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noting that "[t]he Arizona Supreme Court and Arizona Court of Appeals have broadly applied Ariz. R. Crim. P. 1.3. to extend the time to seek appellate review of trial court decisions."
Summary of this case from Johnson v. ShinnOpinion
No. CV-18-04944-PHX-NVW (ESW)
05-13-2020
Hersi Jama Gelleh, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Hersi Jama Gelleh's ("Petitioner") "Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus" (the "Petition") (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition (Doc. 1) as untimely.
I. BACKGROUND
On May 21, 2015, Petitioner pled guilty in the Superior Court of Arizona to Attempt to Commit Second Degree Murder, a class 2 dangerous felony, and one count of Aggravated Assault, a class 3 dangerous felony. (Bates Nos. 127-28). On January 29, 2016, the trial court sentenced Petitioner to a total of twenty-one years in prison. (Bates Nos. 173-74, 177-80).
On March 31, 2016, Petitioner filed an of-right Notice of Post-Conviction Relief ("PCR"). (Bates Nos. 181). The trial court appointed counsel, who could not find a colorable claim for relief. (Bates Nos. 182-84). Petitioner subsequently filed a pro se PCR Petition. (Bates Nos. 188-98). On March 16, 2017, the trial court denied the PCR Petition. (Bates Nos. 222-28). Petitioner did not seek further review by the Arizona Court of Appeals. On May 18, 2017, Petitioner filed a "Motion to Rescind Defendant's Petition for Post-Conviction Relief Dated October 28, 2016," which the trial court denied. (Bates Nos. 229-33).
On March 1, 2018, Petitioner filed a second PCRNotice. (Bates Nos. 234-36). The trial court dismissed the proceeding as untimely. (Bates Nos. 237-40). On December 24, 2018, Petitioner initiated this federal habeas proceeding. (Doc. 1). The Court directed the Clerk of Court to serve the Petition (Doc. 1), Petitioner's Addendum to the Petition (Doc. 4), and Petitioner's Declaration (Doc. 5) on Respondents. (Doc. 9). Respondents filed their Limited Answer on April 19, 2019. (Doc. 13). Petitioner filed a document captioned as "Petitioner's Supplemental Claims to Petition for Writ of Habeas Corpus, 28 U.S.C. § 2254" (Doc. 28), which the Court construed as a Reply. (Doc. 30). In its November 22, 2019 Order (Doc. 30), the Court permitted Petitioner to file a Supplemental Reply, which Petitioner filed in December 2019. (Doc. 32).
Although the Petition was electronically filed on December 27, 2018, Petitioner indicated that he placed it in the prison mailing system on December 24, 2018. (Doc. 1 at 8). The undersigned therefore has applied the prison mailbox rule and has used December 24, 2018 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.").
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, a state prisoner must file his or her federal habeas petition within one year of the latest of:
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 petitioner was prevented from filing by the State action;28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) ("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases."). Yet equitable tolling is applicable only "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. This Proceeding is Untimely
In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's judgment 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). For purposes of the limitations period, "[f]inal judgment in a criminal case means sentence. The sentence is the judgment." Burton v. Stewart, 549 U.S 147, 156 (2007) (internal quotation marks and citation omitted).
Typically "direct review" means a defendant's direct appeal following his or her convictions and sentencing. But under Arizona law, a defendant in a non-capital case who pleads guilty waives his or her right to a direct appeal. See ARIZ. REV. STAT. § 13-4033(B). A plea-convicted defendant, however, is entitled to a Rule 32 of-right proceeding. See Ariz. R. Crim. P. 32.1 and 32.4.
Under Ninth Circuit case law, an Arizona defendant's Rule 32 of-right proceeding is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A). See Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007). The Ninth Circuit explained that "treating the Rule 32 of-right proceeding as a form of direct review helps make the Arizona Constitution's guarantee of 'the right to appeal in all cases' a functioning reality rather than a mere form of words." Id. at 717. Therefore, when an Arizona petitioner's Rule 32 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. See id.
