DEBORAH M. FINE, Magistrate Judge.
This matter is on referral pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. On October 11, 2018
The Arizona Court of Appeals provided a brief description of the events underlying Petitioner's arrest and indictment in its September 2013 memorandum decision affirming his convictions and sentences.
(Doc. 20 at 79)
Petitioner was sentenced on June 18, 2012. (Doc. 20 at 3-37) Through counsel, Petitioner filed a Notice of Appeal on June 28, 2012. (Id. at 39) On appeal, Petitioner's appellate counsel argued two grounds for relief, alleging that the trial court had erred: (1) by denying Petitioner's request for a new trial after the jury viewed part of a video-recorded witness interview during deliberations that was not admitted into evidence; and (2) by denying Petitioner's request for appointment of a mental health expert to support his defense of guilty but insane. (Id. at 42, 52-74) As noted, the Arizona Court of Appeals rejected Petitioner's arguments and affirmed his convictions and sentences. (Id. at 78-91) The Arizona Supreme Court summarily denied Petitioner's Petition for Review (Id. at 93), and the court of appeals issued its mandate on May 7, 2014. (Id. at 95)
Petitioner filed a Notice of Post-Conviction Relief ("PCR") on June 28, 2012, while his direct appeal was still pending. (Doc. 20 at 99-103) Counsel for Petitioner moved for a stay until completion of appellate proceedings. (Id. at 108) The superior court ordered Petitioner's PCR action stayed "pending the decision of the Court of Appeals." (Id. at 111) After the court of appeals issued its mandate in May 2014, the superior court gave Petitioner until December 15, 2014 to file his PCR Petition (Id. at 37), and subsequently granted Petitioner's motion for appointment of counsel and extended his filing deadline (Id. at 43). After extensions of the filing deadline, Petitioner's appointed counsel filed her Notice of No Colorable Claims for Post-Conviction Relief [Under] Rule 32.4(c)(2) on February 12, 2016. (Doc. 21 at 46-58) Counsel advised the superior court she had conducted a thorough review of the record but had been "unable to find any colorable claim of ineffective assistance of counsel or any other viable claim of error." (Id. at 50) On February 19, 2016, the superior court gave Petitioner until May 31, 2016, to file his PCR petition pro per. (Id. at 60)
In March 2016, Petitioner moved the superior court for discovery of DNA testing of bedsheets and to appoint an investigator. (Doc. 22 at 3-8) The court denied Petitioner's motions. (Id. at 10) The superior court granted Petitioner's subsequent motion for an extension of time to file his PCR petition, giving him a new deadline of July 28, 2016. (Id. at 31)
In his timely PCR petition, Petitioner alleged: (1) he had been denied his constitutional right to represent himself at trial (Id. at 38-41); (2) the superior court erred in denying his motion for a mistrial due to the jury having viewed part of a witness interview tape (Id. at 51-57); and (3) the prosecution withheld evidence related to Petitioner's request for testing of Petitioner's bedsheets (Id. at 22-24). Petitioner also alleged several claims of ineffective assistance of trial counsel, arguing counsel was constitutionally ineffective for: (1) not asserting a challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) (Id. at 42-44); (2) not cross-examining key witnesses, who were Petitioner's children and alleged victims, to reveal inconsistencies in their testimony (Id. at 45-50); (3) not arguing a Brady claim related to testing of Petitioner's bedsheets (Id. at 22-24); and (4) for not requesting a trial continuance after he was appointed a month prior to trial (Id. at 61-64).
