Opinion
CV-23-01488-PHX-ROS (DMF)
03-14-2024
Francisco v. Chala, Petitioner, v. Ryan Thornell, et al., Respondents.
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 7 at 4)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-23-01488-PHX-R0S (DMF).
Petitioner Francisco V. Chala (“Petitioner”), who is confined in the Arizona State Prison Complex in Buckeye, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on July 27, 2023. (Doc. 1) On September 12, 2023, the Court ordered Respondents to answer the Petition. (Doc. 7 at 3-4)
On November 21, 2023, Respondents filed their Limited Answer to the Petition. (Doc. 13) To their Limited Answer, Respondents attached a Certificate of Service, stating that they mailed the Limited Answer and attached exhibits to Petitioner's mailing address as reflected on the Court's docket. (Id. at 24; see Doc. 12) Despite proper service of the Limited Answer, Petitioner did not file a reply, and the time to do so expired in late December 2023. (See Doc. 7 at 4)
See also https://perma.cc/7HER-YKNC (last accessed on 3/13/2024).
For the reasons set forth below, it is recommended that these proceedings be dismissed with prejudice as untimely, that the Clerk of Court be directed to terminate this matter, and that a certificate of appealability be denied.
I. BACKGROUND
A. Charges, Convictions, and Sentences
In affirming Petitioner's convictions and sentences in Maricopa County Superior Court case number CR 96-02154, the Arizona Court of Appeals summarized the events leading to the charges against Petitioner:
[Petitioner] and Jose Mercado argued with D.N. because they thought D.N. had been “disrespecting” [Petitioner's] girlfriend. The argument, which lasted twenty-five to thirty minutes, took place in the parking lot of the tirlfriend's apartment. [Petitioner] and Mercado eventually got into a car and rove away. As they did so, Mercado fired three shots into the air. A short time later, [Petitioner] and Mercado again confronted D.N. as he walked down the street. After a brief argument, [Petitioner] and Mercado shot D.N. and his friend, D.H., who also happened to be in the area. D.N. was severely injured and D.H. died. Detectives arrested [Petitioner] and Mercado two days later and interviewed them at police headquarters.
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
On March 1, 1996, a Maricopa County grand jury indicted Petitioner with two crimes: murder in the first degree, a class 1 dangerous felony (count 1), and attempted murder in the first degree, a class 2 dangerous felony, or in the alternative, aggravated assault, a class 3 dangerous felony (count 2). (Id. at 4-6) The state later moved to dismiss the allegation of aggravated assault in count 2. (Id. at 8-9) During trial court proceedings, Petitioner was represented by appointed counsel Charles J. Babbitt of the Office of the Legal Defender (“trial counsel”). (See, e.g., id. at 11, 14, 18, 46, 53) Petitioner was also assisted by a Spanish language interpreter during trial court proceedings. (Id.)
Following a multi-day jury trial, on December 22, 1997, a jury found Petitioner not guilty of one count of first-degree murder (count 1) but found Petitioner guilty of the lesser-included offense of second-degree murder as to count 1. (Id. at 39, 42; see also id. at 1112, 14-16, 18-19, 21-25, 27-29, 31-34, 36-37, 39-40) As to count 2, the jury found Petitioner guilty of attempted first-degree murder. (Id. at 40, 44)
On February 20, 1998, the trial court sentenced Petitioner to a 16-year term of imprisonment as to the lesser included offense in count 1 and a 21-year term of imprisonment as to count 2, to be served consecutively, with 729 days of presentence incarceration credit as to both counts. (Id. at 46-51) Following Petitioner's imprisonment, the trial court imposed community supervision in the amount of one day for every seven days of the sentence imposed. (Id. at 49) The trial court further ordered restitution to the victims in the amount of $47,305.62. (Id.) The trial court advised Petitioner of and provided written notice of Petitioner's rights of review after conviction. (Id.)
B. Petitioner's Direct Appeal
On February 23, 1998, Petitioner and his trial counsel filed notices of appeal of Petitioner's convictions and sentences. (Id. at 53, 55) On July 27, 1998, through appellate counsel Richard L. Strohm (“appellate counsel”), Petitioner filed an opening brief in the court of appeals. (Id. at 67-86) In his opening brief, Petitioner raised four issues for review: (1) whether the trial court erred when it held Petitioner's statements to a detective to be voluntary, (2) whether the trial court erred when it denied Petitioner's motion in limine regarding evidence of the deceased victim's disabilities and the surviving victim's residual impairment following the shooting, (3) whether the trial court erred in admitting autopsy photos of the deceased victim despite Petitioner's objection, and (4) whether the trial court erred in denying Petitioner's two Rule 20 motions for directed verdict of acquittal. (Id.)
