Opinion
CV- 22-01504-PHX-JJT (JZB)
06-07-2023
Keith Eric Koskella, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE: Petitioner Keith Eric Koskella has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner's post-conviction relief proceedings ended on November 30, 2019 when his time to file a petition for review in the Arizona Court of Appeals expired. Petitioner was required to file his habeas petition by November 30, 2020, but it was not mailed until August 30, 2022. The Petition is 21 months overdue. The Court finds that equitable tolling is not merited. Petitioner fails to argue or demonstrate actual innocence. The Court concludes the Petition is untimely. Therefore, the Court will recommend the Petition be denied and dismissed with prejudice.
II. Background.
A. Facts.
On The Arizona Court of Appeals summarized the facts of the case as follows:
The Court presumes the Arizona Court of Appeals' summary of the facts is correct. 28 U.S.C. § 2254(e)(1).
In 2011, Koskella pleaded guilty to attempted fraudulent schemes and artifices as part of a broader plea agreement. In accordance with that agreement, the superior court imposed a two-year probation term to begin on Koskella's release after serving a prison term for a related offense.
While on probation in 2015, Koskella was living with his elderly parents. His mother, a gemologist who designed and created jewelry, stored jewelry items in a safe in the garage. After Koskella's father was hospitalized for two days in April 2015, several items were taken from the jewelry safe. Koskella's parents called the police.
Investigators discovered that Koskella had pawned a microscope in midMarch and a gold necklace just days before. Further investigation revealed that Koskella had also pawned several rings, a watch, and a pendant around the time his father was hospitalized. Koskella's mother identified the microscope and all the jewelry as hers. She denied giving anyone permission to sell these items.
Koskella was arrested and charged with trafficking in stolen property (one count related to the microscope and two counts related to the jewelry) and theft of property worth over $25,000. At trial, he testified that his parents (who he claimed had memory issues) had given him permission to borrow the items and pawn them for a short-term loan, and that ne planned to redeem and return the items the next month.
The jury acquitted him of the jewelry-related offenses, but found him guilty of trafficking the microscope and theft of property worth less than $1,000. The jury also found multiple aggravating circumstances as to each offense.
The superior court found Koskella had two historical prior felony convictions and sentenced him as a repetitive offender to a presumptive term of 11.25 years' imprisonment for trafficking and 6 months for misdemeanor theft. The court found Koskella had violate his probation in the 2011 matter due to his convictions on the new charges, then revoked probation and sentenced him to a mitigated term of 2 years' imprisonment. The court ordered that the sentences for theft and the 2011 conviction run concurrently, with credit for 284 days of presentence incarceration, to be followed by a consecutive term for trafficking.(Doc. 8-1, Ex. A, at 5-6.)
B. Direct Appeal.
On April 24, 2017, Petitioner's counsel filed a timely Anders v. California, 386 U.S. 738 (1967) brief in the Arizona Court of Appeals. (Doc. 8-1, Ex. C, at 13-23.) On September 22, 2017, Petitioner filed a pro se Supplemental Brief. (Doc. 8-1, Ex. E, at 29 46.) On January 30, 2018, the Arizona Court of Appeals affirmed his conviction and sentences. (Doc. 8-1, Ex. A, at 3-9.)
C. First Post-Conviction Review Proceeding.
On October 2, 2017, Petitioner filed a notice of post-conviction relief. (Doc. 8-1, Ex. F, at 57.) On December 6, 2018, Petitioner's counsel filed a PCR petition. (Doc. 8-1, Ex. H, at 62.) On October 29, 2019, the trial court held an evidentiary hearing and denied relief. (Doc. 8-1, Exs. N-O, at 154,158.)
D. Second Post-Conviction Review Proceeding.
On March 10, 2021, Petitioner mailed a pro se PCR petition. (Doc. 8-1, Ex. P, 161.) Petitioner alleged counsel provided ineffective assistance when counsel failed to file a timely notice of appeal and advised him to reject the plea agreement. (Id. at 163.) The court dismissed the petition as untimely and lacking merit. (Doc. 8-1, Ex. Q, at 167.)
