Opinion
CV- 22-01232-PHX-DWL (JZB)
05-25-2023
Jose Javier Merced, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
Petitioner Jose Javier Merced has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 4.)
I. Summary of Conclusion.
On October 10, 2019, the trial court sentenced Petitioner. Petitioner had 90 days, or until January 8, 2020, to properly file a notice of post-conviction relief. Because he did not file a notice within that time period, the one-year statute of limitations to file a habeas petition began running on January 9, 2020, and expired one year later. Petitioner mailed his special action/habeas petition on July 19, 2022. The petition is untimely by more than 18 months. The Court finds that statutory and equitable tolling are not merited and Petitioner fails to 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 June 23, 2016, a grand jury returned a true bill against Petitioner that charged five counts of Sexual Exploitation of a Minor and one count of Sexual Conduct with a minor. (Doc. 12-1, Ex. A, at 3-4.) On August 22, 2019, Petitioner pleaded guilty to three counts of Attempted Sexual Exploitation of a Minor (Amended Counts Two, Three, and Five). (Doc. 12-1, Ex. D, at 15-16.) Petitioner stipulated to a term of 10 to 15 years imprisonment for Count Two, with consecutive lifetime probation for Counts Three and Five. (Doc. 12-1, Ex. E, at 19-20.) On October 10, 2019, the court sentenced Petitioner to 14.5 years of imprisonment for Count Two, with consecutive lifetime supervised probation for Counts Three and Five. (Doc. 12-1, Ex. F, at 27-29.)
B. First Post-Conviction Relief Proceedings.
On August 20, 2020, Petitioner signed a notice of post-conviction relief (“PCR”) that was filed on August 31, 2020. (Doc. 12-1, Ex. G, at 34.) On September 29, 2020, the PCR court dismissed Petitioner's “Notice Requesting Post-Conviction Relief pursuant to Ariz. R. Crim. P 33.2(b)(1) and Ariz. R. Crim. P. 33.11(a) .” (Doc. 8-1, Ex. O, at 162.)
A defendant must file a notice for post-conviction relief “within a reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P. 33.4(b)(3)(B). When the claim is raised in an untimely notice, the defendant “must explain the reasons for not raising the claim . . . in a timely manner.” Ariz. R. Crim. P. 33.2(b)(1). “If the notice does not provide sufficient reasons why the defendant did not raise the claim . . . in a timely manner, the court may summarily dismiss the notice.” Id.
Rule 33.11 allows a trial court to summarily dismiss a petition for post-conviction relief if it contains no “claim presenting] a material issue of fact or law that would entitle the defendant to relief.” Ariz. R. Crim. P. 33.11(a).
On May 17, 2021, Petitioner filed a “special action” with the Arizona Court of Appeals. (Doc. 12-1, Ex. I, at 48.) On May 19, 2021, the court declined to accept jurisdiction. (Doc. 12-1, Ex. J, at 55.) On June 30, 2021, the court denied Petitioner's motion for reconsideration. (Doc. 12-1, Ex. K, at 58.)
On July 12, 2021, Petitioner filed a “application for writ of habeas corpus” in the Arizona Supreme Court. (Doc. 12-1, Ex. L, at 60.) On September 22, 2021, the Arizona Supreme Court denied the motion. (Doc. 12-1, Ex. M, at 65.)
III. Petitioner's Habeas Petition.
On July 19, 2022, Petitioner mailed a “special action” (doc. 1 at 5) that the Court construed as a petition for writ of habeas corpus (doc. 3 at 1). On July 22, 2022, the Court filed the Petition. (Doc. 1.) On August 2, 2022, the Court dismissed the petition with leave to amend within 30 days. (Doc. 3 at 4.) On August 16, 2022, Petitioner mailed the Amended Petition. (Doc. 3 at 11.) On August 29, 2022, the Court filed Petitioner's Amended Petition. (Doc. 4.) The Court summarized Petitioner's claims as follows:
In Ground One, he alleges a violation of his Fifth Amendment rights in connection with his post-conviction proceedings. In Ground Two, he alleges violation of his Sixth, Eighth, Ninth, and Fourteenth Amendment rights to due process, to equal protection, and to be free from double jeopardy.(Doc. 7 at 2.) Ground Three, which “seeks relief with respect to his conditions of confinement-specifically, his access to law library materials and ability to obtain assistance from other prisoners,” was dismissed by the Court for lack of jurisdiction. (Id.)
On December 7, 2022, Respondents filed a Response. (Doc. 12.) On December 23, 2022, Petitioner filed a Motion to Strike. (Doc. 13.) Petitioner also filed motions for “summary index of the record” and status in the matter. (Docs. 14-17.)
The Court will address these motions for summary of index in a separate order filed concurrently with this report and recommendation.
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 October 10, 2019, the trial court, pursuant to a plea agreement, sentenced Petitioner to 14.5 years of imprisonment and two consecutive terms of lifetime probation. (Doc. 12-1, Ex. F, at 26.) Petitioner had 90 days, or until January 8, 2020, to properly file a notice of post-conviction relief. Because he did not file a notice within that time period, the one-year statute of limitations to file a habeas petition began running on January 9, 2020 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)). Here, the petition was due by January 9, 2021, but Petitioner did not mail a habeas petition until July 19, 2022. The amended habeas petition is untimely absent statutory tolling.