The state filed a response brief (Id. at 88-117), and Petitioner filed a reply (Id. at 119-39)
On March 2, 1999, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences, finding that the trial court did not err in finding Petitioner's statements to a detective to be voluntary; did not err in allowing the surviving victim to testify regarding his injuries and the deceased victim's disabilities; did not err in admitting photographs of the deceased victim; and properly denied Petitioner's Rule 20 motion. (Id. at 141-48)
On April 28, 1999, Petitioner filed a pro se petition for review to the Arizona Supreme Court. (Id. at 150-71) On August 27, 1999, the Arizona Supreme Court denied Petitioner's petition for review. (Id. at 173) On September 23, 1999, the Arizona Court of Appeals issued the mandate. (See Doc. 13-2 at 13)
C. First Post-Conviction Relief (“PCR”) Proceedings
On March 9, 1998, Petitioner filed a pro se PCR notice (“first PCR notice”) in the superior court and requested appointment of PCR counsel. (Doc. 13-1 at 57-60) On August 24, 1998, through appellate counsel, Petitioner filed a Motion for Stay of Rule 32 Proceedings pending the conclusion of Petitioner's direct appeal in the court of appeals. (Id. at 62-63) The superior court granted Petitioner's Motion for Stay of Rule 32 Proceedings and ordered appellate counsel to file notices of the status of Petitioner's direct appeal. (Id. at 65)
The prison mailbox rule applies to Petitioner's PCR notice. Melville, 68 F.4th at 1159 (“We assume that [Melville] ‘turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.' Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam).”). Petitioner's PCR notice was signed on March 9, 1998. (Doc. 13-1 at 58-59)
On March 2, 2000, Petitioner's appointed PCR counsel J. Douglas McVay (“PCR counsel”) filed a Notice of Completion, in which PCR counsel asserted that he found no colorable issues to raise and requested additional time for Petitioner to file a pro se PCR petition. (Id. at 175-78)
On August 8, 2000, the state filed a Motion to Dismiss Rule 32 Proceeding because Petitioner had not filed a pro se PCR petition following an extension of time to do so. (Id. at 180-81) On September 19, 2000, the superior court granted the state's motion to dismiss and dismissed Petitioner's first PCR proceedings. (Doc. 13-2 at 3-4) The record does not reflect that Petitioner filed a motion for reconsideration or a petition for review of the superior court's dismissal of his first PCR proceedings.
Further, the electronic docket maintained by the Maricopa County Superior Court does not reflect that Petitioner filed a motion for reconsideration or a petition for review of the superior court's dismissal of his first PCR proceedings. See https://perma.cc/TT8K-6KZJ (identifying Petitioner as Defendant (3) or Party (A)) (last accessed March 1, 2024).
D. Second PCR Proceedings
Over three years later, on December 3, 2003,6 Petitioner filed a second pro se PCR notice in the superior court (“second PCR notice”), asserting that the untimeliness of his notice should be excused because his legal paperwork was lost and was not returned to Petitioner until April 2003. (Id. at 6-9, 11)
See footnote 4, supra.
On January 19, 2004, the superior court dismissed Petitioner's second PCR notice, finding that pursuant to Ariz. R. Crim. P. 32.1(a), Petitioner's PCR notice was due within 30 days of the mandate in Petitioner's direct appeal, by October 23, 1999. (Id. at 13) The superior court found that Petitioner had not shown that the failure to timely file his second PCR notice was without Petitioner's fault. (Id.) The record does not reflect that Petitioner filed a motion for reconsideration or a petition for review of the superior court's dismissal of his second PCR proceedings.
See footnote 5, supra.
E. Third PCR Proceedings
Over four years later, on December 9, 2008,8 Petitioner filed a third pro se PCR notice (“third PCR notice”) in the superior court. (Id. at 15-25) Petitioner asserted that his 21-year sentence as to count 2 was improperly aggravated and that the Arizona Department of Corrections miscalculated Petitioner's sentences. (Id.)
On March 13, 2009, the superior court denied Petitioner's third PCR notice. (Id. at 27-28) In doing so, the superior court stated:
[Petitioner's] untimely petition states that he seeks relief based on newly
discovered material facts and a significant change in law that would probably overturn his conviction or sentence. In order for a Defendant to be entitled to post-conviction relief based on newly discovered evidence, [Petitioner] must show that the evidence was discovered after trial although existed before trial; the evidence could not have been discovered and produced at trial through reasonable diligence; the evidence is neither cumulative nor impeaching; the evidence is material; and the evidence probably could have changed the verdict. State v. Saenz, 197 Ariz. 487, 489 ¶ 7, 4 P.3d 1030, 1032 (App. 2000). [Petitioner] fails to meet this standard or to even allege what newly discovered facts entitle him to relief. Similarly, [Petitioner] fails to specify what change in law would probably overturn his sentence.
[Petitioner] argues that he improperly received an aggravated sentence on one count. [Petitioner] cannot raise this claim in an untimely Rule 32 proceeding because an untimely notice may only raise claims pursuant to Rule 32.1(d), (e), (f), (g), or (h). Ariz. R. Crim. P. 32.4(a). In addition, [Petitioner] is precluded from relief on this claim pursuant to Rule 32.2(a) because it either was raised or could have been raised on appeal or in a prior Rule 32 proceeding.
[Petitioner] claims that the Arizona Department of Corrections (“ADOC”) has miscalculated his sentence. The Court does not have authority to determine earned release credits, release date, or eligibility for release. These are matters for the Director of the ADOC, who is not a party to this criminal case. [Petitioner] has not demonstrated that he is being held in custody beyond the expiration of his sentence, as required by Rule 32.1(d), and has not stated any other claim upon which relief can be granted in a Rule 32 proceeding.(Id.)
See footnote 4, supra.
The record does not reflect that Petitioner filed a motion for reconsideration or a petition for review of the superior court's denial of his third PCR notice.
