Opinion
CV-20-8114-PCT-DGC (DMF)
03-16-2021
Robin Joy Fahr, Petitioner, v. State of Arizona, et al., Respondents.
HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
On May 11, 2020, Petitioner Robin Joy Fahr (“Petitioner”), who is confined in the Arizona State Prison Complex in Goodyear, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) (“Petition”). In her Petition, Petitioner named the State of Arizona, the County of Yavapai, and the Arizona Department of Corrections as Respondents (Id.). Because a petitioner for habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of her as the respondent to the petition, see Rule 2(a), Rules Governing Section 2254 Cases; Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997), the Court substituted Arizona Department of Corrections Director David Shinn as Respondent (Doc. 5 at 2). Further, the Court required an answer to the Petition, allowing Respondent to “file an answer that (a) is limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative defenses as to some claims and discusses the merits of others; or (c) discusses the merits of all claims” (Doc. 5 at 5).
The Petition was docketed by the Clerk of Court on May 15, 2020 (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on May 11, 2020 (Doc. 1-4 at 1). Pursuant to the prison mailbox rule, the undersigned has used May 11, 2020, as the filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case CV-20-8114-PCT-DGC (DMF).
After four extensions of time to do so (Docs. 16, 17, 18, 19, 21, 22, 23, 24), Respondents timely filed a Limited Answer (Doc. 25). Petitioner filed a timely reply (Doc. 31). Further, around the time of her reply, Petition filed a motion for summary judgment and a declaration in support (Docs. 28, 29). Respondents filed their opposition to the summary judgment motion (Doc. 33), and Petitioner replied (Doc. 34).
This matter is on referral to the undersigned United States Magistrate Judge for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 5 at 6). For the reasons set forth below, it is recommended that the Court dismiss the Petition (Doc. 1) with prejudice, deny the motion for summary judgment, and deny a certificate of appealability.
I. PROCEDURAL HISTORY
A. Charges, Guilty Pleas, and Sentences
On October 19, 2011, the following charges were brought against Petitioner by indictment in Yavapai County Superior Court case number CR201180486: one count of fraudulent schemes or artifices in Count I; one count of conspiracy to commit fraudulent schemes or artifices in Count II; four counts of forgery in Counts III, VI, IX, and XII; five counts of taking identity of another person or entity in Counts IV, VII, X, XIII, and XV; four counts of theft in Counts V, VIII, XI, and XIV; and one count of attempted theft in Count XVI (Doc. 25-1 at 3-7). On February 24, 2012, additional charges were brought against Petitioner by indictment in Yavapai County Superior Court case number CR201280089: two counts of forgery in Counts I and II and one count of theft in Count III (Id. at 9-10).
Petitioner was appointed the same counsel for both cases (Id. at 12, 14). Petitioner pleaded not guilty to the charges against her in both cases (Id. at 16, 18). On January 15, 2014, Petitioner moved for severance of the two cases (Id. at 20-21). The state opposed the severance and moved for the cases be joined for trial (Id. at 24-26). The superior court denied the motion to sever and granted the motion for trial joinder (Id. at 28).
Petitioner, represented by counsel, and the state entered into a plea agreement regarding both cases, case number CR201180486 and case number CR201280089 (Id. at 34-39). On May 8, 2014, at the start of the change of plea hearing, Petitioner directly, not through her counsel who was present, requested that the court appoint a guardian ad-litem for her because Petitioner averred that she was “severely mentally ill” and had “learning disabilities since kindergarten (Id. at 42-44). The court denied the request (Id. at 44), and Petitioner decided to proceed with the change of plea hearing pursuant to the plea agreement (Id. at 44-46). After a thorough colloquy, Petitioner pleaded guilty in case number CR201180486 to fraudulent schemes and artifices (Count I), taking identity of another person or entity (Count IV), and forgery (Count XII), and in case number CR201280089 to two counts of forgery (Counts I and II) (Id. at 30, 32, 34-39, 46-82). During the colloquy with Petitioner, at least five times, the court and Petitioner referenced a prison sentence under the plea agreement of not less than ten and a half (10.5) years (Id. at 51, 57, 58, 63).
The superior court found that Petitioner's guilty pleas were knowing, voluntary, and intelligent; accepted Petitioner's guilty pleas; and ordered a mental health evaluation pursuant to Arizona Rule of Criminal Procedure 26.5 on the request of Petitioner's counsel (Id. at 30, 32, 73, 41-82). The Arizona Rule of Criminal Procedure 26.5 mental health evaluation was requested by Petitioner's counsel for “the record's clarification as much as anything else” (Id. at 73). . . .
“At any time before sentence is pronounced, the court may order the defendant to undergo mental health examination or diagnostic evaluation.” Arizona Rule of Criminal Procedure 26.5.