Here, Petitioner was sentenced on January 29, 2016. (Bates Nos. 173-74; 177-80). On March 16, 2017, the trial court filed its order denying Petitioner's of-right PCR Petition. (Bates Nos. 222-28). Ariz. R. Crim. P. 32.9(c) provides a thirty-day deadline for filing a petition for review following the final decision of the trial court on a PCR Petition. In addition, Ariz. R. Crim. P. 1.3(a) provides that when "a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and the notice or paper is served" by certain methods, such as U.S. mail, "five calendar days shall be added to the prescribed period." The Arizona Supreme Court and Arizona Court of Appeals have broadly applied Ariz. R. Crim. P. 1.3. to extend the time to seek appellate review of trial court decisions. See, e.g., State v. Savage, 573 P.2d 1388, 1389 (Ariz. 1978) (applying Ariz. R. Crim. P. 1.3 to extend the time for filing a petition for review of trial court's denial of motion for rehearing in PCR proceeding by five days because the copy of the trial court's order denying the motion for rehearing was mailed); State v. Zuniga, 786 P.2d 956, 957 (Ariz. 1990) ("We therefore hold Rule 1.3 extends the time to file an appeal by five days when the order appealed from has been mailed to the interested party and commences to run on the date the clerk mails the order."); State v. Herrera, 905 P.2d 1377, 1380 (Ariz. Ct. App. 1995) ("Because the trial court mailed to defendant the minute entry granting the extension of time [to file a petition for review of trial court's denial of PCR relief], defendant was entitled to an additional five days to comply with the court's order.").
The undersigned presumes that the Maricopa County Clerk of Court mailed the trial court's order denying PCR relief on March 16, 2017, which is the date the order was filed. (Bates No. 222). See Ariz. R. Crim. P. 35.6 ("Immediately upon the entry of any order in a criminal case, other than in open court, the clerk shall mail to all parties a copy thereof."). Applying the thirty-day period prescribed by Ariz. R. Crim. P. 32.9(c) and the additional five-day period prescribed by Ariz. R. Crim. P. 1.3, the deadline for Petitioner to file a petition for review in the Arizona Court of Appeals was April 20, 2017. Petitioner did not file a petition for review. The undersigned finds that Petitioner's convictions became final on April 20, 2017, the date the time to seek review expired. Therefore, the one-year statute of limitations began running on April 21, 2017. Summers, 481 F.3d at 717; see Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (AEDPA's statute of limitations commences upon the expiration of the time for seeking review of petitioner's judgment in a state's highest court); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying the "anniversary method" of Rule 6(a) of the Federal Rules of Civil Procedure to calculate the expiration date of AEDPA's one-year statute of limitations). Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a habeas petition expired on April 20, 2018, rendering this proceeding untimely.
The trial court's minute entry states that March 16, 2017 is the date the minute entry was electronically filed. (Bates No. 222). Underneath this date is "03/14/2017," which Respondents use in calculating the limitations period. (Doc. 13 at 8). The Arizona Supreme Court has explained that the date in the upper corner of Maricopa County minute entries "is not necessarily the filing date. In most instances, it is the date the deputy clerk of the division first begins to type the minute entry. The typing may take more than one day. Sometimes it is the last date of typing of the minute entry. See Matter of Maricopa County Juvenile Action No . JS-8441 , 849 P.2d 1371, 1372 (Ariz. 1992).
1. Statutory Tolling Does Not Apply
A statutory tolling analysis under AEDPA begins by determining whether the collateral review petition was "properly filed." This is because statutory tolling does not apply to collateral review petitions that are not "properly filed." Pace, 544 U.S. at 417; 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); Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th Cir. 2014) (court looked to Nevada state filing requirements in determining whether habeas petitioner's PCR petition was a "properly filed" application that is eligible for tolling). This includes compliance with filing deadlines. An untimely state collateral review petition is not "properly filed." Pace, 544 U.S. at 417 (holding that "time limits, no matter their form, are 'filing' conditions," and that a state PCR petition is therefore not "properly filed" if it was rejected by the state court as untimely).