See footnote 5, supra.
F. Fourth PCR Proceedings
Over ten years later, on May 13, 2020, Petitioner filed a fourth pro se PCR notice (“fourth PCR notice”) in the superior court. (Id. at 30-110) In his fourth PCR notice, Petitioner argued that the state court lacked jurisdiction; that the untimeliness of his PCR notice should be excused; that his sentences were illegal; that the superior court improperly dismissed Petitioner's first PCR notice without appointment of counsel; that the superior court violated Petitioner's rights under Apprendi v. New Jersey, 530 U.S. 466 (2000); and that he was unable to raise his ineffective assistance of counsel (“IAC”) claims in previous PCR proceedings due to a change in the law. (Id. at 31-52)
See footnote 4, supra.
On July 28, 2020, the superior court dismissed Petitioner's fourth PCR notice. (Id. at 112-14) In doing so, the superior court stated:
A. Rule 32.1(b) Claim
In his current submission, [Petitioner] contends that the Court lacks subject matter jurisdiction and consequently he is entitled to relief pursuant to Ariz. R. Crim. P. 32.1(b). (Notice at 2) The Court disagrees. Subject matter jurisdiction refers to a court's power to hear a case. Article 6, Section 14(4) of the Arizona Constitution vests original jurisdiction in the Arizona Superior Courts over [c]riminal cases amounting to a felony.” A.R.S. § 12-123(A). Accordingly, this Court had subject matter jurisdiction to adjudicate [Petitioner's] felonies.
B. Rule 32.4(b)(3)(D) Claim
[Petitioner] contends that any untimeliness of this proceeding is without fault on his part. (Notice at 5, 3) This claim arises under Ariz. R. Crim. P. 32.4(b)(3)(D). [Petitioner] offers no factual support, nor does he provide legal authority for applying the rule to a fourth Rule 32 proceeding.
C. Rule 32.1(a) and Rule 32.1(c) Claims
[Petitioner] claims his convictions and sentences were obtained in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and Article 2, Sections 13 and 24 of the Arizona Constitution, thereby entitling him to relief under Ariz. R. Crim. P. 32.1(a). (Notice at 7) Specifically, [Petitioner] claims that he received ineffective assistance of counsel or was deprived of counsel, and the Court violated his due process rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). (Id. at 20, 3, 12) In addition, [Petitioner] erroneously complains that attempted first-degree murder is not a cognizable offense. (Id. at 13) The record reflects that [Petitioner] raised claims of erroneous sentence aggravation in his third Rule 32 proceeding and never pursued them on appeal. The Court rejected the argument in dismissing the third Rule 32 proceeding. To the extent that he is raising new Rule 32.1(a) claims, relief is barred. See Ariz. R. Crim. P. 32.2(a)(3).
[Petitioner] argues that his sentences are illegal pursuant to Ariz. R. Crim. P. 33.1(c). (Notice at 13) Rule 32.1(c) claims are “not subject to preclusion under Rule 32.2(a)(3).” Ariz. R. Crim. P. 32.2(b). The Rule 32.1(c) claim must be filed “within a reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P. 32.4(b)(3)(B). [Petitioner] does not explain when he discovered the issue. To the extent this claim is based upon Apprendi, the case does not apply for reasons explained more fully below.
Alternatively, [Petitioner] contends that the Court should not have dismissed his first Rule 32 proceeding without appointing counsel. (Notice at 11-13) [Petitioner] may not litigate prior Rule 32 rulings in this proceeding. If [Petitioner] is dissatisfied with this Court's rulings, his remedy is to seek review in the Arizona Court of Appeals. Furthermore, his reliance on Osterkamp and Pruett is misplaced and erroneous, because those cases apply to Defendants who pled guilty. (Id. at 9-10)
D. Rule 32.1(g) Claim
[Petitioner] also contends that a significant change in law occurred that would alter his convictions or sentence if applicable retroactively under Ariz. R. Crim. P. 32.1(g). (Notice at 3) Rule 32.1(g) claims are “not subject to preclusion under Rule 32.2(a)(3).” Ariz. R. Crim. P. 32.2(b). The Rule 32.1(g) claims must be filed “within a reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P. 32.4(b)(3)(B). Rule 32.1(g) does not define “a significant change in the law.” State v. Shrum, 220 Ariz. 115, 118, ¶ 15, 203 P.3d 1175, 1178 (2009). The Arizona Supreme Court construes the rule to require “some transformative events, a ‘clear break from the past.'” Id. (quoting State v. Slemmer, 170 Ariz. 174, 182, 823 P.2d 41, 49 (1991)). This change occurs, for example, when an appellate court overrules previously binding authority. Id. at ¶ 16. [Petitioner] relies upon Apprendi, but the reliance is misplaced. Apprendi does not apply retroactively because [Petitioner's] sentence became final before Apprendi was decided. See State v. Feebles, 210 Ariz. 589, 595, ¶ 17, 115 P.3d 629, 635 (App. 2009).