On November 1, 2016, the superior court ruled. The superior court found that each claim Petitioner had raised was either "precluded as having been previously ruled upon or untimely filed," or that the "Petition lacks sufficient basis in law and fact to warrant further proceedings herein and no useful purpose would be served by further proceedings[.]" (Doc. 23 at 29)
Petitioner filed a petition for review with the Arizona Court of Appeals on February 16, 2017. (Id. at 31-37) The court of appeals ordered that the petition for review be dismissed as "not timely filed within the thirty (30) day time limit in accordance with Ariz. R. Crim. P. 32.9." (Id. at 47) Petitioner then filed a motion to reconsider in the Arizona Court of Appeals of its dismissal of his petition for review. (Id. at 47) The court of appeals denied Petitioner's motion to reconsider and stated that its order was "without prejudice to him requesting an extension of time from the trial court to file his petition for review." (Id. at 49)
The Arizona Supreme Court denied Petitioner's petition for review without comment on November 6, 2017. (Doc. 24 at 3) The Arizona Court of Appeals issued its mandate on January 9, 2018. (Id. at 5)
In October 2018, Petitioner filed a Special Action in the Arizona Court of Appeals, challenging the superior court's denial of "all of [Petitioner's] petitions pertaining to the reopening of [Petitioner's] PCR." (Doc. 24 at 8-10) Petitioner had filed seven motions in the superior court between June 15 and September 11, 2018. These petitions were as follows:
(Doc. 24 at 23-24) On October 1, 2018, the superior court issued an order denying Petitioner's above-listed motions. (Id. at 11-12) On October 17, 2018, the Arizona Court of Appeals declined to accept jurisdiction. (Id. at 14) Petitioner appealed to the Arizona Supreme Court, and the Petition was still pending when Respondents filed their Limited Answer. (Id. at 17; Doc. 19 at 7)
Petitioner asserts the following eight grounds in his Petition: (1) his Fourth Amendment rights were violated because items "which were not part of the particular things to be searched or seized by warrant" were "tampered with"; (2) his due process rights were violated because he was denied a speedy trial; (3) his Sixth Amendment right to represent himself was violated when he had waived his right to counsel, but was still represented by counsel; (4) his due process rights to an impartial judge were violated because the trial judge was a former family judge; (5) his due process right to receive exculpatory evidence was violated when the prosecutor did not disclose evidence of serology testing of his bedsheets that he requested; (6) he received ineffective assistance of his trial counsel and post-conviction relief counsel; (7) his right to waive counsel was violated because he signed documents waiving counsel, but was still appointed counsel for trial; and (8) his Sixth Amendment rights and his right to equal protection were violated because the jury was an all-white jury and there was jury misconduct. (Doc. 1 at 6-15)
Respondents assert the Petition was untimely filed and should be dismissed. Further, Respondents argue that the Petition grounds are procedurally defaulted without excuse and/or not cognizable in federal habeas. (Doc. 19)
A threshold issue for the Court is whether the habeas petition is time-barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9
Under AEDPA, a state prisoner seeking federal habeas relief from a state court conviction is required to file the petition within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[,]" however, "[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 any period of limitation under this subsection." 28 U.S.C. § 2244(d)(1)(A), (d)(2).
On direct review, the Arizona Supreme Court issued its order denying Petitioner's petition for review of the Arizona Court of Appeals' memorandum decision affirming Petitioner's convictions and sentences on March 21, 2014. (Doc. 20 at 93) Petitioner's convictions became final for section 2244(d)(1)(A) purposes after an additional 90-day period during which he could file a petition for writ of certiorari in the United States Supreme Court. See Caspari v. Bohlen, 510 U.S. 383, 953-54 (1994) (citing Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)). That 90-day period expired on June 19, 2014.
Therefore, unless statutory or equitable tolling apply to render the Petition timely, or unless Petitioner has made a credible showing of actual innocence under Schlup v. Delo, 513 U.S. 298, 327 (1995), the October 11, 2018, Petition would be time-barred because it was filed more than three years after the one-year limitations period of 28 U.S.C. § 2244(d)(1)(A) expired.