Petitioner mailed a “special action” (doc. 1 at 5) that the Court construed as a petition for writ of habeas corpus (doc. 3 at 1). Petitioner subsequently filed an amended petition. (Doc. 4.)
B. Statutory Tolling.
Petitioner is not entitled to statutory tolling. Petitioner filed his post-conviction relief notice more than seven months after his deadline. The trial court dismissed the matter as untimely. Petitioner thus never “properly filed” an application for post-conviction review. 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.”); Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (“An untimely petition . . . is not ‘properly filed' pursuant to 28 U.S.C. § 2254(d)(2), and so it does not toll the statute of limitations.”). As noted above, the AEDPA one-year statute of limitations expired on January 9, 2021.
On May 17, 2021, Merced filed “special action” with the Arizona Court of Appeals, but on May 19, 2021 the court declined to exercise jurisdiction. (Doc. 12-1, Exs. I, J, at 48, 55.) On September 22, 2021, the Arizona Supreme Court denied Petitioner's writ of habeas corpus. (Doc. 12-1, Ex. M, at 65.) Petitioner's motions in that court proceeding did not toll the statute of limitations because they were filed after the limitations period had already expired on January 9, 2021. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the re-initiation 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 post-conviction 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 Amended Petition timely based on statutory tolling.
C. Equitable Tolling.
“A petitioner who seeks equitable tolling 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. The trial court found that Petitioner had notice at sentencing that he was required to file a PCR notice “within 90 days of the oral pronouncement of sentence.” (Doc. 12-1, Ex. H, at 45.) Petitioner fails to explain why his PCR petition was seven months overdue. The trial court dismissed the PCR proceeding on September 29, 2020 (doc. 8-1, Ex. O, at 162) but Petitioner waited until May 17, 2021, to file a “special action” with the Arizona Court of Appeals. (Doc. 12-1, Ex. I, at 48.) In the state courts, Petitioner did not explain why he failed to file a timely PCR petition, or why he waited more than six months to seek review in the Arizona Court of Appeals. In his amended habeas petition, Movant wrote “N/A” to explain why the one-year statute of limitations in 28 U.S.C. § 2244(d) does not bar his petition. (Doc. 4 at 11.) Petitioner fails to establish he is entitled to equitable tolling.
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 admitted his guilt when he pleaded guilty. Petitioner's avowals at a plea hearing, as well as any findings made by the judge accepting the plea, constitute a “formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 7374 (1977). Assuming arguendo that Petitioner may present evidence of actual innocence, Petitioner does not do so. He does not argue actual innocence to this Court. The trial court found that Petitioner “not provide any newly discovered facts” during his PCR proceeding. (Doc. 12-1 at 46.) Petitioner fails to establish a credible claim of actual innocence. IV. Motion to Strike.
On December 23, 2022, Petitioner filed a Motion to Strike the Response to the Amended Petition. (Doc. 13.) Petitioner requests “this Court to grant a telephonic conference to seek a C.O.A. to return to the Arizona Court of Appeals to obtain equal justice and to ensure that the Constitution of the United States Due Process is followed.” (Doc. 13.)
To the extent that Petitioner requests a Certificate of Appealability, the Court will recommend the request be denied because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable. Petitioner has also not made a substantial showing of the denial of a constitutional right.
Liberally construing the motion as a request for a stay so that Petitioner may return to the Arizona Court of Appeals, the Court recommends the motion be denied. Petitioner's claim is untimely by more than a year. A district court is authorized to stay a habeas action in “limited circumstances” while a petitioner presents unexhausted claims to the state court. Rhines v. Weber, 544 U.S. 269, 273-75 (2005). Under Rhines, “a district court must stay a mixed petition only if: (1) the petitioner has ‘good cause' for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278).
A magistrate judge may typically grant a stay, but the denial of a request often disposes of a claim or defense by eliminating a petitioner's ability to return to the state court. See Bastidas v. Chappell, 791 F.3d 1155, 1164 (9th Cir. 2015) (concluding that a denial of a “motion to stay and abey was dispositive of the new claim he sought to add to his petition, and the magistrate judge therefore lacked authority to deny it.”).
Here, in Ground One, Petitioner asserts that his Fifth Amendment rights were violated during post-conviction proceedings when the trial court ruled against him regarding his alleged newly-discovered evidence. (Doc. 4 at 6.) In Ground Two, Petitioner argues he was denied the right to “obtain legal counsel from the Superior Court” for post-conviction relief proceedings. (Id. at 7.) Petitioner fails to explain or provide “good cause” for his failure to file a timely PCR petition. Petitioner also fails to demonstrate that either claim is potentially meritorious. When the trial court dismissed his PCR notice, the court found that Petitioner “failed to state a claim for which relief can be granted in an untimely Rule 33 proceeding.” (Doc. 12-1 at 46.) Petitioner provides no additional information in his habeas petition. The Court will recommend the Motion to Strike be denied.
V. 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 Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 4) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that the Motion to Strike (doc. 13) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal 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), 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.