E. Rule 32.1(e) Claim
He further claims relief based upon newly discovered material facts pursuant to Ariz. R. Crim. P. 32.1(e). (Notice at 3) The Rule 32.1(e) claim must be filed “within a reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P. 32.4(b)(3)(B). To be entitled to Rule 32.1(e) relief, [Petitioner] 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. See State v. Saenz, 197 Ariz. 487, 489, ¶ 7, 4 P.3d 1030, 1032 (App. 2000), see also Ariz. R. Crim. P. 32.1(e). [Petitioner] does not provide any newly discovered facts or any information to support the other elements of a Rule 32.1(e) claim. The exhibits to his Notice - which include a transcript, an indictment, court rulings, and verdict forms - are not new facts for purposes of Rule 32.1(e). Moreover, newly discovered legal authorities do not support Rule 32.1(e) relief based upon newly discovered material facts.
In sum, [Petitioner] has failed to state a claim for which relief can be granted in a successive Rule 32 proceeding. [Petitioner] must assert substantive claims and adequately explain the reasons for their untimely assertion. Ariz. R. Crim. P. 32.2(b). He has failed to meet this standard.(Id.)
The record does not reflect that Petitioner filed a motion for reconsideration or a petition for review of the superior court's dismissal of his fourth PCR notice.
See footnote 5, supra.
G. Fifth PCR Proceedings
Over a year later, on November 16, 2021, Petitioner filed a fifth pro se PCR notice (“fifth PCR notice”) and PCR petition in the superior court. (Id. at 116-18, 120-45) In his fifth PCR notice and associated PCR petition, Petitioner asserted that he received an illegal sentence; that his trial counsel was ineffective for failure to object to Petitioner's sentence; that his appellate counsel was ineffective for failure to challenge Petitioner's sentence; that Petitioner was entitled to “latitude as to technical errors” because Petitioner was proceeding pro se; that Petitioner improperly received a term of community supervision; that Petitioner had mental health issues; and that Petitioner was taken advantage of because Petitioner was a foreign national and relied on another inmate who made incorrect filings. (Id. at 125-36)
See footnote 4, supra.
On January 25, 2022, the superior court dismissed Petitioner's fifth PCR notice and associated PCR petition. (Id. at 147-50) In doing so, the superior court stated:
A. Rule 32.4(b)(3)(D) Claim
In his current submission, [Petitioner] contends that any untimeliness of this proceeding is without fault on his part. (Notice at 3) This claim arises under Ariz. R. Crim. P. 32.4(b)(3)(D). [Petitioner] describes himself as a foreign national without knowledge of the U.S. legal system. (Notice at 3; Petition at 3) He also claims that the prior Rule 32 proceedings were unsuccessful because he was relying upon help from an uninformed inmate. (Petition at 15, 17) But [Petitioner] fails to provide authority for applying Rule 32.4(b)(3)(D) to a fifth Rule 32 proceeding.
B. Rule 32.1(a) and Rule 32.1(c) Claims
[Petitioner] also claims his convictions and sentences were obtained in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution, thereby entitling him to relief under Ariz. R. Crim. P. 32.1(a). (Notice at 2; Petition at 1, 7, 10-14) Specifically, [Petitioner] claims that he received ineffective assistance of counsel at trial and on appeal, his sentences are cruel, unusual, and nonsensical because the attempted murder sentence is longer than the second-degree murder sentence, his sentences should be concurrent under A.R.S. § 13-116 because the underlying offenses occurred at the same time, his attempted murder sentence was erroneously aggravated, and the sentences fail to account for his post-sentencing diagnosis of post-traumatic stress disorder and other mental health issues. (Petition at 1, 3, 6-14) The record reflects that [Petitioner] raised claims of erroneous sentence aggravation in his third Rule 32 proceeding and never pursued them on appeal. Likewise, [Petitioner] previously raised ineffective assistance of counsel claims, and relief on that ground is precluded. See Ariz. R. Crim. P. 32.2(a)(2); State v. Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002) (“Our basic rule is that where ineffective assistance of counsel claims are raised, or could have been raised, in a ... post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.”) (Emphasis in original). To the extent that he is raising new Rule 32.1(a) claims, relief is also precluded. See Ariz. R. Crim. P. 32.2(a)(3).
He also argues that his sentences are illegal pursuant to Ariz. R. Crim. P. 32.1(c). (Notice at 2; Petition at 2) Rule 32.1(c) claims are “not subject to
preclusion under Rule 32.2(a)(3).” Ariz. R. Crim. P. 32.2(b). The Rule 32.1(c) claim must be filed “within a reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P. 32.4(b)(3)(B). [Petitioner] does not explain when he discovered these issues. He complains that this Court never provided reasons for running his murder sentence consecutively to the attempted murder sentence. (Petition at 9) This argument rests upon a faulty premise. At the time of [Petitioner's] offense, the applicable statute was A.R.S. § 13-708(A), which provided: “Except as otherwise provided by law, if multiple sentences of imprisonment are imposed on a person at the same time, the sentence or sentences imposed by the court shall run consecutively unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence.” In other words, consecutive sentences are the default if the Court fails to specify whether sentences run concurrently or consecutively. Therefore, the Court was not required to articulate reasons for running the murder sentence consecutively. See id.
