Opinion
CV-21-08183-PCT-DJH (JZB)
07-01-2022
Bryan Lee Ramirez, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
Petitioner Bryan Lee Ramirez has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (Doc. 1.)
I. Summary of Conclusion.
Petitioner was convicted after pleading guilty to multiple counts of shoplifting and assault, including aggravated assault. Petitioner raises five grounds for relief. However, his Petition is untimely by over two and a half years and Petitioner is not entitled to equitable tolling. Accordingly, the Court recommends that the Petition be denied and dismissed with prejudice.
II. Background.
A. Conviction & Sentencing.
On April 22, 2016, Petitioner pleaded guilty to shoplifting and assault in Yavapai County Superior Court case no. CR-2015-01348 and shoplifting and three counts of aggravated assault on a peace officer in Yavapai County Superior Court case no. CR-2015-01159. (Doc. 12-1, Ex. C, at 9-15; see Doc. 12-1, Ex. A, at 3-4 (indictment in CR-2015-01348); Doc. 12-1, Ex. B, at 6-7 (indictment in CR-2015-01159).) Petitioner admitted he had a prior felony conviction (aggravated DUI) and two prior misdemeanor shoplifting convictions. (Doc. 12-1, Ex. C, at 10.) The court found Petitioner competent to enter into the plea agreement and that he did so knowingly, voluntarily, and intelligently. (Doc. 12-1, Ex. D, at 17.) On May 26, 2016, Petitioner was sentenced. (Doc. 12-1, Ex. E, at 19-23.) In CR-2015-01159, he was sentenced to 6 years in prison for the shoplifting conviction and 3 years in prison for each aggravated assault conviction, all of which were concurrent. (Id. at 20-21.) In CR-2015-01348, he was sentenced to 6 years in prison for the shoplifting conviction and 30 days in jail for the assault conviction (completed through time-served), which were consecutive to the sentences imposed in CR-2015-01159. (Id. at 21.) Petitioner received and signed a notice informing him of his right to seek post-conviction relief (“PCR”) and the procedures for doing so, including that he had to file a notice of PCR within 90 days of sentencing. (Doc. 12-1, Ex. F, at 25-26.)
B. Post-Conviction Review.
On January 23, 2017, Petitioner filed a notice of PCR. (Doc. 12-1, Ex. G, at 28-73.) Although the notice was untimely by several months, the PCR court accepted it as timely and appointed counsel to represent Petitioner. (Doc. 12-1, Ex. H, at 75-76.) Thereafter, counsel filed a notice of completion stating he was unable to find any colorable claim to raise. (Doc. 12-1, Ex. I, at 73-80.) The PCR court permitted counsel to withdraw and allowed Petitioner to proceed pro se. (Doc. 12-1, Ex. J, at 82.) On November 3, 2017, Petitioner filed a pro se PCR petition. (Doc. 12-1, Ex. N, at 91-98.) On November 20, 2017, the PCR court dismissed the petition for lack of “a material issue of fact or law” and “any basis for post-conviction relief.” (Doc. 12-1, Ex. O, at 100.) Petitioner did not seek review by the Arizona Court of Appeals.
Petitioner had also filed a PCR petition on August 7, 2017, which the PCR court, on motion from the State, rejected and removed from the docket for failure to comply with the applicable rules of procedure. (Doc. 12-1, Ex. M, at 89.) According to the State, this petition was “a rambling, incoherent recounting of [Petitioner's] personal recollection of his case” to which it could not “fashion an informed response.” (Doc. 12-1, Ex. L, at 86.)
III. Petition for Writ of Habeas Corpus.
Petitioner filed his habeas petition on July 30, 2021. (Doc. 1.) Petitioner raises five grounds for relief. As summarized by the Court in its September 23, 2021 Service Order:
Under the “mailbox rule,” a document filed by a pro se prisoner is deemed “filed” the day the prisoner delivered it to a prison official for mailing. Stewart v. Cate, 757 F.3d 929, 933 n.3 (9th Cir. 2014). Petitioner signed his Petition on July 30, 2021. (Doc. 1 at 23.) The Court presumes Petitioner delivered it to prison officials for mailing that same day. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (“We assume that [petitioner] turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.”).
In Ground One, Petitioner alleges that he was denied the effective assistance of counsel in post-conviction proceedings. In Ground Two, Petitioner alleges that the plea agreement was breached. In Ground Three, he alleges he was convicted based upon unlawful evidence. In Ground Four, he alleges he was unlawfully sentenced.(Doc. 6 at 2; see Doc. 1.) On December 15, 2021, Respondents filed a Limited Answer arguing the Petition should be denied and dismissed as untimely and because its claims are procedurally defaulted without excuse. (Doc. 12.) On January 3, 2022, the Court granted Petitioner's motion to add Ground Five in which he alleges “that he did not enter a valid plea because he did not sign and initial the plea agreement document.” (Doc. 13; see Doc. 11 (motion).) Petitioner did not file a reply.
The Court did not require Respondents to answer Ground Five. (See Doc. 13 at 2.)