III. Petitioner's Habeas Petition.
On August 30, 2022, Petitioner mailed a petition for writ of habeas corpus. (Doc. 1 at 15). On September 6, 2022, the Court filed the Petition. (Doc. 1.) The Court summarized Petitioner's claims as follows:
In Ground One, Petitioner claims he was denied a speedy trial and the trial court denied him due process when it did not dismiss his case after 180 days and require the State to refile the charges.
In Ground Two, Petitioner alleges the prosecutor threatened the victims by telling them that they would be charged with filing a false police report if they did not testify. He also contends the prosecutor misled the jury by “continually stating” that the items Petitioner pawned were “sold” to the pawn shop, which prevented the jury from understanding that Petitioner “had an option to get the items back.”
In Ground Three, Petitioner asserts the trial court imposed an illegal sentence of 11.25 years “flat time.” He contends he was told his term of imprisonment in CR2011-112122 would be “flat time” and his 11.25-year term of imprisonment “would be at 85%.”(Doc. 5 at 2.)
On December 6, 2022, Respondents filed a Response. (Doc. 8.) On January 9, 2023, Petitioner filed a Reply. (Doc. 9.)
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244.
A. Time Calculation.
The AEDPA imposes a one-year limitation period, which begins to run “from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
On January 30, 2018, the Arizona Court of Appeals affirmed Petitioner's conviction and sentences. (Doc. 8-1, Ex. A, at 3-9.) Petitioner's conviction became final on March 5, 2018, 35 days after the decision of the Arizona Court of Appeals. See Ariz. R. Crim. P. 31.19(a) (“Within 30 days after the Court of Appeals issues its decision, any party may file a petition for review with the clerk of the Supreme Court”); State v. Rabun, 782 P.2d 737, 739 (1989) (holding that a 5-day extension should be applied when a notice is mailed to a party that is required to act). Therefore, the one-year limitations period commenced on March 6, 2019, and expired one year later unless tolling applies. See Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the AEDPA limitations period begins to run on the day after the triggering event pursuant to Fed.R.Civ.P. 6(a)).
B. Statutory Tolling.
On October 2, 2017, Petitioner filed a notice of post-conviction relief before his direct appeal was final. (Doc. 8-1, Ex. F, at 57.) No untolled time passed between the conclusion of his direct appeal and PCR proceedings. On October 29, 2019, the trial court held an evidentiary hearing on his PCR claims and denied relief. (Doc. 8-1, Exs. N-O, at 154,158.) Petitioner had 30 days to file a petition for review in the Arizona Court of Appeals. See former Ariz. R. Crim. P. 32.9(c) (providing that a petition for review must be filed within 30 days). Petitioner did not file a petition for review. Assuming arguendo those 30 days tolled his deadline to file a habeas petition, Petitioner's habeas clock began running on November 30, 2019. Petitioner was required to file the habeas petition by November 30, 2020, but it was not mailed until August 30, 2022.
See Melville v. Shinn, 2023 WL 3591691, at *4 (9th Cir. 2023) (holding that a PCR petition was pending under § 2244(d)(2) until petitioner's deadline to file a motion to reconsider expired, even though petitioner did not file a motion to reconsider).
On March 16, 2021, Petitioner filed a second petition for post-conviction relief. (Doc. 8-1, Ex. P, at 161.) Petitioner asserted that trial counsel provided ineffective assistance by advising him to reject a plea offer. (Id. at 163.) The trial court dismissed the petition as meritless and untimely. (Doc. 8-1, Ex. Q, at 166-167.) Petitioner's second postconviction proceeding did not statutorily toll Petitioner's deadline to file a habeas petition because it was untimely and filed after the deadline to file his habeas petition expired. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“When a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”); Trigueros v. Adams, 658 F.3d 983, 988 (9th Cir. 2011) (“An untimely state petition is not ‘properly filed' and does not trigger statutory tolling under AEDPA.”); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed.”); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (where petitioner filed his state postconviction relief proceeding “after the AEDPA statute of limitations ended . . . [t]hat delay resulted in an absolute time bar. . . .”).