His remaining sentencing claims are also unavailing. [Petitioner] contends that A.R.S. § 13-116 required the Court to impose concurrent sentences because the offenses occurred at the same time. (Petition at 6, 9) Nothing in the statute requires a Court to run sentences concurrently when different victims are involved, however. See State v. Hampton, 213 Ariz. 167, 182, ¶¶ 64-65, 140 P.3d 950, 965 (2006) (upholding consecutive sentences for homicide victims). The Court also rejects the argument that the sentencing order lacks clarity and community supervision cannot apply to a flat sentence. (Petition at 7, 13) See State v. Jenkins, 193 Ariz. 115, 119-20, ¶¶ 11-14, 970 P.2d 947, 951-52 (App. 1998) (holding that community supervision is mandatory and applies to calendar year “flat-time” sentences).
C. Rule 32.1(e) Claim
He further claims relief based upon newly discovered material facts pursuant to Ariz. R. Crim. P. 32.1(e). (Notice at 3; Petition at 2) The Rule 32.1(e) claim must be filed “within a reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P. 32.4(b)(3)(B). To be entitled to Rule 32.1(c) relief, [Petitioner] 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. See State v. Saenz, 197 Ariz. 487, 489, ¶ 7, 4 P.3d 1030, 1032 (App. 2000), see also Ariz. R. Crim. P. 32.1(e). [Petitioner] does not provide any newly discovered facts or any information to support the other elements of a Rule 32.1(e) claim. The partial sentencing transcript attached to the Petition is not a new fact or evidence for purposes of Rule 32.1(e). [Petitioner] is relying upon his post-sentencing diagnosis of post-traumatic stress disorder as well as other unspecified “mental health issues.” (Petition at 14) Because [Petitioner] provides no context or information about when the issue was discovered, the Court cannot determine whether he has exercised reasonable diligence in raising the issue with the Court. It is not even clear to the Court whether the alleged trauma occurred prior to sentencing or thereafter. Nor is the Court persuaded, on this record, that the diagnosis would have made a difference at sentencing.
D. Rule 32.1(d) Claim
Alternatively, [Petitioner] contends that he is or will be held beyond the expiration of his sentences, and consequently is entitled to relief under Ariz.R. Crim. P. 32.1(d). (Notice at 3; Petition at 2, 17) [Petitioner's] argument is premised upon the Court adopting his sentencing error arguments. Because the Court rejected those arguments, and the sentencing terms manifestly have not expired, [Petitioner] is not entitled to Rule 32.1(d) relief.
In sum, [Petitioner] has failed to state a claim for which relief can be granted in a successive Rule 32 proceeding. [Petitioner] must assert substantive claims and adequately explain the reasons for their untimely assertion. Ariz. R. Crim. P. 32.2(b). He has failed to meet this standard.(Id.)
On March 1, 2022, Petitioner filed a petition for review in the Arizona Court of Appeals. (Id. at 152-63) In his petition for review, Petitioner argued that he was precluded from raising ineffective assistance of counsel, that his sentences were illegal, that newly discovered material facts existed, that he was in custody “beyond legal time” because his sentences were illegal, and that the untimeliness of his PCR notice was excused. (Id.)
See footnote 4, supra.
On December 15, 2022, the court of appeals granted review but denied relief, determining that Petitioner had not shown that the superior court abused its discretion in denying Petitioner's fifth PCR notice and associated PCR petition. (Id. at 165)
On January 20, 2023, Petitioner filed a petition for review in the Arizona Supreme Court. (Id. at 167-72) On June 2, 2023, the Arizona Supreme Court denied Petitioner's petition for review. (Id. at 174)
II. PETITIONER'S HABEAS CLAIMS
In his July 27, 2023, Petition, Petitioner raises four grounds for relief. (Doc. 1) In Ground One, Petitioner asserts that he received illegal sentences due to “double counting” and to his sentences being run consecutively. (Id. at 6) Petitioner argues that the sentencing court “left out statutes,” that he received a longer sentence for an attempted offense than for a completed offense, that community supervision was applied to a sentence of “calendar years,” and that the judge, not a jury, found aggravating factors. (Id.) In Ground Two, Petitioner asserts that he received ineffective assistance of trial counsel because trial counsel did not object to an illegal sentence, failed to object to other unspecified mistakes that caused Petitioner not to have a fair trial, and failed to mention Petitioner's PTSD. (Id. at 8) In Ground Three, Petitioner asserts that he received ineffective assistance of appellate counsel because appellate counsel failed to raise issues regarding illegal sentences. (Id. at 9) Petitioner states that appellate counsel's failure to raise such claims “was partly to blame” for Petitioner's PCR proceedings being denied. (Id.) In Ground Four, Petitioner generally asserts “court errors”; states that he is a foreign national who “had NO idea how to challenge his case”; avers that he did not have help with his case until he recently found an inmate to assist with PCR filings; and generally asserts that he was being “taken advantage of.” (Id. at 10) Petitioner did not include explanation regarding any untimeliness of the Petition; section 16 of the Petition was left blank. (Id. at 11)
In their Limited Answer to the Petition, Respondents assert that Petition was untimely filed without excuse. (Doc. 13 at 8-13) Respondents further assert that Ground Four of the Petition is non-cognizable and that each ground of the Petition is procedurally defaulted without excuse. (Id. at 13-23) Respondents request that a certificate of appealability be denied. (Id. at 23)
To their Limited Answer, Respondents attached a Certificate of Service, stating that the Limited Answer and attached exhibits were mailed to Petitioner's address as reflected on the Court's docket. (Id. at 24; see also Doc. 12) Despite proper service of the Limited Answer, Petitioner did not file a reply in support of his Petition, and the time to do so expired in late December 2023. (Doc. 7 at 4; Doc. 13)
III. TIMELINESS
A threshold issue for the Court is whether these habeas proceedings are time-barred by the applicable 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 (9th Cir. 2022).
