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 Safford, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 9, 2018 (Doc. 1). On November 1, 2018, Respondents filed their Limited Response (Doc. 11). Petitioner has not replied.

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

On May 5, 2010, in exchange for an offer of $200, 19 year old Petitioner and co-defendant Booz Moreno (his five-years older uncle and co-worker) assisted co-defendant Adan Gonzalez with beating up the victim (including with a metal bar and shotgun). Gonzalez believed the victim was having an affair with Gonzalez's mother. After the beating, they left the victim's house, but shortly returned to threaten the victim with deportation if he contacted law enforcement. Gonzalez then cut the victim's throat and the other two perpetrators stole various property. Concerned about evidence, the three left the house, purchased gasoline and, on returning, poured gasoline on the victim's body and throughout the house, and set them on fire. (Exhibit E, Presentence Investig. at 1-2; Exhibit FF, R.T. 5/29/12 at 12-14 (factual basis for plea).) (Exhibits to the Answer, Doc. 11, are referenced herein as "Exhibit ___.")

B. PROCEEDINGS AT TRIAL

Petitioner and the two co-defendants were charged in an Indictment issued on May 13, 2010 (Exhibit A). They were all charged with first degree murder, burglary, kidnapping, arson, and aggravated assault. (Booz Moreno was also charged with two counts of weapons misconduct.) The prosecution filed Allegations of Aggravating Circumstances (Exhibit B) against Petitioner, alleging serious physical injury, use of deadly weapons or dangerous instruments, property damage, accomplice, heinous cruel or depraved manner, harm to the victims, severe or extreme pain, brutal violent or vicious manner, leaving the scene, covering up, failure to aid the victim, offense while on probation, and violation of probation.

Eventually, Petitioner entered into a written Plea Agreement (Exhibit C), agreeing To plead guilty to an amended charge of second degree murder, and arson of an occupied structure. The Plea Agreement stipulated to a flat sentence of 1 to 22 years on the murder charge, and a consecutive term of 12.5 years on the arson. The other charges were to be dismissed, but restitution up to $1,000,000 was to be paid on all charges. On May 29, 2012, Petitioner entered his guilty plea. (Exhibit D, M.E. 5/29/12.)

A Presentence Investigation Report was filed (Exhibit E), and on August 7, 2012, Petitioner appeared for sentencing and was sentenced to 22 years flat on the murder, and a consecutive 12.5 years on the arson, the maximum sentence permitted under the plea agreement.1

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner alleges in the Petition that he did file a direct appeal with the Arizona Court of Appeals (Petition, Doc. 1 at 2), but the filing date (May 29, 2015) correlates with the signature date on his Petition for Review with the Arizona Court of Appeals in his PCR proceeding (Exhibit BB), and case number and case number (CR2010-123998-001 DT) is the trial court case number (see Indictment, Exhibit A).

Respondents make no reference to a direct appeal.

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).

The undersigned finds that Petitioner did not file a direct appeal.

D. PROCEEDINGS ON POST-CONVICTION RELIEF

On November 1, 2012, Petitioner filed a timely, of-right notice of post-conviction relief (Exhibit G). Petitioner was appointed counsel (Exhibit H, M.O. 11/13/12). Counsel eventually filed a Notice of Completion of Review (Exhibit Q), evidencing an inability to find an issue for review. Petitioner was granted leave to file a pro per PCR petition, and counsel was directed to remain in an advisory capacity. (Exhibit R, M.O. 4/23/14.)

Petitioner eventually filed his PCR Petition (Exhibit X), arguing that his sentences were illegal because: (1) they were entered in violation of Blakely v. Washington, 542 U.S. 296 (2004) because a jury did not find the aggravating circumstances; (2) no explanation was given for making the arson sentence consecutive; (3) there was no mitigation hearing; (4) Petitioner was a first time offender; and (5) he was "merely present." He also argued trial and PCR counsel were ineffective for failing to raise the sentencing claims.