A psychiatrist performed the court ordered Rule 26.5 mental health evaluation (Id. at 84-95). Among other matters, the report opined that Petitioner was competent to enter guilty pleas and assist in sentencing (Id. at 86, 89, 94, 95). While the psychiatrist opined that Petitioner had psychiatric disorders, the psychiatrist wrote that “[d]espite [Petitioner's] limited formal education, she overall impressed me, based on her long letter and my interview with her, as being able to analyze and put together thoughts as well as someone in the low average range or even average range of intellectual ability” (Id. at 86). The psychiatrist concluded:
Based on her presentation and her responses to questions, which indicated a good deal of understanding of legal matters as well as her IQ testing, it appeared that she may well function at the low level of low average intellectual ability or in the 80-90 IQ range, and possibly even somewhat higher, but may have some learning disorders. Her judgment appeared to be grossly intact and she did relate to me in an appropriate manner.(Id. at 95). Regarding Petitioner's understanding of the plea agreement, the psychiatrist explained:
[Petitioner] understood she was facing 19 counts and that according to the plea agreement she would end up pleading guilty to the worst counts, and that they might reduce the charge and sentence as a result, but that likely she would still get at least 10-1/2 years. She also knew that if she went to trial [and] lost that she could be sentenced to 153 years.(Id. at 94) (emphasis added). A presentence report was also prepared, for which Petitioner prepared a written statement including comments to the judge regarding sentencing (Id. at 97-106).
On June 23, 2014, consistent with the plea agreement, the superior court sentenced Petitioner in case number CR201180486 to concurrent imprisonment sentences totaling ten and a half (10.5) years and sentenced Petitioner in case number CR201280089 to concurrent imprisonment sentences totaling four and a half (4.5) years to be served consecutive to the imprisonment sentences imposed in case number CR201180486, resulting in a total combined prison sentence of fifteen (15) years for the two cases (Id. at 108-112, 114-136). Before imposing sentence and in open court with Petitioner present, the court specifically referenced having reviewed the mental health evaluation and the presentence report that was prepared in the case (Id. at 118). In both cases, consistent with the plea agreement, the superior court dismissed the counts to which Petitioner had not pleaded guilty (Id. at 126). At sentencing in open court, the trial court advised Petitioner of her right to petition the court for post-conviction relief, of Petitioner's right to counsel for post-conviction relief proceedings, and of the requirement that Petitioner file a notice of post-conviction relief (“PCR notice”) within ninety days of sentencing (Id. at 126-127).
B. Post-Conviction Relief (“PCR”) Proceedings
1. First PCR proceedings
On August 18, 2014, Petitioner filed a timely pro per PCR notice in both cases, in which she raised claimed ineffective assistance of counsel “at every critical stage of the proceedings, ” that her guilty plea had been “unlawfully induced, ” and that the superior court had improperly considered her prior convictions at sentencing (Doc. 25-1 at 138-145). On September 4, 2014, the superior court acknowledged receipt of Petitioner's notice and appointed new counsel to represent Petitioner in her post-conviction proceeding (Id. at 147-148).
“A court order is entered when the clerk files it.” Ariz. R. Crim. P. 1.3.
On April 9, 2015, Petitioner, through counsel, filed a motion for change of judge because the sentencing judge could be called as a witness in relation to any evidentiary hearing resulting from Petitioner's PCR petition (Id. at 150-154). The PCR proceedings were reassigned to a different judge (Id. at 156, 158).
Also on April 9, 2015, Petitioner, through counsel, filed her first PCR petition (Doc. 25-2 at 3-48), which asserted as grounds for relief:
1) [Petitioner's] guilty pleas were not intelligent, voluntary and knowing in violation of the Sixth and Fourteenth Amendments but were based on promises from outside the record that the state would recommend and the court had agreed that she would be sentenced to concurrent prison terms totaling no more than 10.5 years in prison. At a minimum she is entitled to resentencing where the state and court honor their promises to a sentence no greater than 10.5 years.
2) Petitioner was at all relevant times in custody on the instant offenses after being served with Yavapai County's warrant and detainer while in custody at the Pima County detention center on February 7, 2012 and therefore entitled to an additional 345 days credit under ARS § 13-712(B).
3) Trial counsel was ineffective in violation of the Sixth and Fourteenth Amendments because he failed to marshal and present substantial additional mitigating evidence and also present evidence proving that his client was entitled to concurrent prison terms and additional presentence incarceration credit.
4) Petitioner is 100% disabled and unable to work in prison and accordingly the court should reduce the percentage of monies taken from her limited ADOC prison account to the absolute minimum of 20% under ARS § 31-230(C).(Id. at 3-4). The state responded in opposition (Id. at 50-70). Petitioner's counsel replied on Petitioner's behalf (Id. at 72-78).
After reviewing the briefing on the PCR petition, including all exhibits, the superior court held an “informal hearing” on the PCR petition (Id. at 80, 82-83). At the August 31, 2015, hearing, the superior court denied a motion by Petitioner to disqualify the assigned deputy county attorney (Id. at 80, 82). In a September 4, 2015, order, the superior court found that Petitioner had not stated a colorable claim related to her ADOC spendable account because “Rule 32 provides a ground for relief from a sentence only when the ‘sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law”' (Id. at 82-83). The superior court found that the forty five percent ordered at sentencing conformed to applicable law, denying ground 4 of the PCR petition (Id. at 83). The superior court further found that Petitioner was given full credit for time served, denying ground 2 of the PCR petition (Id.). The superior court denied ground 3 of the PCR petition for lack of record support and finding that “the record fails to support [Petitioner's] allegations” because counsel “requested the 26.5 evaluation, which included a summary of [Petitioner's] mental health and medical history along with her current issues” (Id.). In addition, the superior court found that the “additional allegations in the [PCR petition] that promises were made by the [s]tate or the [c]ourt to either trial counsel or [Petitioner]” were not supported and failed to raise a colorable claim (Id.).
