Opinion
CV-23-8002-PCT-JAT (JFM)
10-26-2023
Marzet Farris, III, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS AND RELATED MOTIONS
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), a Motion to Stay (Doc. 17), a Motion for Discovery (Doc. 20), a Motion to Expand the Record (Doc. 21), a Motion for Evidentiary Hearing (Doc. 22), and a Motion to Supplement the Record (Doc. 35). The Petitioner's Petition and motions are now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
The following summary of the facts is drawn from the decision of the Arizona Court of Appeals in disposing of Petitioner's direct appeal.
Petitioner and co-Defendant Stelmasek developed a romance and conspired to murder the victim, Stelmasek's husband. Petitioner went to the Stelmasek house in Prescott, Arizona, repeatedly stabbed the victim, severing his jugular vein. The victim was wrapped in the bedding, drug through the house, and placed in his own van. Petitioner drove the van to Albuquerque, abandoned it at the airport (where it was eventually discovered by police) and flew home to North Carolina. When arrested two weeks later, Petitioner had a healing stab wound, and the victim's blood was found on his shoes. While in jail, Petitioner wrote Stelmasek to coordinate a claim of self-defense. (Exh. S, Mem. Dec. 10/4/16 at ¶¶ 2-5.) (Exhibits herein are referenced as follows: Exhibits to the Petition (Doc. 1-3 at 28-120) as “Exh. P-”; to the Answer (Doc. 1), as “Exh. ”.)
Petitioner appends to his Petition various transcripts (Doc. 1-1 at 1 to Doc. 1-3 at 27), and various decisions and orders in the state courts (Doc. 1 at 15-27). These records have been provided with the Answer. The undersigned provides citations to only the copies of these exhibits provided with the Answer.
Petitioner identifies but fails to attach Exhibits P-15, -21, and -22. (Doc. 1-3 at 97, 111, 115.) No reference to these exhibits is made by Petitioner in support of the issues on which the Petition is resolved. Accordingly, the undersigned has not directed the supplementation of the record to provide them.
B. PROCEEDINGS AT TRIAL
Petitioner and co-defendant were indicted in Yavapai Superior Court on July 8, 2011. (Exh. A, Indictment.) An Amended Indictment (Exh. C) was issued October 19, 2011, charging Petitioner and co-defendant with first degree murder, conspiracy to commit murder, evidence tampering, and moving a dead body.
Petitioner proceeded to a jury trial with counsel, and testified that co-Defendant stabbed the victim, and Petitioner was in the home solely to try to stop her. He admitted to disposing of evidence, and transporting and abandoning the body in the van at the airport. (Exh. S, Mem. Dec. 10/4/16 at ¶¶ 6-8.) The prosecution proceeded on an “accomplice” theory, avoiding the need to show which co-defendant actually stabbed the victim (id. at ¶¶ 15-19), and introduced testimony from a friend of Petitioner (who had paid for his airfare to Phoenix and from Albuquerque) that four days after the murder Petitioner told her “I killed someone.” (Id. at ¶¶22-23.)
Petitioner was convicted as charged, and he was sentenced on April 8, 2015 to consecutive terms of natural life on the murder and life on the conspiracy, and concurrent terms of 1 and 1.5 years on the other lesser convictions. (Id. at ¶ 9; Exh. N, Sentence.)
C. PROCEEDINGS ON DIRECT APPEAL
On April 17, 2015 Petitioner filed a notice of direct appeal. (Exh. O, Notice of Appeal; Exh. P Open. Brf.) In a Memorandum Decision issued October 4, 2016 (Exh. S) the Arizona Court of Appeals affirmed Petitioner's convictions and sentences.
Petitioner filed a Petition for Review (Exh. T) with the Arizona Supreme Court, which summarily denied review on April 18, 2017, with a notice of decision issued April 19, 2017. (Exh. P-6, Order 4/19/17 (Doc. 1 at 27).) The Arizona Court of Appeals issued its Mandate on May 23, 2017 (Exh. U).
D. PROCEEDINGS ON POST-CONVICTION RELIEF
On May 15, 2017, Petitioner commenced his post-conviction relief (PCR) proceeding by filing a PCR Notice (Exh. V). Counsel eventually filed a PCR Petition (Exh. W). On November 6, 2018 the PCR court denied on the merits the claims of ineffective assistance of counsel. (Exh. Y, Order 11/6/18.)
