Opinion
CV-21-00578-PHX-DLR (ESW)
07-28-2021
Curtis Quinerly, Petitioner, v. Attorney General of the State of Arizona, et al., Respondents.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
Pending before the Court is Curtis Quinerly'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
In 2016, a jury sitting in the Superior Court of Arizona in and for Maricopa County found Petitioner guilty of one count of misconduct involving weapons. (Bates No. 5).The trial court sentenced Petitioner to ten years in prison. (Bates No. 8). Petitioner filed a direct appeal. On May 17, 2018, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence. (Bates Nos. 73-77). The Arizona Supreme Court denied Petitioner's request for further review on September 25, 2018. (Bates No. 83).
Citations to the state court record submitted with Respondents' Limited Answer (Doc. 11) refer to the Bates-stamp numbers affixed to the lower right corner of each page of the record.
On June 5, 2018, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Bates Nos. 90-92). Following briefing and oral argument on Petitioner's PCR Petition, the trial court dismissed the proceeding on April 12, 2019. (Bates Nos. 129-30). Petitioner did not seek further review by the Arizona Court of Appeals.
On July 9, 2019, Petitioner initiated a second PCR proceeding. (Bates Nos. 132-44). On August 12, 2020, the trial court summarily dismissed the PCR Petition. (Bates No. 146). The Arizona Court of Appeals dismissed Petitioner's Petition for Review as it was untimely filed. (Bates No. 151).
On December 30, 2020, Petitioner filed a third PCR Notice. (Bates Nos. 156-58). On April 20, 2021, the trial court denied relief. (Bates Nos. 169-71). Petitioner then initiated a fourth PCR proceeding, which the trial court dismissed on April 28, 2021. (Bates Nos. 177-78). Petitioner filed a fifth PCR Petition on June 3, 2021. (Bates No. 180-84).
The Superior Court of Arizona docket reflects that this matter is still pending as of the date of this Report and Recommendation. As explained below, this does not affect the resolution of the Petition.
On April 5, 2021, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief. The Court required Respondents to answer the Petition. (Doc. 6). In their June 9, 2021 Limited Answer (Doc. 11), Respondents argue that the Petition is untimely. Petitioner has not filed a Reply in support of the Petition, and the deadline has expired.
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 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;
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.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).
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).
The Arizona Court of Appeals affirmed Petitioner's conviction and sentence on May 17, 2018. (Bates Nos. 73-77). The Arizona Supreme Court denied further review on September 25, 2018. (Bates No. 83). Petitioner had ninety days from September 25, 2018 (until December 24, 2018) to file a petition for writ of certiorari in the United States Supreme Court, but Petitioner did not do so. Sup. Ct. R. 13. Petitioner's conviction and sentence thus became final on December 24, 2018. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (“[T]he period of ‘direct review' in 28 U.S.C. § 2244(d)(1)(A) 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.”). Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a habeas petition expired on December 24, 2019, rendering this proceeding untimely. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which Patterson's petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' the one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 . . . .”).
1. Statutory Tolling
Statutory tolling does not apply to collateral review petitions that are not “properly filed.” 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance comply 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. Hence, 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).
If the collateral review petition was “properly filed, ” then the Court must determine the dates it was “pending.” In Arizona, a PCR petition becomes “pending” as soon as the notice of PCR is filed. Isley v. Ariz. Dep't of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004) (“The language and structure of the Arizona postconviction rules demonstrate that the proceedings begin with the filing of the Notice.”). It remains “pending” until it “has achieved final resolution through the State's post-conviction procedures.” Carey v. Saffold, 536 U.S. 214, 220 (2002). This includes “[t]he time between (1) a lower state court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing Carey, 536 U.S. 214).