Here, the trial court dismissed Petitioner's March 2018 PCR Notice as untimely. (Bates No. 237-40). Accordingly, Petitioner is not entitled to statutory tolling.
2. Equitable Tolling is Unavailable
Petitioner argues that the Court should apply equitable tolling in this case. Petitioner contends that he was impeded from timely filing his habeas petition "due to his mental disabilities, language difficulties, counsel's failure to provide a copy of his case file, and the loss of what little case file records he did possess by prison officials during the limitations period." (Doc. 1 at 8). Petitioner further asserts that his "documented mental health conditions; county jail records and Rule 11 evaluation; constitute extraordinary circumstances that were present during each procedural juncture where he should have filed a timely state petition for review (Rule 32) and, subsequently, habeas petition." (Doc. 31 at 4).
"Where a habeas petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an 'extraordinary circumstance beyond [his] control,' and the deadline should be equitably tolled." Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (citations omitted). In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit articulated a two-part test to determine whether a mental impairment amounts to an "extraordinary circumstance" warranting equitable tolling. The impairment must have (i) been "so severe that the petitioner was unable personally . . . to understand the need to timely file . . . a habeas petition" and (ii) "made it impossible under the totality of the circumstances to meet the filing deadline despite petitioner's diligence." Id. at 1093.
Petitioner's state court documents filed after the commencement of AEDPA's limitations period contradict Petitioner's claim that his mental illness rendered him incapable of timely filing a federal habeas petition. (Bates Nos. 229-32, 234-36). Petitioner's state court filings reflect a coherent and rational thought process. To the extent that Petitioner obtained the assistance of fellow inmates in preparing the documents, this shows that Petitioner was capable of understanding and pursuing his legal rights. See Terry v. Wong, Civil No. 06cv1669 BTM (BML), 2007 WL 2601434 at *11 (S.D. Cal. Sept. 6, 2007) (rejecting claim for equitable tolling based on alleged mental illness because petitioner was able to file a habeas petition in state court thirty-two days into the AEDPA limitations period and monitor the status of his filing by sending correspondence to his appellate counsel and seeking assistance from his "jailhouse lawyer" after months had passed without a court ruling); Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005) (finding no clear error that petitioner was not entitled to equitable tolling based on physical and mental disabilities since he prepared and filed a state habeas petition while suffering from the same alleged disabilities). Petitioner's ability to litigate during the limitations period is evidence that Petitioner's mental health did not prevent him from filing a federal habeas petition. Moreover, Petitioner underwent Rule 11 evaluations in state court and was found competent to stand trial. (Bates Nos. 5-6; Doc. 32 at 6-15). One evaluating psychologist found no signs of a thought disorder and recounted that Petitioner indicated that he can concentrate "reasonably well." (Doc. 32 at 8). Another evaluating psychologist found that Petitioner's ability to make reasoned judgments and problem solve appeared to be intact. (Id. at 15). The undersigned recommends that the Court reject Petitioner's claim of entitlement to equitable tolling due to his alleged mental illnesses.
Regarding Petitioner's assertion that he has "language difficulties" (Doc. 1 at 8), a habeas petitioner's difficulty with the English language can justify equitable tolling, but only where the language barrier actually prevents timely filing. Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006). "[A] non-English-speaking petitioner seeking equitable tolling 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. Petitioner has made no such showing. Further, it is noted that Petitioner answered affirmatively when the trial court asked Petitioner at the change of plea hearing whether Petitioner can understand English. (Bates No. 100).
Finally, Petitioner alleges that "on 03-31-2016 and 04-19-2017, when Petitioner should have pursued his respective state PCR and federal habeas rights . . ., he did not have access to his legal files . . . ." (Doc. 31 at 5). This conclusory assertion does not establish an entitlement to equitable tolling. Petitioner has not shown that the alleged denial of access to his legal files prevented him from filing a federal habeas petition prior to the expiration of the limitations period on April 20, 2018. See Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009) (lack of legal files does not entitle a petitioner to equitable tolling when the petitioner knows the factual bases of his claims); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (per curiam) (pro se status, deficient prison library, and reliance on helpers who were transferred or too busy to assist him did not warrant equitable tolling; inmate failed to demonstrate diligence in accessing prison law library when inmate failed to make any specific allegation as to what he did to pursue his claims and complain about situation).