Petitioner then filed a pro per Motion to Vacate (Exh. BB), which was granted to the extent that counsel was authorized to file a supplement to the PCR petition with any additional claims. (Exh. CC, Order 3/27/19.) Substituted counsel eventually filed a Supplemental Petition (Exh. EE), but then moved to strike it so Petitioner could file his own pro per supplemental petition. The motion was granted (Exh. GG), and Petitioner filed his pro per Supplemental Petition (Exh. HH).
On October 30, 2020, the PCR court denied the Petition (Exh. KK).
On December 2, 2020, Petitioner sought filed his Petition for Review (Exh. LL) seeking review by the Arizona Court of Appeals which granted review, but summarily denied relief based on absence of an abuse of discretion or error of law. (Exh. MM, Mem. Dec. 6/15/21.)
In a Petition for Review filed September 29, 2021 Petitioner sought review by the Arizona Supreme Court (Exh. NN), which denied review on January 24, 2022, and the Arizona Court of Appeals issued its mandate on February 23, 2022 (Exh. OO).
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at San Luis, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) on January 4, 2023. Petitioner's Petition asserts the following eight general grounds for relief:
Ground One: Prosecutorial misconduct;
Grounds Two, Three, and Four: Ineffective assistance of counsel;
Ground Five: “judicial abuse of discretion” in violation of Petitioner's Fourteenth Amendment rights;
Ground Six: “The state's change in its theory of prosecution after the conclusion of evidence violated [Petitioner's] Due Process Rights”;
Ground Seven: “The LC's summary judgment predicated upon counsel's trial strategy proves baseless, as [Petitioner] meritoriously demonstrated trial strategy played no part in trial counsel's decision-making and inaction”; and
Ground Eight: “Were the LC's rulings unbiased and without prejudice to either [Petitioner] or the interests of justice? And did the LC's due diligence rise to an acceptable level of an objective reasonability standard, as defined by Strickland?”(Order 1/17/23, Doc. 4 at 2.) Respondents break down these grounds into some 25 subclaims. (Answer, Doc. 11 at 2-4.) Given the conclusions reached herein, the Court need not resolve the divisions among various subclaims.
Response - On February 24, 2023, Respondents filed their Answer (Doc. 11). Respondents argue: (1) the petition is untimely and barred by the statute of limitations; (2) various claims are procedurally defaulted; (3) various claims are non-cognizable state law claims or non-cognizable challenges to defects in post-conviction relief proceedings; and (4) the balance of the claims are without merit.
Reply - On July 14, 2023, Petitioner filed his Reply (Doc. 29). Petitioner argues: (1) Respondents assert his PCR petition for review was timely (id. at 8); (2) the cognizability and merits of his claims and their proper exhaustion (id. at 9-53); (3) cause and prejudice to excuse his procedural defaults (id. at 54-55); (4) he is entitled to statutory tolling for the entire time his PCR proceeding was pending including any gaps between levels of review because his PCR Notice was timely, and he is entitled to tolling for unsought review (id. at 55-57); (5) he fairly presented his claims to the state courts, and the state's rules interfered with his ability to do so (id. at 57-60); (6) not all of his claims were adjudicated on the merits, or were incorrectly resolved (id. at 61-64); (7) any differences between his habeas claims and claims presented to the state courts do not preclude proper exhaustion (id. at 64-65); (8) he has met the standards for relief under 28 U.S.C. § 2254(d) (id. at 65-70); (9) the state courts abused their discretion (id. at 70-72); (10) he is actually innocent (id. at 72-74); (11) he has diligently pursued his claims, but was stymied by delays in obtaining records from Verizon wireless beginning in March 2022, prison transfers in April and May 2022, and the resulting loss of his legal property boxes which continued through October 2022, loss of portions of counsel's file, resulting in a delay of at least four months in filing his Petition (id. at 74-76); (12) he can show cause and prejudice to excuse his procedural defaults (id. at 76-78); (13) he should be permitted to return to the state courts to exhaust his state remedies (id. at 78-79); (14) a certificate of appealability should be denied (id. at 80-84); and (15) Respondents should be denied leave to amend their Answer (id. at 84-85).
Supplements - The Court observed that Respondents' Answer only identified transcripts “in possession” of Respondents (Answer, Doc. 11 at 4-5), and thus failed to comply with Rule 5(c), Rules Governing § 2254 Cases. Respondents were ordered to file a notice fully complying with that rule, and Petitioner was given an opportunity to amend his reply or supplement the record based on the failure to comply with Rule 5(c).
Respondents filed the required Notice (Doc. 34), and Petitioner filed a Notice (Doc. 36) declining to amend his Reply, and Motion to Supplement (Doc. 35) addressed hereinafter.