On April 14, 2015, the PCR court denied the petition. (Exhibit AA, M.O. 4/14/15.)

Petitioner filed a Petition for Review (Exhibit BB) largely raising the same issues, but asserting various additional constitutional bases for relief. The Arizona Court of Appeals granted review, but denied relief, in a Memorandum Decision filed February 16, 2017 (Exhibit DD).

Petitioner did not seek further review. (Exhibit EE, Email from Arizona Supreme Court Clerk; Petition, Doc. 1 at 5.)

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition — Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 9, 2018 (Doc. 1). Petitioner's Petition asserts the following three grounds for relief:

In Ground One, Petitioner alleges his trial counsel was ineffective for failing to request a mitigation specialist during sentencing proceedings. In Ground Two, Petitioner claims his Rule 32 counsel was ineffective for failing to contact or communicate with Petitioner before notifying the trial court that he was unable to find a colorable claim. In Ground Three, Petitioner contends that his sentences violate applicable statutes and case law and is therefore unconstitutional.

(Order 8/7/19, Doc. 6 at 1-2 (emphasis added).)

Response — On November 1, 2018, Respondents filed their Limited Answer (Doc. 11). Respondents argue the petition is untimely, Ground 2 is not cognizable, and Petitioner has procedurally defaulted his state remedies on Grounds 1 and 3.

Reply — In the service Order, the Court provided that any reply was due "within 30 days from the date of service of the answer." (Order 8/7/19, Doc. 6 at 3.) That date has passed, and Petitioner has not filed a reply.

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

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).2

For an Arizona noncapital pleading defendant, "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)).

Thus, the conviction of a pleading defendant becomes "final" at the conclusion of the first "of-right" post-conviction proceeding under Rule 32, or the expiration of the time to do so.

Petitioner filed a timely petition for review with the Arizona Court of Appeals (Exhibit BB), which remained pending until February 16, 2017, when that court granted review and denied relief. (Exhibit DD.) Thereafter, Petitioner had 30 days to seek review by the Arizona Supreme Court. See Ariz. R. Crim. Proc. 31.21(b)(2) (30 days after court of appeals decision, unless motion for reconsideration filed). Under this Rule, Petitioner had until March 18, 2017 to file his petition for review.

Respondents argue that this marked the finality of Petitioner's judgment. However, Arizona applies Arizona Rule of Criminal Procedure 1.3 to extend "the time to file an appeal by five days when the order appealed from has been mailed to the interested party and commences to run on the date the clerk mails the order." State v. Zuniga, 163 Ariz. 105, 106, 786 P.2d 956, 957 (1990). This rule has been extended to post-conviction relief proceedings. See State v. Goracke, 210 Ariz. 20, 21 n.1, 106 P.3d 1035, 1036 n.1 (Ct. App. Div. 1 2005). See also State v. Brock, 163 Ariz. 523, 526, 789 P.2d 390, 393 (Ct. App. Div. 1 1989) (supplemental opinion), aff'd, 165 Ariz. 296, 798 P.2d 1305 (1990) (applying to PCR motion for reconsideration of appellate court ruling).3 Respondents do not address this rule. There is no indication that the appellate court's decision was delivered to Petitioner or his counsel by any means other than mailing. Accordingly, the undersigned assumes arguendo that the rule applies, and that Petitioner had an additional five days, until March 23, 2017, to file his petition with the Arizona Supreme Court.4

For purposes of 28 U.S.C. § 2244, "direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The Supreme Court "can review, however, only judgments of a `state court of last resort' or of a lower state court if the `state court of last resort' has denied discretionary review." Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (citing U.S. Sup.Ct. R. 13.1 and 28 U.S.C. § 1257(a)). Here, Petitioner did not seek direct review by the Arizona Supreme Court. Accordingly, the time for seeking a writ of certiorari with the U.S. Supreme Court cannot be considered in determining when Petitioner's judgment became final. Id.