As to ground 1 of the PCR petition, the court found that Petitioner had presented a colorable claim that she had not entered into her plea agreement knowingly, intelligently, or voluntarily based on her account of the representations trial counsel had made to her outside of the plea process and set an evidentiary hearing to address the claim “that the trial attorney may have given information to [Petitioner] outside of the plea process that affected her decision to enter into the plea agreement” (Id.). At the October 12, 2015, evidentiary hearing, the court explained to Petitioner “the possible outcome in the matter even if she were to prevail” on her PCR petition (Id. at 85-86). After Petitioner's off-the-record discussion with her PCR counsel, her PCR counsel advised the superior court judge that Petitioner did “not wish to go forward” with her claim (Id. at 85). The superior court then vacated the hearing, confirmed its previous rulings, and confirmed Petitioner's prior sentences (Id. at 85-86).
On November 13, 2015, Petitioner's counsel petitioned for review of the superior court's September 4, 2015, ruling of the summary denial of PCR petition grounds 2, 3, and 4 with the Arizona Court of Appeals (Id. at 88-89). In the petition for review filed by Petitioner's counsel, Petitioner only argued PCR petition grounds 2 and 3, that she had not received full credit for time served and that counsel had been ineffective regarding mitigating evidence at sentencing (Id. at 91-116). In a memorandum decision issued on May 2, 2017, the appeals court granted review and denied relief (Id. at 118-123). Petitioner did not seek any further review of that decision (Id. at 118).
2. Second PCR proceedings
On June 14, 2016, while the petition for review in Petitioner's first PCR proceedings was pending in the Arizona Court of Appeals, Petitioner filed a second PCR notice in both cases (Id. at 125-136). In the pro per notice, Petitioner asserted that she had only just received a copy of the presentence report issued by the Adult Probation Department, claiming that the report amounted to “new evidence, ” and that she “could not understand why [she] got 15 years after [she reviewed] the report.” (Id.). Petitioner critiqued the details of the presentence report and asserted that without the errors in the presentence report, her sentence would have been different (Id.).
On July 6, 2016, the superior court summarily dismissed Petitioner's second PCR notice, finding that “the reasons offered by [Petitioner]” in her second notice “as to why she might now eligible for relief are precluded pursuant to” Arizona Rule of Criminal Procedure 32.2(a) (Id. at 138). Respondents represent that Petitioner did not seek review of the superior court's dismissal (Doc. 25 at 7), and Petitioner does not assert otherwise (Docs. 1, 31).
3. Third PCR proceedings
On September 8, 2016, Petitioner signed her third PCR notice for both cases, which was apparently prepared with assistance from the same PCR counsel that had represented her in her first PCR proceedings (Id. at 140-150). The third PCR notice asserted ineffective assistance of counsel “based on the fact that [Petitioner] was not provided a copy of her presentence report and learned of the factual errors in the narrative and criminal history sections of the report” after her first PCR petition was denied (Id. at 150). Petitioner again claimed that the alleged errors in the presentence report amounted to “newly discovered facts that would have changed her sentence if corrected on June 23, 2014” (Id. at 142). A handwritten affidavit of Petitioner was attached to the PCR notice which described in the Petitioner's own words what had occurred and the claimed inaccuracies in the presentence report (Id. at 143-150).
On October 14, 2016, Petitioner's counsel filed a PCR petition asserting that Petitioner was deprived of her Sixth Amendment right to effective assistance of counsel due to her counsel's failure to provide her with a copy of presentence report prior to sentencing and that the alleged errors in the report deprived her of her right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution (Id. at 152-158).
On November 21, 2016, the superior court summarily dismissed the third PCR petition, finding “that the reasons offered by [Petitioner] as to why she might now be eligible for relief are precluded pursuant to” Arizona Rule of Criminal Procedure 32.2(a), and “nothing ‘new' has been presented” (Id. at 160). Respondents represent that Petitioner did not seek review of the superior court's dismissal (Doc. 25 at 7), and Petitioner does not assert otherwise (Docs. 1, 31). On January 3, 2017, new counsel for Petitioner moved to extend the time for filing a PCR petition (Id. at 162), and on January 18, 2017, the superior court declared the motion “moot, ” noting that court had already dismissed Petitioner's third PCR petition (Doc. 25-3 at 3).
4. Fourth PCR proceedings
On October 30, 2019, Petitioner initiated her fourth PCR proceeding by filing a pro per PCR petition in one of her two cases, case number CR201280089 (Id. at 5-18). In the PCR petition, Petitioner primarily moved to modify her sentence in accordance Arizona Rule of Criminal Procedure 24.3 and also claimed her sentence was excessive because she did not receive the full time-served credit to which she believed she was entitled (Id.). The state responded in opposition (Id. at 20-24).
