation for that delay.

In sum, Petitioner fails to show that extraordinary circumstances precluded him from timely filing his federal habeas petition, or that he acted diligently in filing his federal habeas petition in light of his circumstances.

6. Actual Innocence

To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude "a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence." McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013). To invoke this exception to the statute of limitations, a petitioner "`must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'" Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This exception, referred to as the "Schlup gateway," applies "only when a petition presents `evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Id. at 1936 (quoting Schlup, 513 U.S. at 316).

Petitioner argues in his Reply that he "maintains his actual innocence of the count of conspiracy to commit first degree murder." (Reply, Doc. 22 at 2-3.) However, Petitioner proffers no new evidence, nor even any evidence, of his actual innocence other than his bald assertions. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup, 513 U.S. at 324. Bare assertions of innocence are not the kinds of reliable evidence which can support a claim of actual innocence.

7. Summary re Statute of Limitations

Petitioner's one year habeas limitations period commenced running on February 1, 2008, and expired on January 31, 2009, making his August 24, 2016 Petition over seven years delinquent. Petitioner has shown no basis for statutory tolling, and no basis for equitable tolling or actual innocence to avoid the effects of his delay. Consequently, the Petition must be dismissed with prejudice.

B. OTHER DEFENSES

Because the undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations, Respondents' other defenses are not reached.

IV. CERTIFICATE OF APPEALABILITY

Ruling Required — Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).

Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.

Applicable Standards — The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

Standard Not Met — Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling.

Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.

V. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ of Habeas Corpus, filed August 24, 2016 (Doc. 1) be DISMISSED WITH PREJUDICE.

IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

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.

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).