A. Start Date of AEDPA's One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas proceedings because he filed his Petition after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). AEDPA provides a one-year statute of limitations period. See 28 U.S.C. § 2244(d)(1).
Under AEDPA, there are four possible starting dates for the beginning of its one-year statute of limitations period:
(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.
28 U.S.C. § 2244(d)(1). The latest of the applicable possible starting dates is the operative start date. Id.
Because the Petition's claims arise from a final judgment and sentences, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless a later start date applies under 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Here, the record does not present any basis for a later start date pursuant to 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Thus, under 28 U.S.C. § 2244(d)(1)(A), AEDPA's one-year statute of limitations period runs from when the judgment and sentence became “final by the conclusion of direct review or the expiration of the time for seeking such review.”
On February 20, 1998, Petitioner was sentenced. (Doc. 13-1 at 46-48) Thereafter, Petitioner commenced a timely direct appeal of his convictions and sentences. (Id. at 5355) On March 2, 1999, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 141-48) On August 27, 1999, the Arizona Supreme Court denied Petitioner's petition for review. (Id. at 173) Following the Arizona Supreme Court's order, Petitioner had ninety days, until November 26, 1999, to file a petition for review in the United States Supreme Court. See Harris v. Carter, 515 F.3d 1051, 1052-53 n.1 (9th Cir. 2008) (judgment becomes final when period for filing petition for certiorari in U.S. Supreme Court expires, i.e., 90 days after state supreme court issues opinion or denies review). The record does not reflect that Petitioner filed a petition for review in the United States Supreme Court. Consequently, Petitioner's convictions became final on November 26, 1999. AEDPA's one-year limitations period began to run on November 27, 1999, unless statutory tolling through Petitioner's PCR proceedings delayed the start date. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998...”).
Ninety days from August 27, 1999, was November 25, 1999. Because November 25, 1999, was Thanksgiving Day, Petitioner had until the following business day, November 26, 1999, to file a petition for review in the United States Supreme Court.
B. Statutory Tolling
AEDPA expressly provides for statutory 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). 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). This includes compliance with filing deadlines. A state post-conviction relief petition not filed within the state's required time limit 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 postconviction 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). Once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
In Melville v. Shinn, 68 F.4th 1154, 1159-61 (9th Cir. 2023), the Ninth Circuit held that a PCR petition ceases to be pending “when the time for [Petitioner] to seek further relief in the state courts expired.” Id. at 1156; see also Id. at 1160-61. The Ninth Circuit concluded that “a PCR application is pending as long as a state avenue for relief remains open, whether or not a petitioner takes advantage of it.” Id. at 1156. Thus, whether the state collateral review process is pending “requires looking to the relevant state's law and procedural rules.” Id. at 1160.
Petitioner filed his first PCR notice on March 9, 1998, during the pendency of his direct appeal. (Doc. 13-1 at 57-60) Through appellate counsel, Petitioner filed a motion to stay Petitioner's PCR proceedings pending the conclusion of Petitioner's direct appeal. (Id. at 62-63) Petitioner's direct appeal concluded in late 1999. See Section III(A), supra. On March 2, 2000, Petitioner's PCR counsel filed a notice of completion, stating that he found no colorable issues to raise in PCR proceedings, and requested an extension of time for Petitioner to file a pro se PCR petition. (Id. at 175-78) Because Petitioner did not file a pro se PCR petition, the state filed a motion to dismiss Petitioner's first PCR proceedings. (Id. at 180-81) On September 19, 2000, the superior court dismissed Petitioner's first PCR proceedings. (Doc. 13-2 at 3-4) Petitioner had 30 days, until October 19, 2000, to file a petition for review in the court of appeals. See former Ariz. R. Crim. P. 32.9(c) (30 days to file petition for review of superior court's PCR decision).
Because Petitioner did not file a petition for review in the court of appeals, Petitioner's first PCR proceedings ceased pending and Petitioner's convictions and sentences became final on October 19, 2000, when no state avenue for relief remained open. During the pendency of Petitioner's PCR proceedings through October 19, 2000, AEDPA's one-year limitations period was tolled pursuant to 28 U.S.C. § 2244(d)(2). Petitioner is entitled to statutory tolling through October 19, 2000, the date on which the last state avenue for relief expired. AEDPA's one-year statute of limitations period commenced to run on October 20, 2000, and the period for Petitioner to file a habeas petition expired on October 19, 2001. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998...”). Petitioner filed these habeas proceedings on July 27, 2023, over twenty-one years after the expiration of AEDPA's limitations period.
Respondents assert that AEDPA's limitations period expired on September 19, 2001. (Doc. 13 at 10-11) However, Respondents do not account for thirty days for Petitioner to file a petition for review of the superior court's dismissal of Petitioner's first PCR proceedings. See Melville, 68 F.4th at 1156 (PCR pending while avenue for relief remains open, whether or not petitioner took advantage of it).