On December 18, 2019, the superior court dismissed the petition for failure to comply with the Arizona Rules of Criminal Procedure and because the raised claims were precluded, adopting the reasoning provided in the state's response (Id. at 26). Following the superior court's order, the superior court received Petitioner's reply to the state's response. (Id. at 28-52). The superior court acknowledged receipt of the reply and confirmed its previous order dismissing the PCR petition (Id. at 54). Respondents represent that Petitioner did not seek review of the superior court's dismissal (Doc. 25 at 8), and Petitioner does not assert otherwise (Docs. 1, 31).
5. Fifth PCR proceedings
On February 7, 2020, Petitioner initiated her fifth PCR proceeding by filing a pro per PCR notice (Doc. 25-3 at 56-72). In the PCR notice, Petitioner claimed that she “just noticed a new issue” in relation to her plea: the “plea states [she] gave [a] factual bas[is] for the change of plea, [she] did not give factual bas[is] her self [sic]” (Id. at 57-58). In addition, Petitioner once again raised her claim that the presentence report contained incorrect information that caused her to receive a harsher sentence (Id. at 57).
A declaration by Petitioner was attached to the PCR notice, wherein Petitioner raised the same claims she had raised in her first PCR proceedings: her plea was not entered into knowingly, intelligently, or voluntarily; trial counsel was ineffective; and she did not receive full credit for time served (Id. at 67-69). Also attached to the PCR notice was a “motion to refile 24.3 modification to probation and or suspend to probation, ” in which Petitioner again requested the superior court modify her sentence in CR201280089 (Id. at 60-61).
On February 14, 2020, the superior court summarily dismissed Petitioner' fifth PCR proceedings (Id. at 74). The superior court determined “that the reasons offered by [Petitioner] as to why she might now be eligible for relief are precluded pursuant to” Arizona Rule of Criminal Procedure 32.2(a) (Id.). The superior court also noted that “nothing ‘new' has been presented” (Id.).
Petitioner subsequently filed two motions for reconsideration: a motion to reconsider the dismissal of her fifth PCR proceedings and a motion to reconsider the dismissal of her motion to modify her sentence and for appointment of counsel (Id. at 76-77, 79-88). The superior court denied the motions on April 3, 2020, and April 13, 2020, respectively (Id. at 90, 92). Respondents represent that Petitioner did not seek review of the superior court's dismissal (Doc. 25 at 9), and Petitioner does not assert otherwise (Docs. 1, 31).
II. THESE HABEAS PROCEEDINGS
On May 11, 2020, Petitioner filed these proceedings (Doc. 1). In Petition Ground One, Petitioner alleges that her plea was not voluntary, knowing, or intelligent, and therefore violated her Sixth and Fourteenth Amendment rights (Doc. 1 at 5). Petitioner claims she pleaded guilty “based on promises from outside the record that the [s]tate would recommend and the court had agreed that she would be sentenced to concurrent prison terms totaling no more than 10.5 years in prison” (Doc. 1-1 at 5). Petitioner also alleges her counsel was ineffective in the plea negotiations (Id. at 7).
In Ground Two, Petitioner contends that she never agreed to consecutive terms, and that she was not told by her attorney “anything but concurrent terms” would be imposed, for “10 1/2 total” (Doc. 1 at 7). Petitioner also asserts her attorney never addressed whether the sentences should be concurrent (Doc. 1-1 at 10-11).
In Ground Three, Petitioner alleges there was inaccurate information in the presentence report, her attorney did not provide her with a copy of the presentence report, and the information was “used against [her] for aggravating circumstances” (Doc. 1 at 8). She claims she only received a copy of the presentence report after her petition for post-conviction relief was filed (Id.). She also alleges she received ineffective assistance of counsel at sentencing (Doc. 1-1 at 8-10).
In Ground Four, Petitioner appears to challenge the superior court's December 2019, denial of her request to modify her sentence in CR201280089 “to IPS or probation” due to her medical conditions, her inability to work, and the Arizona Department of Corrections “no longer provid[ing] indigent supplies of any kind” (Doc. 1 at 10). She also raises issues regarding the trial court's rulings regarding presentence credit and restitution (Doc. 1-1 at 7, 12).
In the Petition, Petitioner also asserts that she is “not very smart” and “can barley [sic] read, write, nor comprehend what [she] read[s]” (Doc. 1 at 5). In the over twenty-five page handwritten Petition (see Docs. 1, 1-1), Petitioner also states that she has “low IQ 70-79 Borderline Retardation” (Doc. 1 at 5). Further, regarding filing the Petition more than a year after her conviction became final, Petitioner avers that until April 2020, she has “been going back in forth with” Yavapai County, the superior court judge, and the state “[t]hink[ing] they would due [sic] the right thing” (Id. at 13). Petitioner averred that in March 2020, when the state said she “has other venues”, Petitioner asked the librarian to see a paralegal and waited for over sixty days to find out that there is no access to a paralegal because of COVID-19 (Id.). Petitioner reiterated that she “is diagnosed with Borderline Retardation w/IQ 70, SMI can barley [sic] read or write and depend[s] on others (attorneys) to help [her] understand what is going on” (Id. at 13-14).
