Opinion
No. CV-20-01802-PHX-SRB (ESW)
03-12-2021
Jacob Anthony Torres, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Jacob Anthony Torres' ("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 December 2014, Petitioner pled guilty in the Superior Court of Arizona to the following crimes: (i) First Degree Premeditated Murder, a class 1 dangerous felony; (ii) Theft, a class 6 felony, with one historical prior felony conviction for which Petitioner was on probation at the time of the offense; and (iii) Misconduct Involving weapons, a class 4 dangerous felony, for which Petitioner was on probation at the time of the offense. (Bates Nos. 3-6). The trial court accepted the plea. (Bates Nos. 7-9). On January 16, 2015, the trial court sentenced Petitioner to natural life in prison. (Bates Nos. 38-41).
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 April 3, 2015, Petitioner filed an of-right Notice of Post-Conviction Relief ("PCR"). (Bates Nos. 60-63). The trial court appointed counsel. (Bates Nos. 64-66). The trial court subsequently granted counsel's motion to withdraw as Petitioner desired to represent himself. (Bates No. 70-71). Petitioner filed a pro se PCR Petition. (Bates Nos. 72-80). Following briefing, on January 21, 2016, the trial court dismissed the PCR proceeding. (Bates No. 98).
Although the minute entry's caption contains the date "01/15/2016," the top right of the trial court's minute entry states that the minute entry was electronically filed on January 21, 2016. (Bates No. 98). See Matter of Maricopa County Juvenile Action No . JS-8441 , 849 P.2d 1371, 1372 (Ariz. 1992) (explaining 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.").
On February 8, 2016, Petitioner sought further review by the Arizona Court of Appeals. (Bates No. 99-104). On July 6, 2017, the Arizona Court of Appeals granted review, but denied relief. (Bates Nos. 106-08). Petitioner requested further review by the Arizona Supreme Court, which was denied on January 4, 2018. (Bates No. 117).
In April 2018, Petitioner initiated a second PCR proceeding. (Bates Nos. 118-35). The trial court dismissed the proceeding as untimely. (Bates Nos. 136-38). Petitioner initiated additional PCR proceedings in June 2018, October 2018, January 2019, May 2019, July 2019, and October 2019. (Bates Nos. 139-56, 160-82, 186-204, 208-230, 234-60, 264-90). The trial court dismissed these proceedings as untimely. (Bates Nos. 157-59, 183-85, 205-07, 231-33, 261-63, 291-92). On March 31, 2020, Petitioner filed a "Motion to Set Aside Sentence." (Bates Nos. 293-308). The trial court construed the filing as a PCR Notice and dismissed it as untimely. (Bates Nos. 310-11).
Petitioner filed a Petition for Review in the Arizona Court of Appeals in March 2020. (Bates Nos. 312-17). On June 30, 2020, The Arizona Court of Appeals granted review, but denied relief. (Bates Nos. 318-19). Petitioner sought further review by the Arizona Supreme Court, which was denied as Petitioner filed a non-compliant Petition for Review. (Bates No. 325; 330-31).
On September 15, 2020, Petitioner initiated this federal habeas proceeding. (Doc. 1). Pursuant to the Court's Screening Order (Doc. 6), Respondents filed a Limited Answer (Doc. 11) on December 28, 2020. Petitioner filed a Reply (Doc. 12) on January 27, 2021.
The Petition was docketed by the Clerk of Court on September 16, 2020. (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on September 15, 2020. (Id. at 15). Pursuant to the prison mailbox rule, the undersigned has used September 15, 2020 as the Petition's filing date. See 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;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).
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.
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 16, 2015. (Bates Nos. 38-41). On January 21, 2016, the trial court filed its order denying Petitioner's of-right PCR Petition. (Bates No. 98). On July 6, 2017, the Arizona Court of Appeals granted Petitioner's Petition for Review, but denied relief. (Bates Nos. 106-08). The Arizona Supreme Court denied further review on January 4, 2018. (Bates No. 117). Petitioner had ninety days from January 4, 2018 (until April 4, 2018) to file a petition for writ of certiorari in the United States Supreme Court, but Petitioner did not do so. See Sup. Ct. R. 13. Petitioner's convictions and sentences thus became final on April 4, 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."). Therefore, the one-year statute of limitations began running on April 5, 2018. 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 4, 2019, rendering the Petition filed in September 2020 untimely.
1. Statutory Tolling is Unavailable
Statutory tolling does not apply to collateral review petitions that are not "properly filed." Pace v. DiGuiglielmo, 544 U.S. 408 (2005); 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, in April 2018, June 2018, October 2018, January 2019, May 2019, July 2019, October 2019, and March 2020, Petitioner initiated additional PCR proceedings. (Bates Nos. 118-35, 139-56, 160-82, 186-204, 208-230, 234-60, 264-90, 293-308). The trial court dismissed these proceedings as untimely. (Bates Nos. 136-38, 157-59, 183-85, 205-07, 231-33, 261-63, 291-92, 310-11). The Arizona Court of Appeals denied relief, and the Arizona Supreme Court denied Petitioner's request for further review. (Bates Nos. 318-19, 325, 330-31).
"When a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of [AEDPA's statute of limitations]." Pace, 544 U.S. at 414; see also Rudin v. Myles, 766 F.3d 1161, 1171 (9th Cir. 2014) (holding that a federal habeas petitioner was not entitled to statutory tolling where the Nevada Supreme Court determined that the petitioner's PCR petition was untimely). The undersigned finds that Petitioner's untimely PCR proceedings had no statutory tolling effect on AEDPA's limitations period. Pace, 544 U.S. at 417. The Petition (Doc. 1) 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 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 v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (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)).
Here, 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."). 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.'"). McQuiggin, 133 S.Ct. at 1936 (quoting Schlup, 513U.S. at 316).
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); U.S. 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 12th day of February, 2021.
/s/_________
Honorable Eileen S. Willett
United States Magistrate Judge