Here, on June 5, 2018, before Petitioner's conviction became final, Petitioner filed his PCR Notice. (Bates Nos. 90-92). The limitations period therefore was immediately tolled when Petitioner's conviction became final on December 24, 2018. On April 12, 2019, the trial court dismissed the PCR proceeding. (Bates Nos. 129-30). Because Petitioner did not petition the Arizona Court of Appeals for further review, AEDPA's limitations period commenced on April 13, 2019. See Hemmerle, 495 F.3d at 1074 (9th Cir. 2007) (properly filed PCR notice tolled AEDPA's statute of limitations until “summarily dismissed” by trial court, where prisoner did not petition for review of dismissal); Gold v. Hennessy, CR 04-1252-PHX-JAT, 2006 WL 1516009, at *4 (D. Ariz. May 30, 2006) (“It follows that if a petition is not timely filed, then the interval is not tolled. . . . Thus, an appeal that is never filed cannot be considered timely; Petitioner cannot reap the benefit of AEDPA's tolling mechanism without actually filing her petition for review of the PCR denial.”); Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir. 2004) (rejecting a habeas petitioner's argument that statutory tolling applied during the period in time in which he could have filed a petition for certiorari review in the U.S. Supreme Court regarding state court's denial of post-conviction relief; stating that “[b]ecause [petitioner] never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never ‘properly filed.'”) (quoting Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000)). As discussed below, the undersigned does not find that additional statutory tolling applies. Petitioner thus had until April 12, 2020 to file a federal habeas petition.
On July 9, 2019, Petitioner initiated his second PCR proceeding. (Bates Nos. 132-44). On August 12, 2020, the trial court summarily dismissed the PCR Petition, explaining that Petitioner failed to establish a colorable claim for relief. (Bates No. 146). The trial court's minute entry did not specifically find that the PCR Petition was untimely. However, “if the state court fails to decide the issue, this court must do so for itself.” Baker v. Ryan, No. CIV09-315TUCFRZGEE, 2010 WL 1316238, at *3 (D. Ariz. Apr. 1, 2010) (citing Evans, 546 U.S. at 198 (“[T]he Circuit must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness.”)).
Under Arizona Rule of Criminal Procedure 32.4, a defendant's PCR Notice must be filed within ninety days after the oral pronouncement of sentence or within thirty days after the issuance of the mandate in the direct appeal, whichever is later, unless the defendant is raising one of the claims enumerated in Rule 32.1(d)-(h). The Arizona Court of Appeals issued its mandate in Petitioner's direct appeal on October 19, 2018. (Bates No. 83). Thus, Petitioner's second PCR proceeding filed on July 9, 2019 is untimely. In addition, the PCR Petition presented only ineffective assistance of counsel claims. Ineffective assistance of counsel is not one of the claims enumerated in Rule 32.1(d)-(h) that may be presented in an untimely PCR Petition. The Arizona Supreme Court has explained that in general, when “ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.” State v. Spreitz, 39 P.3d 525, 526 (2002); State v. Mata, 916 P.2d 1035, 1050 (1996) (rejecting approach that would permit “a never-ending tunnel” of post-conviction proceedings in which “defendants could endlessly litigate effectiveness of counsel by claiming that their latest version . . . was not presented on earlier petitions due to counsel's inadequate representation”). The undersigned finds that Petitioner's second PCR Petition was untimely and not “properly filed” for purposes of 28 U.S.C. § 2244(d)(2). See Pace, 544 U.S. at 413-14. Respondents correctly assert (Doc. 11 at 6) that Petitioner's second PCR proceeding did not toll the limitations period.
Once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Because the limitations period had expired in April 2020, Petitioner's subsequent PCR proceedings initiated in December 2020, April 2021, and June 2021 had no statutory tolling effect. This federal habeas proceeding, filed on April 5, 2021, is untimely unless equitable tolling applies.
2. Equitable Tolling is Unavailable
Regarding equitable tolling, Petitioner has the 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. A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., Johnson v. United States, 544 U.S. 295, 311 (2005). In addition, a petitioner's miscalculation of when the limitations period expired does not constitute an “extraordinary circumstance” warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Alexander v. Schriro, 312 Fed.Appx. 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, this federal habeas proceeding is untimely.
B. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the Untimeliness of this Proceeding
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 conviction. 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 Fed.Appx. 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.'”).
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.