III. PETITION BARRED BY STATUTE OF LIMITATIONS
A. ONE YEAR LIMITATIONS PERIOD
Respondents assert that Petitioner's Petition is untimely. As part of the Anti- Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed. Id.
B. COMMENCEMENT OF LIMITATIONS PERIOD
The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. § 2244(d)(1)(B)-(D). Petitioner proffers no argument that any of these apply.
Here, Petitioner's direct appeal remained pending at least through April 18, 2017, when the Arizona Supreme Court denied his Petition for Review on direct appeal. (Exh. P-6, Order 4/19/17 (Doc. 1 at 27).) Here, however, the Arizona Supreme Court's notice of its decision was not issued until April 19, 2017. (Id.)
Respondents argue that Petitioner's one year was running for the nine days between his sentencing on April 8, 2015 and his notice of appeal on April 17, 2015. (Answer, Doc. 11 at 16.) Respondents conflate the standard for “pending” post-conviction applications necessary for statutory tolling under 28 U.S.C. § 2244(d)(2) with the finality of the conviction under § 2244(d)(1)(A) which is required to commence the running of the statute. The gap between sentencing and a timely notice of appeal is irrelevant to the latter, because the limitations period does not begin running until finality, when the appeal is concluded.
For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The rules of the Supreme Court of the United States, require that a petition for a writ of certiorari be filed “within 90 days after entry of the order denying discretionary review.” U.S.S.Ct. R. 13(1). In this case, the Arizona Supreme Court's Order was entered on April 19, 2017. Accordingly, because Petitioner did not file a petition for a writ of certiorari, his conviction became final 90 days later, on Tuesday, July 18, 2017.
“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).” U.S.S.Ct. R. 13(3).
C. STATUTORY TOLLING
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). However, statutory tolling of the habeas limitations period only results from state applications that are “properly filed,” and an untimely application is never “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Petitioner's limitations period would have commenced running no earlier than July 19, 2017. However, no later than May 15, 2017 (before his limitations period began running) Petitioner's PCR proceeding was commenced when his PCR Notice (Exh. V) was filed. That proceeding remained pending, and the statute of limitations tolled from its inception, until at least October 30, 2020 when the PCR court entered its order (Exh. KK) denying the PCR Petition.
In Melville v. Shinn, 68 F.4th 1154, 1160 (9th Cir. May 23, 2023), the Ninth Circuit held that a post-conviction application remains pending until the expiration of time allowed to seek further review, even if such review is not sought. Although the trial court's order was dated October 29, 2020, it was not entered by filing until October 30, 2020. (Exh. KK at 1.) Under Ariz. R. Crim. Proc. 32.16(a)(1), Petitioner had 30 days “after the entry of the trial court's final decision” or until November 30, 2020, to file his petition for review with the Arizona Court of Appeals. Under Melville, tolling continued at least through that date.
For purposes of § 2244(d)(1)(A), an application for state collateral review is also “pending” during “the time between a lower state court's decision and the filing of a notice of appeal to a higher state court.” Carey v. Saffold, 536 U.S. 214, 217 (2002). However, such appeal must be timely. The Arizona courts never explicitly addressed the timeliness of Petitioner's PCR petition for review, but addressed only its merits. But that is not enough to show that the petition was timely. Evans v. Chavis, 546 U.S. 189, 197 (2006) (“denying a petition ‘on the merits' does not automatically indicate that the petition was timely filed”).
In the absence of a clear indication by the state courts that a particular request for review was timely or untimely, the habeas court must itself determine what the state courts would have held in respect to timeliness. Evans, 546 U.S. at 198. Here, Petitioner's petition for review (Exh. LL) was filed December 2, 2020, plainly after the November 30, 2020 deadline.
For purposes of calculating tolling under § 2244(d), the federal prisoner “mailbox rule” applies. Under this rule, a prisoner's state filings are deemed “filed” for purposes of tolling when they are delivered to prison officials for mailing. Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000). But this does not necessarily render the state filing “timely” for state law purposes. However, the “mailbox rule” applies to determining whether an Arizona prisoner's state filings were timely. Although a state may direct that the prison mailbox rule does not apply to filings in its court, see Orpiada v. McDaniel, 750 F.3d 1086, 1090 (9th Cir. 2014), Arizona has applied the rule to a variety of its state proceedings, including PCR proceedings. See e.g. Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.1995) (notice of direct appeal); State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App.1999) (PCR notice); State v. Goracke, 210 Ariz. 20, 23, 106 P.3d 1035, 1038 (App. 2005) (petition for review to Arizona Supreme Court in PCR proceeding).