It is Petitioner's burden to show that extraordinary circumstances beyond Petitioner's control made it impossible for him to file a timely federal petition. Roy, 465 F.3d at 969; Gibbs, 767 F.3d at 888 n.8. Petitioner's ignorance of the law is not itself a basis for equitable tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009) ("[A] pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling."), Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (pro se petitioner's lack of legal sophistication not by itself extraordinary circumstance warranting equitable tolling); see also Alexander v. Schriro, 312 F. App'x 972, 976 (9th Cir. 2009) ("Ultimately [the petitioner] made an incorrect interpretation of the statute and miscalculated the limitations period. This does not amount to an 'extraordinary circumstance' warranting equitable tolling."). There is no indication in the record that the circumstances of Petitioner's incarceration made it "impossible" for Petitioner to timely file a federal habeas petition. Chaffer, 592 F.3d at 1049 (finding that equitable tolling did not apply where there was "no indication in the record that [circumstances] made it 'impossible' for [prisoner] to file on time"); Wilson v. Bennett, 188 F. Supp. 2d 347, 353-54 (S.D.N.Y. 2002) (allegations that the petitioner lacked legal knowledge and had to rely on other prisoners for legal advice and in preparing his papers "cannot justify equitable tolling" as such circumstances are not "extraordinary"). Petitioner has failed to show the existence of "extraordinary circumstances" that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a "prisoner must show that the 'extraordinary circumstances' were the cause of his untimeliness"). Equitable tolling therefore is unavailable. Accordingly, because the limitations period was not statutorily or equitably tolled, the Petition is untimely.
B. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the Untimeliness of the Petition
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the "actual innocence gateway" to federal habeas review that was applied 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. The "actual innocence gateway" is also referred to as the "Schlup gateway" or the "miscarriage of justice exception."
Under Schlup, a petitioner seeking federal habeas review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). "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, 133 S.Ct. at 1927 (explaining the significance of an "[u]nexplained delay in presenting new evidence"). 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, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327). 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. Thomas, 523 U.S. 538, 559 (1998)).
To the extent Petitioner may assert the actual innocence/Schlup gateway, Petitioner has not presented any new reliable evidence establishing that he is factually innocent of his convictions. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) ("In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him "within the 'narrow class of cases . . . implicating a fundamental miscarriage of justice.'") (citations omitted); Shumway, 223 F.3d at 990 ("[A] claim of actual innocence must be based on reliable evidence not presented at trial."); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) ("[W]e have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt."). Because Petitioner has failed to satisfy his burden of producing "new reliable evidence" of his actual innocence, the undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse the untimeliness of this federal habeas proceeding. See Smith v. Hall, 466 F. App'x 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the "threshold requirement of coming forward with 'new reliable evidence'"); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) ("To meet [the Schlup gateway standard], [petitioner] must first furnish 'new reliable evidence . . . that was not presented at trial.'").
Moreover, it is unclear "whether the Schlup actual innocence gateway always applies to petitioners who plead guilty." Smith v. Baldwin, 510 F.3d 1127, 1140 n. 9 (9th Cir. 2007) ("We are aware of a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas. . . . For purposes of our analysis, however, we assume without deciding that the actual innocence gateway is available to [the plea-convicted habeas petitioner]."). Decisions in which the Ninth Circuit or United States Supreme Court have considered gateway claims of actual innocence in a plea context involved subsequent case law that arguably rendered the defendant's acts non-criminal. See, e.g. Bousley v. United States, 523 U.S. 614, 621-23 (1998); Vosgien v. Persson, 742 F.3d 1131, 1134-35 (9th Cir. 2013); United States v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).
IV. CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that the Petition (Doc 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 Report and 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. Thereafter, the parties have fourteen days within which to file a response to the 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 determinations 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.
Dated this 13th day of May, 2020.
/s/_________
Honorable Eileen S. Willett
United States Magistrate Judge