In their Answer to the Petition, Respondents argue that the Petition should be dismissed with prejudice because these proceedings were untimely filed, that all the claims raised in the Petition are procedurally defaulted without excuse except that trial counsel ineffectively failed to argue that all Petitioner's sentences in the two cases should run concurrent to each other, that Petitioner is entitled to additional presentence incarceration credit, and that Petitioner's state law based claims are not cognizable in habeas proceedings (Doc. 25 at 2, 10-19, 19-28, 26, 28-30).
In her reply in support of the Petition (Doc 31), Petitioner argues in support of her Petition grounds, cites numerous legal cases, and asserts that she has “literacy issues along with organizational problems” which constitute extraordinary circumstances warranting equitable tolling (Id. at 1, 1-12). Petitioner also argues that equitable tolling should apply because she has been pursuing her rights diligently demonstrated by her having “showed court constant filings” even when an appointed attorney “did nothing” (Id. at 8). Petitioner argues that she has been consistently been fighting for vindication of her rights (Id. at 8-9). Petitioner avers that “extraordinary circumstances stood in [her] way” (Id. at 9). Petitioner writes that she kept “writing Attorney Goldberg w/no word for a long time until one day a letter came back” and “it was shortly after that” Petitioner filed her federal proceedings “assuming maybe he's not alive anymore” (Id.). Petitioner avers she had help from other inmates in filling out her Petition and used the law in the state filings by Attorney Goldberg as her legal citations (Id.). Petitioner avers that she did not know about the time deadline for filing a habeas petition (Id.). Further, Petitioner opposes Respondents' arguments about procedural default (Id. at 10).
In Petitioner's declaration (Doc. 29) filed at the same time as her reply, her motion for summary judgment (Doc. 28), and her renewed motion to appoint counsel (Doc. 30), Petitioner writes that she “is not an attorney and is having a hard time understand[ing] what the state saying with there [sic] legal mumbo jumbo” (Doc. 29 at 4). In her renewed motion to appoint counsel (Doc. 30), which the Court denied (Doc. 32; see also Docs. 11, 13), Petitioner averred that the motion is made based on her mental impairment (Doc. 30). Specifically, Petitioner asserts that she doesn't “really understand what's going on or what the state's trying to pull”, that she “can barely read, write”, that she needs help understanding, and that her “disability” is in the court records (Id. at 2).
In Petitioner's motion for summary judgment (Doc. 28), filed without leave of court, Petitioner argues her Petition grounds and goes beyond her Petition grounds, stating that she believes she should have been charged with a class 5 instead of a class 2 felony (Id. at 3). Petitioner requests “a hearing with attorney for her” as well as a “judgment for” a sentence of “time served” as well as other relief (Id.). Respondents oppose Petitioner's motion for summary judgment as outside of habeas procedures (Doc. 33). In reply, Petitioner argues the merits of her Petition grounds (Doc. 34).
III. TIMELINESS
A. AEDPA's One Year Limitations Period
A threshold issue for the Court is whether a 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 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas petition because she filed it 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)).
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.
Here, the Petition's grounds arise from a final judgment and sentence, and the record does not present circumstances for a later start date based on subsections (B), (C), or (D). Thus, AEDPA's one-year statute of limitations start date is determined by 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.” 28 U.S.C. § 2244(d)(1)(A).
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may seek review only by collaterally attacking the conviction(s) by way of post-conviction proceedings under Arizona Rule of Criminal Procedure 32 (now Rule 33). See Ariz. R. Crim. P. 17.2(e); A.R.S. § 13-4033(B). At the time of Petitioner's sentencing, Rule 32.4(a)(2)(C) required an of-right notice of post-conviction relief to be filed within 90 days after entry of judgment and sentence. The conviction becomes “final” for purposes of Section 2244(d)(1)(A) when the Rule 32 of right proceeding concludes or the time for filing such expires. Summers v. Schriro, 481 F.3d 710, 711, 716-717 (9th Cir. 2007); see also A.R.S. § 13-4033(B). When an Arizona petitioner's PCR proceeding is of-right, AEDPA's statute of limitations does not begin to run until the conclusion of review or the expiration of the time for seeking such review. Summers, 481 F.3d at 711, 716-17.
AEDPA expressly provides for tolling of the limitations period when a “properly filed application for [s]tate post-conviction or other collateral relief 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 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). Once the statute of limitations has run, subsequent collateral review petitions do not “restart” AEDPA's one year limitations period clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Here, Petitioner was sentenced on June 23, 2014, but the start of AEDPA's one-year statute of limitations was statutorily tolled through the conclusion of her first PCR proceedings. Because Petitioner did not file a petition for review in the Arizona Supreme Court regarding her first PCR proceedings, the last day of the statutory tolling from Petitioner's first PCR proceedings was June 1, 2017, thirty days after the Arizona Court of Appeals issued its May 2, 2017, memorandum decision granting review and denying relief. None of Petitioner's subsequent PCR proceedings qualify for statutory tolling because the state courts correctly found that Petitioner's second, third, fourth, and fifth PCR proceedings were not properly filed under state procedural requirements. See former Ariz. R. Crim. P.32.1(a), (c), 32.4(a)(2)(A); current Ariz. R. Crim. P. 33.1(a)-(h), 33.2(b)(1), 33.4(b)(3)(A), 33.4(b)(3)(B). Thus, AEDPA's one-year statute of limitations began running on June 2, 2017, and expired on June 1, 2018. 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 ... .”).