In the January 3, 2022 Order, the Court informed Petitioner that he had until January 28, 2022 to file a reply to Respondents' answer. (Doc. 13 at 2.)
IV. Timeliness Under AEDPA.
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005); see 28 U.S.C. § 2244(d)(1). In most cases, the limitations period runs from the date “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); see Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). In a criminal case, “[t]he sentence is the judgment.” Burton v. Stewart, 549 U.S. 147, 156 (2007) (quotation marks and citation omitted). “‘[A] properly filed application for State post-conviction or other collateral review' tolls AEDPA's statute of limitations for the pendency of the state court proceedings.” Curiel v. Miller, 830 F.3d 864, 868 (9th Cir. 2016) (quoting 28 U.S.C. § 2244(d)(2)). To toll the statute, the application must have been “‘properly filed,'” meaning that it complied with “the applicable laws and rules governing filings,” including “time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). “When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). To qualify for equitable tolling, the petitioner must establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418.
The limitations period may also be triggered by other events not relevant here. See 28 U.S.C. §§ 2244(d)(1)(B) (state-created impediment to filing), (d)(1)(C) (newly recognized constitutional right), (d)(1)(D) (when the basis for a claim became apparent).
V. Discussion.
The Petition is untimely. Petitioner pleaded guilty, thereby waiving his right to a direct appeal. See Gelleh v. Shinn, No. CV-18-04944-PHX-NVW (ESW), 2020 WL 3130418, at *2 (D. Ariz. May 14, 2020) (“[U]nder Arizona law, a defendant in a noncapital case who pleads guilty waives his or her right to a direct appeal.” (citing A.R.S. § 13-4033.B)), adopted by 2020 WL 3129428 (D. Ariz. June 12, 2020). Petitioner could nonetheless obtain review of his conviction through an of-right proceeding under Ariz. R. Crim. P. 32, which “is a form of direct review” for purposes of 28 U.S.C. § 2244(d)(1)(A). Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007); see Ariz. R. Crim. P. 32.1 (“A defendant who pled guilty or no contest . . . may file an of-right notice of post-conviction relief.”). Petitioner did so. However, his conviction was ultimately upheld when the PCR court dismissed his PCR petition on November 20, 2017. Petitioner had 30 days from that date, i.e., until December 20, 2017, to seek review by the Arizona Court of Appeals. See Ariz. R. Crim. P. 32.9(c)(1)(A) (“No later than 30 days after the entry of the trial court's final decision on a petition or a motion for rehearing, an aggrieved party may petition the appropriate appellate court for review of the decision.”). He did not do so. Thus, his conviction became final on December 21, 2017. See Gonzalez, 565 U.S. at 134 (stating that if a petitioner does not appeal to the “State's highest court,” his judgment becomes final “when his time for seeking review with the State's highest court expired”). His habeas petition was due one year later, i.e., December 21, 2018. See 28 U.S.C. § 2244(d)(1)(A). The Petition, filed July 30, 2021, is therefore untimely by over two and a half years.
Effective January 1, 2020, Rule 32 was divided into two new rules based on whether a defendant was convicted at trial (new Rule 32) or by plea (new Rule 33). Ariz. Sup. Ct. Order No. R-19-0012. The new rules do not differ substantively from former Rule 32. See generally State v. Mendoza, 249 Ariz. 180, 182 n.1 (App. 2020). Any references to Rule 32 in this Report are to the pre-amendment version unless otherwise noted.
Petitioner does not qualify for equitable tolling. Petitioner acknowledges that his attorney notified him that counsel filed a PCR petition on his behalf. (Doc. 1 at 21.) Petitioner states that “I received a letter after he did so. From the Superior Court Div 3 Tina Ainley and she [denied it] This took over a year.” (Id.) Petitioner did not seek review of the dismissal because the prison paralegal “never advised” him to do so. (Doc. 1 at 22.) In a three-page attachment to the Petition, Petitioner states that he has “a habit of throwing my papers away. So around 2019 I requested my police reports again.” (Doc. 1 at 26.) He asserts he received the reports but noted they had changes from the original reports. (Id. at 26-27.) At a minimum, Petitioner had police reports and the ability to file a habeas petition in 2020, but he did not file the petition until July 30, 2021. (Doc. 1 at 23.) Petitioner proffers no explanation for his lack of diligence with respect to his federal habeas petition or pursuing his federal rights. As noted above, Petitioner had the memory and ability to file a PCR notice on January 23, 2017 (doc. 12-1, Ex. G, at 28) and a pro se PCR petition on November 3, 2017 (doc. 12-1, Ex. N, at 91). He does not assert that any “extraordinary circumstance” prevented him from filing a timely federal habeas petition.
Therefore, the Petition is untimely without adequate excuse and not entitled to any period of statutory or equitable tolling.
VI. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Proceedings, 28 U.S.C. § 2254. The district court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made that showing here. Therefore, the Court recommends that a certificate of appealability be denied.
VII. Conclusion.
Because the Petition is untimely and not entitled to any kind of tolling, IT IS RECOMMENDED that the Petition (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability 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 Fed. R. App. P. 4(a)(1) 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 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 14 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.