Here, however, there is no evidence of record that Petitioner's petition for review was delivered to prison officials for mailing on or before November 30, 2020. Petitioner's petition for review' was signed on November 30, 2020 and its Certificate of Service indicates it was “mailed...via United States Postal Service” on that date (Exh. LL at 21 and Cert. of Service). Cf. State v. Goracke, 210 Ariz. 20, 23, 106 P.3d 1035, 1038 (App. 2005) (applying prison mailbox rule where mailing certificate asserted “I have placed this Petition for Review in the institutional mail at Menard Correctional Center”).
Accordingly, the undersigned must conclude that Petitioner's petition for review to the Arizona Court of Appeals was untimely. Respondents' conflicting assertions to the contrary, that Petitioner “filed a timely petition for review with the Arizona Court of Appeals” (Answer, Doc. 11 at 14 (citing Exh. LL)), must be rejected as unsupported by the record. Therefore that petition for review did not result in statutory tolling. Therefore, Petitioner's one year proceeded to run from December 1, 2020, and expired one year later on November 30, 2021.
Nor did his subsequent petition for review by the Arizona Supreme Court result in any statutory tolling, because it simply sought further review in the same untimely proceeding. Nor would it result in statutory tolling as a standalone PCR proceeding. In addition to time constraints, “the court and office in which [a petition] must be lodged” is a precondition to a petition being properly filed for purposes of statutory tolling of the habeas limitations period. Artuz v. Bennett, 531 U.S. 4, 8 (2000). In Arizona, postconviction relief proceedings must be filed “in the court where the defendant was sentenced,” Ariz. R. Crim. Proc. 32.4(b)(1), which was the trial court not the Arizona Supreme Court.
Therefore, Petitioner's one year commenced running on December 1, 2020, and without further tolling expired on November 30, 2021, and his January 4, 2023 federal Petition was over thirteen months delinquent.
D. EQUITABLE TOLLING
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and ‘the extraordinary circumstances were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances ma[de] it impossible to file a petition on time.Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations omitted). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.' ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)).
Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); 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.”).
Here Petitioner argues he is entitled to equitable tolling, asserting his consistent diligence throughout his legal proceedings, and citing to the following extraordinary circumstances resulting in a delay of at least four months in filing his Petition: (1) delays in obtaining records from Verizon wireless beginning in March 2022; (2) prison transfers in April and May 2022; (3) the loss of his legal property boxes which continued through October 2022 and the loss of portions of counsel's file. (Reply, Doc. 29 at 74-76.) Even if this Court could assume these events in 2022 constituted extraordinary circumstances, Petitioner fails to explain how they precluded him from timely filing his federal petition while his one year was running, i.e. from December 1, 2020 to November 30, 2021.
Petitioner fails to show he is entitled to equitable tolling.
E. ACTUAL INNOCENCE
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383 (2013). To invoke this exception to the statute of limitations, a petitioner “'must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This exception, referred to as the “Schlup gateway,” applies “only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” Id. at 400 (quoting Schlup, 513 U.S. at 316). “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-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324.
Petitioner asserts his actual innocence as a general proposition. (Reply, Doc. 29 at 72-74.) But Petitioner offers no new credible evidence of his innocence. Instead he attempts to equate his constitutional challenges to his conviction with actual innocence. “[I]t is herein contended and offered that the simple act of initiating appellate review, the presentment therein of grounds and claims of constitutional infringement for that of the court's legitimate consideration, represents a definitive, precise and conscientious statement of actual innocence by the petitioner, in proclaiming one's custody to be in violation of the U.S. Constitution.” (Id. at 73.) He asserts that such claims themselves “constitute new evidence.” (Id.)
Petitioner is mistaken. Constitutional violations or other legal errors do not substitute for evidence of actual innocence. Moreover, evidence tainted by constitutional violations is not excluded in the evaluation of actual innocence. Instead, in making a finding on actual innocence, the federal habeas court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial. House v. Bell, 547 U.S. 518, 538 (2006).
Petitioner fails to point to any new credible evidence of his actual innocence.
F. SUMMARY RE STATUTE OF LIMITATIONS
Taking into account the available statutory tolling, Petitioner's one year habeas limitations period commenced running on December 1, 2020, and expired on November 30, 2021, making his January 4, 2023 Petition over 13 months delinquent. Petitioner has shown no basis for additional statutory tolling, and no basis for equitable tolling or actual innocence to avoid the effects of his delay. Consequently, the Petition must be dismissed with prejudice as barred by the statute of limitations.