Considering the foregoing, this Court finds that there are no grounds upon which this Court can recommend that the district court find the Petition timely based on statutory tolling.
C. Equitable Tolling.
“A petitioner who seeks equitable tolling of AEDPA's [one]-year filing deadline must show that (1) some ‘extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The Petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must show that “the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). “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) (citation omitted).
Here, Petitioner fails to demonstrate extraordinary circumstances were the cause of the untimely filing of his Petition. Petitioner asserts that “only recently have I discovered about my illegal sentence.” (Doc. 1 at 13.) He also asserts that “I have been really sick from time to time and my Parkinson's disease is quite bad from time to time.” (Id.) He also asserts that he was told he “could file another post conviction relief based on ineffective assistance of counsel.” (Id. at 14.) Petitioner never raised the issue of a “flat time” sentence in his direct appeal or in PCR proceedings. He asserts that he “didn't find out he was doing flat time until recently.” (Id. at 9.) Petitioner fails to demonstrate extraordinary circumstances prevented him from learning of his sentence. Petitioner's direct appeal concluded on January 30, 2018. (Doc. 8-1, Ex. A, at 3-9.) The habeas petition was due by November 30, 2020. Petitioner fails to explain why he could not have investigated his “flat time” sentence before November 30, 2020.
In Ground Three, Petitioner asserts he is serving an illegal “flat time” sentence. (Doc. 1 at 8.) In his Reply, Petitioner states the “court assured him that his first 2 year sentence was flat time followed by an 11.25 year sentence which would be 85%.” (Doc. 9 at 6.) Petitioner asserts he “filed a motion with the superior court” to seek relief. (Id.) Petitioner does not identify when he was provided actual notice of his flat time sentence issues.
In his Reply, Petitioner argues that since “the Petitioner is incarcerated in the Arizona Department of Corrections, it was impossible for him to acquire the legal assistance needed for him to file a timely response.” (Doc. 9 at 1.) He asserts “the courts were closed for a significant amount of time, not to mention the prison system completely shut down all visits and contact from anyone from the outside.” (Id.) But Petitioner filed a second petition for post-conviction relief on March 16, 2021. (Doc. 8-1, Ex. P, at 161.) Petitioner raised the same claim (a violation of his Speedy Trial rights) that he argues in Ground One. (Doc. 1 at 6.) Petitioner had the ability to file a habeas petition raising this claim. Petitioner's illness or lack of library access did not prevent him from filing his second PCR proceeding. Petitioner was required to file the habeas petition by November 30, 2020, but it was not mailed until August 30, 2022. Challenges related to Covid-19, library access, or illness would not justify a delay of 21 months. Petitioner fails to establish he is entitled to equitable tolling.
Petitioner's claim in Ground Two (regarding allegations of victim coercion) was raised in his first post-conviction proceedings. As noted above, Petitioner's claim in Ground Three (his “flat time” sentence was “illegal”) was not brought in state proceedings.
D. 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.” To establish a “credible” claim of actual innocence, a petitioner must present “new reliable evidence” and “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). See also Jones v. Taylor, 763 F.3d 1242, 1247 (9th Cir. 2014) (“In order to pass through the Schlup actual innocence gateway, a petitioner must demonstrate that in light of new evidence, it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt.” (cleaned up)).
Petitioner fails to establish that he is actually innocent as required by Schlup. Petitioner does not argue actual innocence to this Court or provide new reliable evidence that he is innocent. The trial court found that Petitioner failed to establish actual innocence in his PCR proceeding. The court noted that the trial jury rejected his claims of lack of intent and ownership of the property in question. (Doc. 8-1, Ex. O, at 159.) Petitioner does not present new evidence here. Petitioner fails to establish a credible claim of actual innocence.
IV. Conclusion.
Based on the above analysis, the Court finds that the Petition is untimely. The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011).
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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. The parties shall have 14 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(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.