Further, even if Petitioner's second, third, fourth, and fifth PCR proceedings had been properly filed, AEDPA's one year statute of limitations would still have begun on June 2, 2017, and would still have expired on June 1, 2018, because Petitioner' second and third PCR proceedings were concluded before June 1, 2017 and Petitioner's fourth and fifth PCR proceedings were initiated after the statute of limitations period expired on June 1, 2018.
Accordingly, Petitioner was required to file a federal habeas petition on or before June 1, 2018. Petitioner did not file the Petition until May 11, 2020. Based on the entirety of the record before the Court, the Petition was untimely filed by almost two years. Therefore, the Court will address whether equitable tolling or the actual innocence gateway applies to render Petition, and these proceedings thereon, timely filed.
B. Equitable Tolling
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 (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 circumstances 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, a 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 598-99 (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.
“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).
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.”).
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 Alexander v. Schriro, 312 Fed.Appx. 972, 976 (9th Cir. 2009) (a petitioner's “incorrect interpretation of the statute” and miscalculation of the limitations period “does not amount to an ‘extraordinary circumstance' warranting equitable tolling”). A prisoner's “proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); see also 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). To qualify for equitable tolling, “an external force must cause the untimeliness, rather than ... merely oversight, miscalculation or negligence on the petitioner's part.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (citations, quotations and alterations omitted).
Further, while the egregious misconduct of counsel may warrant equitable tolling, see Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (statute of limitations equitably tolled where attorney was retained to prepare and file a habeas petition for incarcerated inmate, failed to do so, and then disregarded requests to return files pertaining to the case until well after the petition was due), the Ninth Circuit has concluded that equitable tolling is not appropriate based on the ordinary negligence of counsel, see Frye v. Hickman, 273 F.3d 1144 (9th Cir. 2001). See also Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010) (finding that equitable tolling was not warranted where the petitioner's counsel failed to perfect a timely appeal, failed to inform the petitioner of the deadline for filing a state habeas petition, and failed to provide the petitioner with his case files in a timely manner, explaining that attorney negligence did not amount to “extraordinary circumstances” and did not prevent the petitioner from timely filing a federal habeas petition).
In addition, “[l]ow literacy levels, lack of legal knowledge, and need for some assistance to prepare a habeas petition are not extraordinary circumstances to warrant equitable tolling of an untimely habeas petition.” Baker v. Cal. Dep't of Corr., 484 Fed.Appx. 130, 131 (9th Cir. 2012). In the Ninth Circuit, there is a two-part test to determine when a habeas petitioner is eligible for equitable tolling based upon a mental impairment:
(1) First, a petitioner must show his mental impairment was an “extraordinary circumstance” beyond his control, by demonstrating the impairment was so severe that either
(a) petitioner was unable rationally or factually to personally understand the need to timely file, or
(b) petitioner's mental state rendered him unable personally to prepare a habeas petition and effectuate its filing.
(2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance.Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) (emphasis in original, internal citations and footnote omitted). This standard “reiterates the stringency of the overall equitable tolling test” and “the mental impairment must be so debilitating that it is the but-for cause of the delay, and even in cases of debilitating impairment the petitioner must still demonstrate diligence” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014).
Here, Petitioner has not provided details of any specific action she took in pursuing her habeas claim before the late filing of the Petition. The Ninth Circuit recently stated that “for a litigant to demonstrate” that “[s]he has been pursuing his rights diligently” sufficient to satisfy “the first element required for equitable tolling, [s]he 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 v. Davis, 953 F.3d at 598-99. Here, the record does not reflect any efforts made by Petitioner to timely file a federal habeas petition, let alone efforts constituting reasonable diligence. Rather, Petitioner states that she made a decision to simply pursue any state court remedies through April 2020, thinking that the superior court would do what Petitioner believes is the “right thing” (Doc. 1 at 13). Indeed, Petitioner accomplished multiple pro per filings in the state courts during her five PCR proceedings both before and after AEDPA's one year limitations period ended. Four of Petitioner's five PCR proceedings were initiated by Petitioner pro per. Petitioner's actions regarding her state court remedies inform regarding Petitioner's ability to file a federal habeas proceedings and her lack of diligence in doing so.
Further, Petitioner's allegations regarding her mental condition are insufficient to justify equitably tolling the limitations period. Evaluating the record before the Court, the Court cannot find at any point during the limitations period that Petitioner's mental impairment was so severe that she “was unable rationally or factually to personally understand the need to timely file” or that her “mental state rendered him unable personally to prepare a habeas petition and effectuate its filing.” Bills, 628 F.3d at 1100. Petitioner makes no argument that her mental condition was different in kind or degree compared to when she filed the instant federal habeas petition, and the record before this Court does not demonstrate a material difference in Petitioner's mental condition during the limitations period compared to the time she filed the instant federal habeas petition.