Although Petitioner initiated his second PCR proceedings on December 3, 2003 (Doc. 13-2 at 6-9, 11), the superior court determined that Petitioner's second PCR proceedings were untimely and that Petitioner did not show that the failure to timely file his second PCR notice was without Petitioner's fault. (Id. at 13) Because an untimely PCR notice does not statutorily toll AEDPA's limitations period, Pace, 544 U.S. at 414, Petitioner's untimely second PCR notice did not toll the limitations period. Moreover, because Petitioner's December 2003 second PCR notice was filed after AEDPA's limitations period expired in October 2001, Petitioner's second PCR notice could not restart AEDPA's limitations period. See Jiminez, 276 F.3d at 482; Ferguson, 321 F.3d at 823. Nor could Petitioner's third, fourth, and fifth PCR proceedings restart AEDPA's limitations period. Petitioner initiated his third, fourth, and fifth PCR proceedings after the expiration of AEDPA's limitations period, and the superior court dismissed Petitioner's third, fourth, and fifth PCR proceedings as untimely and successive. (Doc. 13-2 at 27-28, 112-14, 147-50)
Accordingly, Petitioner's first PCR proceedings tolled AEDPA's limitations period through October 19, 2000, when no state avenue for relief remained open. AEDPA's limitations period expired one year later on October 19, 2001. These proceedings, which Petitioner initiated on July 27, 2023, over twenty-one years after the expiration of AEDPA's limitations period, are untimely unless Petitioner demonstrates that equitable tolling and/or the actual innocence gateway apply to render these proceedings timely filed.
C. Equitable Tolling
1. Applicable Law
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. Petitioner bears the burden of establishing 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.”).
The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA's limitations period “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner must show “(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way” to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the first prong, Petitioner “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith, 953 F.3d at 59899 (expressly rejecting the “stop-clock” approach to equitable tolling). The second prong is met “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Id. at 600.
In the 2020 en banc decision in Smith v. Davis, 953 F.3d at 582, the Ninth Circuit resolved a discrepancy between prior decisions and eschewed the “stop-clock” method of applying equitable tolling (that requires diligence only during the course of the extraordinary circumstance, and not thereafter, resulting in a day-for-day pause of the running of the limitations clock). Instead, the Court adopted a rule which conditions equitable tolling on a question of causation. “As we have previously described it, whether an impediment caused by extraordinary circumstances prevented timely filing is a ‘causation question' that requires courts to evaluate a petitioner's diligence in all time periods-before, during, and after the existence of an ‘extraordinary circumstance'-to determine whether the extraordinary circumstance actually did prevent timely filing.” Id. at 595.
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, 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 (5th Cir. 2000).
Further, the Ninth Circuit has “rejected the argument that lack of access to library materials automatically qualifie[s]” for equitable tolling. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Instead, a petitioner must establish that due to circumstances beyond the petitioner's control that the petitioner could not have filed “a basic form habeas petition” within the limitations period, despite exercising reasonable diligence. Waldron-Ramsey, 556 F.3d at 1014 (denying tolling when a petition was 340 days late because, for three years, the petitioner “had access to all of the documents necessary for his Faretta self-representation claim. He could have developed that argument, outlined the other arguments and the facts underlying those arguments on the form habeas petition, and then sought to amend his petition when he got more information.”). Even if a petitioner faces difficulties in accessing legal materials, the petitioner is not entitled to equitable tolling absent credible allegations that the petitioner was denied access to a particular document when needed. Id. Moreover, receipt of an actual case or statute is unnecessary to filing a habeas claim based on the facts and legal theory without citation to case law. Waldron-Ramsey, 556 F.3d at 1014.
The Ninth Circuit has recognized that equitable tolling “may be justified if language barriers actually prevent timely filing.” Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2006). In order to obtain equitable tolling due to a language barrier, the “non-English-speaking petitioner ... must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source.” Id. at 1070; see also Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008) (diligence requirement of equitable tolling imposes on the prisoner a substantial obligation to make all reasonable efforts to obtain assistance to mitigate language difficulties).
“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and quotations omitted). Whether to apply the doctrine of equitable tolling “‘is highly fact-dependent,' and [the petitioner] ‘bears the burden of showing that equitable tolling is appropriate.'” Espinoza Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable in most cases,” and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted).
In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[E]quitable tolling is available 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 the prisoner's untimeliness.”). A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where “it would have technically been possible for a prisoner to file a petition,” so long as the prisoner “would have likely been unable to do so.”).
2. Analysis
Petitioner does not expressly argue in his Petition that he is entitled to equitable tolling. In Ground Four of the Petition, Petitioner asserts that he “is a Foreign National and had NO idea how to challenge his case”; that he had no assistance in his case until another inmate helped Petitioner file a “Post-Conviction Relief package”; and that he was being taken advantage of. (Doc. 1 at 10) Insofar as Petitioner's Ground Four may be construed as arguments supporting equitable tolling, Petitioner has not shown that any extraordinary circumstance prevented him from timely filing a habeas petition and Petitioner has not shown that Petitioner has been diligently pursuing his rights. Nor does the record reflect such.