IV. OTHER DEFENSES
Because, under the facts alleged, record provided, and arguments presented, the Court must conclude the Petition is barred by the statute of limitations, Respondents' other procedural and substantive defenses are not addressed.
V. PENDING MOTIONS
Motion to Stay - Petitioner's Motion to Stay (Doc. 17) seeks to say consideration of his Petition to allow him to exhaust his state remedies on any claims deemed to be “procedurally defaulted,” including dismissal of the petition without prejudice. Respondents argue (Doc. 19) such a stay procedure applies only to mixed petitions with unexhausted claims, not procedurally defaulted ones for which state remedies are no longer available and thus are “technically exhausted.” Petitioner has not replied.
In light of the conclusions herein that the Petition is untimely, there is nothing to be gained by such a stay. Any claims newly exhausted would likewise be untimely. Accordingly, the Motion to Stay should be denied.
Motion for Discovery - Petitioner's Motion Requesting Discovery (Doc. 20) seeks leave to conduct discovery regarding records from Verizon Wireless concerning the state's “cell phone evidence,” arguing he has never received “pristine” copies of such records. Respondents argue (Doc. 25) Petitioner is precluded by 28 U.S.C. § 2254(d)(1) from presenting any new evidence in support of his claims. Petitioner has not replied.
In light of the conclusions herein that the Petition is untimely, there is nothing to be gained by such discovery, none of which is directed to showing the timeliness of the Petition. Accordingly, the motion for discovery should be denied.
Motion to Expand Record - Petitioner's Motion to Expand the Record (Doc. 21) seeks an order directing Respondents to submit evidence in support of their allegations, including interview transcripts, interrogatories to the defense investigator and defense counsel, and records from Verizon Wireless. Respondents argue (Doc. 23) the motion should be denied on various grounds, including Petitioner's possession of some records, the irrelevance of some records, has at least some of the records in his possession, fail to and the relevance of some of records, particularly in light of the procedural defaults. Respondents furth rely on the limitation to the state court record under 28 U.S.C. § 2254(d)(1).
In light of the conclusions herein that the Petition is untimely, there is nothing to be gained by the requested expansions, none of which are directed to showing the timeliness of the Petition. Accordingly, the Motion to Expand the Record should be denied.
Motion for Evidentiary Hearing - Petitioner's Motion Requesting Evidentiary Hearing (Doc. 22) seeks an evidentiary hearing to show the state courts failed to consider key aspects of the record and thus made unreasonable determinations of the facts. Respondents argue (Doc. 24) that under the limitations of 28 U.S.C. § 2254(d) and (e) Petitioner is not entitled to an evidentiary hearing, and Petitioner fails to identify the claims to which any new evidence would relate. Petitioner has not replied.
In light of the conclusions herein that the Petition is untimely, there is nothing to be gained by such an evidentiary hearing, which is not directed to showing the timeliness of the Petition. Accordingly, the motion for evidentiary hearing should be denied.
Motion to Supplement Record - Petitioner's Motion to Supplement the Record (Doc. 35) seeks to support Petitioner's claims with: (1) interview transcripts; (2) the state prosecutor's file; (3) audio transcripts; (4) expert testimony from Verizon's employees. Respondents argue (Doc. 37) the motion is untimely under the Court's scheduling orders, seeks records precluded under 28 U.S.C. § 2254(d)(1), and seeks to supplement with records previously available to Petitioner but not provided by him. Petitioner replies (Doc. 38) that Respondents are obfuscating, his motion is timely under the Order filed September 1, 2023 (Doc. 33), the supplements are not precluded by 28 U.S.C. § 2254(d)(1) because the materials were “promoted” to the state courts that chose to ignore them and the state courts' decisions do not survive review under 28 U.S.C. § 2254(d)(1), Respondents likewise possessed various records yet failed to include them in the record, shifting the burden of proof to Petitioner, and Petitioner previously lost some of the records he seeks to have included.
In light of the conclusions herein that the Petition is untimely, there is nothing to be gained by the requested supplements, none of which are directed to showing the timeliness of the Petition. Accordingly, the Motion to Supplement the Record should be denied.
VI. CERTIFICATE OF APPEALABILITY
The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
VII. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Motion to Stay (Doc. 17), Motion for Discovery (Doc. 20), Motion to Expand the Record (Doc. 21), Motion for Evidentiary Hearing (Doc. 22), and Motion to Supplement the Record (Doc. 35) be DENIED.
(B) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE as untimely.
(C) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VIII. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”