While Petitioner claims she is incapable of expressing herself in writing and is incapable of understanding what she reads, Petitioner's handwritten court documents are in the same handwriting, presumably hers, throughout her state court proceedings (see, e.g., Doc. 25-2 at 47-48, 143-150; Doc. 25-3 at 3-17), and continuing through these habeas proceedings. Respondents accurately point out that in four of her five PCR proceedings, Petitioner “was able to read and complete the required forms accurately (specifically noting the untimeliness of those proceedings), she was able to set forth cogent arguments in relation to her claims, and she was able to identify the correct rule of procedure for sentence modification” (Doc. 25 at 18). Further, in these proceedings, Petitioner not only set forth specific grounds in her Petition, she demonstrated that she had sufficient understanding of Respondents' defenses such that she addressed them in her reply, including with legal citations in support.
Upon review of Petitioner's state court and federal habeas filings from 2015 to present, the Court agrees with the description of Petitioner's abilities by the psychiatrist that examined Petitioner before her 2014 sentencing: “Despite [Petitioner's] limited formal education, she overall impressed me, based on her long letter and my interview with her, as being able to analyze and put together thoughts as well as someone in the low average range or even average range of intellectual ability” (Doc. 25-1 at 86). The record does not demonstrate that Petitioner had a mental impairment to a degree of severity that she was unable to file a timely habeas petition. See Bills, 628 F.3d at 1099-1100. Nor does Petitioner's pro per status, lack of legal training, or unfamiliarity with the law constitute any extraordinary circumstance warranting equitable tolling. See Rasberry, 448 F.3d at 1154.
Also in support of her request for the Court to consider her Petition despite its untimeliness, Petitioner avers generally that her letters to her previous state PCR counsel, David Goldberg, went unanswered for a time. Yet, Petitioner has not connected this to any basis for equitable tolling. Petitioner has not shown that attorney Goldberg was retained for advice or representation regarding federal habeas proceedings. Nor has Petitioner alleged that her PCR counsel Goldberg committed any misconduct, let alone shown that attorney Goldberg's conduct transcended “garden variety” negligence. See Frye v. Hickman, 273 F.3d at 1146 (“We conclude that the miscalculation of the limitations period by Frye's counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling.”); Randle v. Crawford, 604 F.3d at 1058 (“To the extent that his counsel's negligence in miscalculating the filing deadlines in his state proceedings resulted in Randle also missing the federal deadline, we have held that an attorney's negligence in calculating the limitations period for a habeas petition does not constitute an ‘extraordinary circumstance' warranting equitable tolling.”); Maples v. Thomas, 565 U.S. 266, 281 (2012) (restating “that an attorney's negligence, for example, miscalculating a filing deadline, does not provide a basis for tolling a statutory time limit”). Petitioner has not shown that attorney Goldberg's advice or actions made it impossible for Petitioner to file a timely federal habeas petition. See Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2003) (holding that a letter from counsel that gave a miscalculated date for filing a federal habeas corpus petition did not constitute extraordinary circumstances for purposes of equitable tolling).
Because Petitioner has not met her burden of showing extraordinary circumstances which prevented the filing of a timely petition for habeas corpus and because she has not shown reasonable diligence towards filing a timely habeas petition, equitable tolling is unavailable.
C. 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)).
While Petitioner complains about her trial court counsel and the procedures underlying her convictions and sentences, Petitioner admitted her guilt at the change of plea hearing and at sentencing. Further, even if any of Petitioner's habeas grounds could be construed as an actual innocence claim, Petitioner has not presented new reliable evidence as required for the actual innocence/Schlup gateway. In addition, Petitioner has not shown that it is more likely than not that no reasonable juror would have convicted her in the light of any new evidence. Accordingly, the actual innocence/Schlup gateway provides no relief to Petitioner for the untimely filing of Petition by almost two years.
D. The Petition Was Untimely Filed
Under applicable law and the above analysis, the Petition was untimely filed. Petitioner is not entitled to equitable tolling, nor does the actual innocence gateway provide Petitioner relief from the late filing of the Petition. Thus, these untimely proceedings should be dismissed with prejudice.
IV. GROUND FOUR IS NOT COGNIZABLE IN HABEAS PROCEEDINGS
A federal court may only consider a petition for writ of habeas corpus if the petitioner alleges that she “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 6768 (1991); see also Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.1989) (“A habeas petition must allege the petitioner's detention violates the constitution, a federal statute or a treaty.”); see also Gilmore v. Taylor, 508 U.S. 333, 349 (1993) (stating that “mere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas.”). On habeas corpus review, federal courts lack jurisdiction to review state court applications of state procedural rules. Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998) (stating that “[f]ederal habeas courts lack jurisdiction ... to review state court applications of state procedural rules).” Moreover, a habeas petitioner cannot “transform a state law issue into a federal one by merely asserting a violation of due process.” Poland, 169 F.3d at 584 (quoting Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)); see also Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (stating that a petitioner's conclusory suggestion that a federal constitutional right had been violated fell “far short of stating a valid claim of constitutional violation.”)