Petitioner's claimed status as a foreign national, with no knowledge of how to proceed in his case, does not warrant equitable tolling. A petitioner's “lack of legal sophistication” or ignorance of the law is not an extraordinary circumstance. Rasberry, 448 F.3d at 1154; Ballesteros, 2007 WL 666927, at *5. Moreover, even if Petitioner had a language barrier as a foreign national, Petitioner has not shown that he was unable to obtain assistance to mitigate any language difficulties. The record demonstrates that Petitioner was capable of making numerous filings in English in state court during the two decades after his conviction and before filing these habeas proceedings, including Petitioner's 2003 second, 2008 third, 2020 fourth, and 2021 fifth PCR proceedings. Petitioner has not demonstrated that he did not or could not understand how or when to file a timely habeas petition, nor that Petitioner was unable to file a timely habeas petition with or without assistance.
Similarly, “proceeding pro se is not a ‘rare and exceptional' circumstance[,]” Felder, 204 F.3d at 171, nor is a lack of representation. Ballesteros, 2007 WL 666927, at *5. Although Petitioner argues that he had no assistance with his case until another inmate made Petitioner's PCR filings, Petitioner does not specify any steps taken by him to pursue his habeas claims prior to obtaining assistance. Further, Petitioner generally asserts that “[h]e was being taken advantage of[,]” but Petitioner does not explain who took advantage of him, nor does Petitioner explain how someone took advantage of him such that he was unable to file a timely habeas petition. Petitioner has not demonstrated an extraordinary circumstance that prohibited him from filing a timely habeas petition.
Even if Petitioner could demonstrate that an extraordinary circumstance prevented him from timely filing his habeas petition, Petitioner has not established that he has been diligently pursuing his rights. Respondents argue that Petitioner's “purported temporary loss of his legal paperwork from early 2000 until April 2003” does not warrant equitable tolling of AEDPA's statute of limitations. (Doc. 13 at 13) Petitioner failed to file a PCR petition in his first PCR proceedings in 2000. (See Doc. 13-2 at 3-4) After purportedly recovering his lost legal paperwork in April 2003, Petitioner waited to file a second PCR notice until December 2003 (Id. at 6-9, 11), and the superior court found that Petitioner had not demonstrated that he was not at fault for the untimely filing of the second PCR notice (Id. at 13). Following the dismissal of his second PCR proceedings, Petitioner did not file a habeas petition, instead initiating three additional PCR proceedings in December 2008 (Id. at 15-25), in May 2020 (Id. at 30-110), and in November 2021 (Id. at 120-45). Petitioner does not explain why he could not file a habeas petition promptly following the alleged return of his legal paperwork in April 2003, nor does he explain why he could not file a timely habeas petition following the dismissal of each of his five state court PCR proceedings.
Although Petitioner asserted in his second PCR notice that he lacked access to his legal paperwork from early 2000 until April 2003 (Doc. 13-2 at 8), Petitioner does not argue such in his habeas Petition.
Petitioner has not met his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented Petitioner from filing a timely petition for habeas corpus. Accordingly, equitable tolling is not appropriate on this record and does not apply here to render these proceedings timely.
D. Actual Innocence
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. 298, 327 (1995), 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.”).
To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). 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.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). “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.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
Petitioner does not argue in his Petition that he is actually innocent. Attached to the Petition are: the superior court's January 25, 2022, order dismissing Petitioner's fifth PCR proceedings (Doc. 1 at 13-16); Petitioner's November 2021 PCR petition filed in his fifth PCR proceedings (Id. at 17-34); the Arizona Court of Appeals' December 15, 2022, memorandum decision denying relief in Petitioner's fifth PCR proceedings (Id. at 36-37); Petitioner's March 2022 petition for review in the court of appeals in his fifth PCR proceedings (Id. at 38-43); the Arizona Supreme Court's June 2, 2023, order denying Petitioner's petition for review in his fifth PCR proceedings (Id. at 45); Petitioner's January 20, 2023, petition for review in the Arizona Supreme Court in his fifth PCR proceedings (Id. at 46-51); and a transcript excerpt from Petitioner's February 1998 sentencing (Id. at 53-58). Petitioner's attachments are not new evidence of factual innocence. Petitioner does not argue that his attachments are evidence that more likely than not would have prevented a jury from convicting him of the offenses underlying the Petition, nor is such apparent from review of Petitioner's attachments. Further, the record otherwise does not establish Petitioner's actual innocence to excuse the untimeliness of the Petition.
Petitioner does not argue actual innocence and does not present new reliable evidence that would more likely than not prevent a jury from convicting him. Nor does the record otherwise contain such evidence. Thus, the actual innocence gateway does not apply to excuse Petitioner's over twenty-one-year late filing of these proceedings.
E. These Proceedings Are Untimely Under AEDPA
As explained above, these habeas proceedings were untimely filed and neither equitable tolling nor the actual innocence gateway render this action timely filed. These untimely proceedings should be dismissed with prejudice and terminated.
IV. CONCLUSION
For the reasons set forth above, the July 27, 2023, Petition was untimely filed and neither equitable tolling nor the actual innocence gateway render this action timely filed. Because the Petition was untimely filed, the Court does not reach Respondents' arguments regarding procedural default and non-cognizability. Due to untimeliness, it is recommended that the Petition be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
Assuming the recommendations herein are followed in the District Judge's judgment, it is recommended that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253.
Accordingly, IT IS THEREFORE RECOMMENDED that Petitioner Francisco V. Chala's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists 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) 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 (9th Cir. 2003). Failure to file timely objections to any factual determination 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.