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). A state post-conviction relief ("PCR") petition not filed within the state's required time limit, however, is not "properly filed," and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a post-conviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)."); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not "properly filed" under AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414). A collateral review petition is "properly filed" when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9
Untimely appeals of a lower state court's decision regarding a collateral review petition are also not "properly filed" for statutory tolling purposes. This means that the time between a lower state court's ruling on a collateral review petition and an appeal to a higher state court is not statutorily tolled if the appeal is deemed untimely. Evans v. Chavis, 546 U.S. 189, 191 (2006) ("The time that an application for state postconviction review is "pending" includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law." (emphasis in original) (citing Carey v. Saffold, 536 U.S. 214 (2002)); Bonner v. Carey, 425 F.3d 1145, 1149 (9
As is noted above, Petitioner filed his Notice of PCR while his direct appeal was ongoing and the superior court ordered his PCR action stayed pending the Arizona Court of Appeals' decision on his appeal. (Doc. 20 at 111) Accordingly, Petitioner's PCR action served to toll the AEDPA one-year limitations period from June 20, 2014, (the day following expiration of the 90-day period during which to file a petition for writ of certiorari with the United States Supreme Court) through November 1, 2016, when the superior court dismissed his PCR petition. Petitioner then had 30 days from "entry of the trial court's final decision on a petition or a motion for rehearing" to petition the Arizona Court of Appeals for review. Ariz. R. Crim. P. 32.9(c)(1)(A). After adding five days pursuant to Arizona Rule of Criminal Procedure for mailing, Petitioner's deadline to file a petition for review with the court of appeals was December 6, 2016.
As noted, Petitioner filed a special action in October 2018, contesting the superior court's denial of his seven motions requesting evidence related to this trial. (Doc. 24 at 8-10) As an initial matter, the special action was filed nearly a year after the AEDPA one-year statute of limitations had run on November 1, 2017. In any event, however, "[p]etitions for writ of mandate do not toll the limitations period because they are not application[s] for State post-conviction or other collateral review with respect to the pertinent judgment or claims within the meaning of § 2244(d)(2)." Hardiman v. Galaz, 58 F.App'x 708, 710 (9
Petitioner has failed to establish any grounds for statutory tolling of the AEDPA statute of limitations beyond November 1, 2017. Accordingly, absent equitable tolling or a credible showing of actual innocence under Schlup v. Delo, 513 U.S. at 327, the Petition filed on October 11, 2018 is time-barred.
The U.S. Supreme Court has held "that § 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. Id. at 645-46. It is Petitioner's burden to establish that equitable tolling is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9
The Ninth Circuit Court of Appeals "will permit equitable tolling of AEDPA's limitations period `only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Miles v. Prunty, 187 F.3d 1104, 1107 (9
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, 448 F.3d at 1154 ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling."); see also Ballesteros v. Schriro, CIV 06-675-PHX-EHC (MEA), 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). 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 (5
Petitioner does not discuss any reason for untimeliness in the Petition. Nor does he give reasons why his petition for review of the superior court's dismissal of his PCR petition was late by several months or why he failed to request the superior court for an extension of time to file his petition for review, as had been suggested by the Arizona Court of Appeals. (Doc. 1 at 17) As noted, Petitioner has not filed a reply to Respondents' limited answer.
After reviewing the record, undersigned concludes that neither the Petition nor the record sets forth grounds that justify equitable tolling. Because Petitioner has not met his burden of showing extraordinary circumstances that made it impossible for him to file a timely petition for habeas corpus and he has not shown reasonable diligence, equitable tolling is unavailable.
If a district court finds that a federal habeas petition is untimely, the untimeliness may be excused in rare instances by an equitable exception to AEDPA's statute of limitations. In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the "actual innocence gateway" to federal habeas review that applies to procedural bars in Schlup v. Delo, 513 U.S. at 327, and House v. Bell, 547 U.S. 518 (2006), extends to petitions that are time-barred under AEDPA. See Schlup, 513 U.S. at 329 (petitioner must make a credible showing of "actual innocence" by "persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt."). However, Petitioner does not argue, let alone meet, this excuse for untimeliness of his Petition.
Based on the above analysis, the undersigned finds the Petition is untimely. Because the Petition is untimely, undersigned did not reach the other ground(s) raised by Respondents. The undersigned recommends that the Petition for Writ of Habeas Corpus (Doc. 1) be dismissed as untimely and with prejudice. Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in its procedural ruling. Accordingly, to the extent the District Judge adopts this Report and Recommendation regarding the Petition, a certificate of appealability should be denied.
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) of the 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); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any 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 (9