Further, claimed procedural errors arising during post-conviction relief proceedings are not cognizable in habeas corpus proceedings under 28 U.S.C. § 2254 because they do not challenge a petitioner's detention. See Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (per curiam); see also Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (finding that the post-convictions court's failure to appoint petitioner counsel in his second post-conviction proceedings did not constitute a basis for a federal habeas claim); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (stating that errors in the post-conviction proceeding were not cognizable in federal habeas corpus proceedings). Whether the state courts complied with Arizona statutes and rules governing state post-conviction proceedings is a matter of state law that is not “addressable through habeas corpus proceedings.” Franzen, 877 F.2d at 26.
In Ground Four, Petitioner appears to challenge the superior court's December 2019, denial of her request to modify her sentence in CR201280089 “to IPS or probation” due to her medical conditions, her inability to work, and the Arizona Department of Corrections “no longer provid[ing] indigent supplies of any kind” (Doc. 1 at 10). She also raises issues regarding the trial court's rulings regarding presentence credit and restitution (Doc. 1-1 at 7, 12). These Ground Four claims are not cognizable on federal habeas review. Additionally, Petitioner cannot transform these state law claims into federal claims by citing the Due Process Clause of the Fourteenth Amendment. See Poland, 169 F.3d at 584. On this independent basis, Ground Four should be dismissed with prejudice.
V. MOTION FOR SUMMARY JUDGMENT
After response to the Petition (Doc. 25) and before Petitioner replied in support of the Petition (Doc. 31), Petitioner filed a motion for summary judgment (Doc. 28), which argues the merits of the Petition and requests an oral argument and “an evidentiary hearing if the Court feel[s] it is needed” (Id. at 1). Petitioner also filed a declaration in support of her summary judgment motion (Doc. 29). The motion for summary judgment requests relief as follows: “Time served, to run CR201180486 and CR2012-0089 all concurrent for a total of 10.5 as Petitioner has completed her time, order additional credits to” Petitioner and her immediate release (Doc. 28 at 3).
Respondents responded in opposition to the motion for summary judgment (Doc. 33), arguing that “[t]he Court should deny the motion because motions for summary judgment are inappropriate in habeas proceedings” (Id. at 1).
Habeas petitions are ordinarily addressed in a summary manner, with evidentiary hearings only being directed in limited circumstances. Thus, the summary judgment rules are generally ill fitted to habeas cases. See Rules Governing Section 2254 Cases, Rule 12 (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). See Brian R. Means, Rule 56, Federal Habeas Manual § 8:36 (2018) (discussing the practical difficulties of applying summary judgment to habeas, particularly involving state prisoners in § 2254 cases). The Court has not approved a summary judgment motion in lieu of the proceedings on the Petition ordered by the Court (Doc. 5). In any event, the arguments in the motion for summary judgment are redundant to the arguments raised by Petitioner in the proceedings on the Petition ordered by the Court, and Petitioner cannot avoid the procedural requirements for a habeas petition by filing a motion for summary judgment on the merits. Further, the recommendation herein renders the motion for summary judgment moot. It is therefore recommended that Petitioner's motion for summary judgment (Doc. 28) be denied.
VI. LETTER REGARDING MEDICAL ISSUES
In September 2020, Petitioner filed a letter with the Court regarding medical issues with her spine, leg, shoulder, arm and back; in the letter, Petitioner also complains about the medical care she has been receiving (Doc. 20).
As Petitioner was previously warned (Doc. 15 at 4), if Petitioner challenges her conditions of confinement, Petitioner must raise such claims in a civil rights action pursuant to 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973) (a civil rights action is the proper method for challenging the conditions of a prisoner's confinement); Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979) (the proper remedy for complaints challenging conditions of confinement is a civil rights action under 42 U.S.C. § 1983). While release from prison is not an available remedy in a civil rights action, other types of injunctive relief are available, such as enjoining unconstitutional conduct or requiring compliance with protective measures. Petitioner is also advised that civil rights actions by prisoners are subject to the Prison Litigation Reform Act, which imposes filing fee obligations for prisoners, requires the Court to sua sponte screen civil rights actions, and limits the number of in forma pauperis civil rights actions a prisoner can file.
VII. CONCLUSION
Based on the above analysis, the Petition was untimely filed and neither statutory tolling, equitable tolling, nor the actual innocence gateway apply to render the filing of Petition timely. In addition, Petitioner's state law based grounds, including Petition Ground Four's claim challenging the trial court's denial of her request to modify her sentence in CR201280089 “to IPS or probation”, are not cognizable in federal habeas proceedings. Because it was unnecessary to do so, undersigned did not address Respondents' arguments regarding exhaustion, procedural default, and excuse for procedural default. Undersigned recommends that the Petition (Doc. 1) be dismissed with prejudice because all of the Petition grounds are, at a minimum, untimely and/or not cognizable in habeas proceedings.
Accordingly, IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because the dismissal of the Petition (Doc. 1) is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable and because Petitioner has not made a substantial showing of the denial of a constitutional right.
IT IS FURTHER RECOMMENDED that Petitioner's motion for summary judgment (Doc. 28) 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 (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.