Based on the foregoing (and with the assumptions in Petitioner's favor), Petitioner's conviction became final no later than March 23, 2017, upon the expiration of his time to file a petition for review with the Arizona Supreme Court.

Therefore, Petitioner's one year began running no later than March 24, 2017, and without any tolling expired no later than Friday, March 23, 2018.5

3. Timeliness Without Tolling

Petitioner's Petition (Doc. 1) was filed on April 9, 2018.

However, the Petition is dated April 4, 2018, and includes a declaration under penalty of perjury that it "was placed in the prison mailing system" on that date. (Petition, Doc. 1 at 11.) "In determining when a pro se state or federal petition is filed, the `mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing." Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Respondents do not counter Petitioner's declaration. The undersigned finds the petition was delivered to prison officials for mailing on April 4, 2018, and concludes that the Petition must be deemed "filed" as of that date.

As determined in subsection (1) above, without any tolling Petitioner's one year habeas limitations period expired no later than March 23, 2018, making his April 4, 2018 Petition at least twelve days 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 review 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).

Petitioner makes no assertion of any timely state applications after his conviction became final (upon expiration of his time for seeking review by the Arizona Supreme Court in his of-right PCR proceeding). The undersigned finds there were none.

Petitioner makes no any claim to statutory tolling, and the under signed concludes he is entitled to none.

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).

Petitioner does not proffer any grounds for equitable tolling, and the undersigned finds none.

6. Actual Innocence

To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 244(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 makes no such claim of actual innocence based on new evidence, and the undersigned finds no basis to invoke the exception.

7. Summary re Statute of Limitations

With the assumptions in Petitioner's favor adopted herein, Petitioner's one year habeas limitations period commenced running no later than March 24, 2017, and expired no later than Friday, March 23, 2018, making his April 4, 2018 Petition at least twelve days 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

Respondents other defenses are not reached for the following reasons.

First, the undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations.

Second, the non-cognizability defense regarding Ground 2 (IAC PCR) fails to acknowledge that Petitioner's first, of-right PCR proceeding was the functional equivalent of a direct appeal, and thus Petitioner had a constitutional right to counsel in that proceeding, including the application of the safeguards under Anders v. California, 386 U.S. 738 (1967). See Pacheco v. Ryan, CV-15-02264-PHX-DGC, 2016 WL 7407242 (D.Ariz. 2016), and the cases cited therein. Thus, Petitioner's claim of ineffective assistance of PCR counsel in Ground 2 appears to be cognizable federal claim.

Third, ineffectiveness of PCR counsel could be cause to excuse Petitioner's failure to exhaust his state remedies as to his claim of ineffective assistance of trial counsel in Ground 1. It is true a claim of ineffective assistance as a basis for cause and prejudice must first be exhausted in the state courts. Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). However, Petitioner asserted a claim of ineffective assistance of PCR counsel to the PCR Court (see Exhibit X, PCR Pet. at 3B-3C) and the Arizona Court of Appeals (see Exhibit BB, PFR at 3-4). Those courts both addressed the claim of ineffective assistance of PCR counsel on its merits. (Exhibit AA, M.O. 4/14/15 at 6; Exhibit DD, Mem.Dec. at ¶ 6.) Thus, not only could the ineffectiveness of PCR counsel be cause to excuse any procedural default on Ground 1's claim regarding trial counsel, it could be a properly exhausted claim in Ground 2.

Fourth, even if Petitioner's PCR proceeding is treated as a post-conviction application (rather than a direct appeal), then regardless whether Petitioner exhausted his state remedies on the PCR ineffectiveness claim, it still can establish cause to excuse any procedural default of the trial ineffectiveness claim under Martinez v. Ryan, 566 U.S. 1 (2012). See Dickens v. Ryan, 740 F.3d 1302, 1322, n.17 (9th Cir. 2014) ("there seems to be no requirement that the claim of ineffective assistance of PCR counsel as cause for an ineffective-assistance-of-sentencing-counsel claim be presented to the state courts").

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 April 9, 2018 (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).

In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that "[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages."