REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT:
On December 19, 2017, Petitioner Jason T. Howe, 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). Respondents filed an Answer (Doc. 12), and Petitioner has not filed a reply.
BACKGROUND
Pursuant to a plea agreement, on March 25, 2015, Petitioner was convicted in Maricopa County Superior Court, case #CR 2012-007354, of kidnapping and aggravated assault, and was sentenced to 2.5-year term of imprisonment for his kidnapping conviction and 3 years' probation, to begin upon his release from prison, for his aggravated assault conviction. (Exhs. A, E, G, H.)
On March 15, 2017, the State filed a petition to revoke Petitioner's probation alleging that Petitioner failed to comply with the terms of probation by committing the crimes of trafficking in stolen property, burglary in the second degree, theft, and by possessing or using methamphetamine. (Exhs. J, K.) On June 15, 2017, the court revoked Petitioner's probation and sentenced him to a 3.5-year term of imprisonment. (Exh. L.)
On December 19, 2017, Petitioner filed a notice of post-conviction relief alleging the following:
Counsel failed to do thorough research, communicate with Petitioner/Defendant, per ethical rules, failed to present evidence in Defendant's behalf/raise Rule 11 issues. Prosecution failed to provide e-mails and correspondence with counsel in Bisbee Case #, violating due process of law 5th and 14th Amendment U.S. Const. Plaintiff has newly discovered evidence prevalent to case.
(Exh. N.) The state court dismissed the notice of post-conviction relief stating the following:
Under 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 and sentencing, or within 30 days of the issuance of the order and mandate by the appellate court, whichever is later. These dates are clearly stated in the "Notice of Rights of Review After Conviction and Procedure" form that Defendant received at sentencing. Because this Court sentenced Defendant on March 25, 2015, the deadline for Defendant's Notice of Post-Conviction Relief was June 23, 2015. His Rule 32 proceeding is thus untimely by more than two years. With respect to the June 15, 2017 sentencing, Defendant's Notice was due on September 13, 2017 and is untimely by more than three months.
A. Rule 32.l(f) Claim
Nevertheless, Defendant contends that the untimeliness of this Rule 32 proceeding is without fault on his part and he is entitled to relief under Arizona Rule of Criminal Procedure 32. l(f). (Notice at 3) He fails to supply an adequate factual or legal basis for relief under the rule. Moreover, the "Notice of Rights of Review After Conviction and Procedure" form he received at sentencing clearly states that a Notice of Post-Conviction Relief must be filed within 90 days.
B. Rule 32.l(a) Claims
He also contends that his convictions and sentence were obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights and he is entitled to relief under Arizona Rule of Criminal Procedure 32.1(a). (Notice at 2-3) Specifically, Defendant claims that he received ineffective assistance from counsel, who failed to conduct thorough research, to communicate with Defendant, to raise Rule 11 issues, and to present evidence. (Notice at 3) Furthermore, Defendant contends that the prosecution violated his due process rights by failing to provide e-mails and correspondence with counsel. (Id.) By pleading guilty, Defendant waived all non-jurisdictional defects unrelated to the voluntariness of his plea. See State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 1993). Moreover, Defendant cannot raise these Rule 32. l(a) claims in an untimely Rule 32 proceeding because the notice may only raise claims pursuant to Rule 32. l (d), (e), (f), (g), or (h). Ariz. R. Crim. P. 32.4(a); see generally State v. Petty, 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010) (holding ineffective assistance of counsel claims are "cognizable under Rule 32.l(a)"). The Rule 32.l(a) claims Defendant has asserted were required to be raised in a timely Rule 32 proceeding.
C. Rule 32.l(e) Claim
Defendant further claims that newly discovered material facts exist and support relief under Arizona Rule of Criminal Procedure 32. l(e). (Notice at 2) To be entitled to post-conviction relief based on newly discovered facts, Defendant must show that the facts were discovered after trial although existed before trial; the facts could not have been discovered and produced at trial or on appeal through reasonable diligence; the facts are neither solely cumulative nor impeaching; the facts are material; and the facts probably would have changed the verdict or sentence. State v. Saenz, 197 Ariz. 487, 489, ¶ 7, 4 P.3d 1030, 1032 (App. 2000), see also Ariz. R. Crim. P. 32.l(e). To put it another way, the relevant inquiry for determining whether Defendant is entitled to an evidentiary hearing is whether he has alleged facts which, if true, "would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, 220, ¶ 11, 368 P.3d 925, 928 (2016) (emphasis in original). "Evidence is not newly discovered unless it was unknown to the trial court, the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence." Saenz, 197 Ariz. at 490, ¶ 13, 4 P.3d at 1033. Defendant provides no new facts, and instead states that he has newly discovered evidence pertinent to this case. (Notice at 3) Conclusory allegations do not support a claim for Rule 32.1(e) relief.
In sum, Defendant fails to state a claim for which relief can be granted in an untimely Rule 32 proceeding. Defendant must assert substantive claims supported by specific facts and adequately explain the reasons for their untimely assertion. Ariz. R. Crim. P. 32.2(b). Defendant has failed to meet this standard. He does not request counsel.
(Exh. O.) The record reflects that Petitioner did not file a petition for review in the Arizona Court of Appeals.
In his habeas petition, Petitioner raises four grounds for relief (Docs. 6, 1 at 6-9):
(1) Petitioner's counsel was ineffective, in violation of the Sixth Amendment;
(2) Petitioner's Fifth Amendment rights were violated when he was not provided sufficient time to review the plea agreement and when emails documenting changes to the plea agreement were not admitted;
(3) The prosecution failed to disclose emails to the court and to Plaintiff's counsel; and
(4) Petitioner's Fourteenth Amendment rights were violated by the prosecution's failure to disclose emails between the prior prosecutor, the adult probation supervisor, and Petitioner's appointed counsel.
DISCUSSION
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. See 28 U.S.C. § 2244(d)(1). The statute provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
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). See Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). Therefore, the judgment of conviction becomes final upon the conclusion of the Rule 32 of-right proceeding, or upon the expiration of the time for seeking such review. See id.
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); see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004). A state petition that is not filed, however, within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). "When a postconviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414.
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. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004). An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See id. Moreover, filing a new petition for post-conviction relief does not reinitiate a limitations period that ended before the new petition was filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
The statute of limitations under the AEDPA is subject to equitable tolling in appropriate cases. 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'" and prevented him from filing a timely petition. Id. at 2562 (quoting Pace, 544 U.S. at 418).
Initially, the Court notes that all four of the claims alleged in Petitioner's habeas petition arose in relation to his March 25, 2015 conviction wherein, pursuant to a plea agreement, Petitioner was convicted in case #CR 2012-007354 of kidnapping and aggravated assault. Since the factual predicate for each of these habeas claims was known at the time of conviction, and did not arise at the time of Petitioner's probation revocation proceeding, the limitations period was unaffected by the probation revocation proceeding. See, e.g., Morgan v. Ryan, 2011 WL 6296763, at *7 (D. Ariz. 2011) (analyzing the timeliness of a habeas petition by first determining whether the petitioner was challenging his sentence upon original conviction or sentence upon revocation of probation), adopted, 2011 WL 6296758 (D. Ariz. 2011); Nost v. Broadhead, 2015 WL 5446810, at *3 (D. Ariz. 2015) (finding that habeas petition challenging original judgment of guilt was time-barred even though the petitioner's probation was revoked after the limitations period had expired), adopted, 2015 WL 5444293 (D. Ariz. 2015); Mattern v. Secretary for Dept. of Corrections, 494 F.3d 1282, 1286 (11th Cir.2007) ("[I]f the factual predicate for the claims was not known until some later date, such as the date on which he was sentenced for the probation revocation, the later date would be the trigger for the limitations period."); Udom v. Warden, San Diego Corr. Facility, 2011 WL 6426637, at *2 (C.D. Cal. Nov. 22, 2011) (dismissing petition as untimely where probation revocation "did not alter the time period during which Petitioner could permissibly bring an appeal challenging the underlying conviction"); Hathcock v. McDonough, 2008 WL 2814868, at *5 (S.D. Fla. July 22, 2008) (finding petition untimely where "the subsequent probation revocation does not resurrect, toll or otherwise extend the one year limitation period as to the challenges to [the] underlying conviction and term of probation").
The Court finds that Petitioner's Petition for Writ of Habeas Corpus is untimely. On March 25, 2015, the trial court sentenced Petitioner pursuant to the terms set forth in the plea agreement. 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, which he failed to do.
Thus, Petitioner's case became final and the statute of limitations began running on June 23, 2015. Petitioner was required to initiate habeas proceedings on or before June 23, 2016. Petitioner filed his habeas petition on December 19, 2017. Absent any tolling, his habeas petition untimely. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (federal habeas petition submitted one day late was properly dismissed as untimely under AEDPA, noting that a "missed" deadline "is not grounds for equitable tolling"); Hartz v. United States, 419 Fed.Appx. 782, 783 (9th Cir. 2011) (unpublished) (affirming dismissal of federal habeas petition where petitioner "simply missed the statute of limitations deadline by one day").
Petitioner's commencement of his PCR proceeding on December 19, 2017, did not toll the limitations period. The proceedings were filed after the limitations period had expired, and, therefore, did not toll the limitations period. See Ferguson, 321 F.3d at 823 ("[S]ection 2244(d) does not permit the re-initiation of the [federal 1-year] limitations period that has ended before the state petition was filed."). Furthermore, the PCR proceeding was dismissed as untimely and, as such, was not "properly filed" and did not toll the limitations period. See Pace, 544 U.S. at 413-14.
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. See Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). Tolling is appropriate when "`extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." Id.; see Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418. 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).
Petitioner attempts to explain his untimeliness by stating that he "feels that a direct review of this 2254 is warranted due to this gross negligence, violations of 5th and 14th and 6th Amendment violations incurred by prosecution and defense counsel in Petitioner's case." The Court finds that he has failed to demonstrate that he has been pursuing his rights diligently, and that some extraordinary circumstance stood in his way. Furthermore, 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.").
Accordingly, Petitioner is not entitled to any tolling and his habeas petition is untimely.
CONCLUSION
Having determined that Petitioner's habeas petition is untimely, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
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. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file 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 timely to file objections to any factual determinations of the Magistrate Judge will 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 Rule 72, Federal Rules of Civil Procedure.
