Opinion
CV- 21-00784-PHX-MTL (JZB)
05-27-2022
Robert Lee Yazzie, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable John Z. Boyle, United States Magistrate Judge
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE.
Petitioner Robert Lee Yazzie has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
On October 31, 2012, Petitioner's first post-conviction review proceedings were dismissed by the trial court. Petitioner did not seek review of that ruling. The habeas Petition was due by December 6, 2013 but was not mailed until April 30, 2021. 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.
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court's opinion should not be afforded the presumption of correctness).
In November 2006, Victim, who was under fifteen years of age, was watching television when Yazzie told her to go to the bedroom. Yazzie followed Victim to the bedroom, locked the door, yelled at Victim for going outside with her friends, and then removed Victim's clothes. Yazzie took his clothes off as well. While on the bed, Yazzie “started touching” Victim's “private place” and, “[a]s he touched [her],” Yazzie “put his finger inside [Victim].' After an adult found Victim and Yazzie in the bedroom and victim told the adult what happened, Victim was taken to a hospital and police were contacted.
Yazzie was charged with two counts of molestation of a child (Counts 1 and 4), class two felonies and dangerous crimes against children; one count of sexual conduct with a minor (Count 2), a class two felony and dangerous crime against children; and one count of indecent exposure (Count3), a class six felony. The case proceeded to trial. At the conclusion of the State's case, the trial court granted a directed verdict of acquittal on one count of child molestation (Count 4). The jury convicted Yazzie of molestation of a child (Count l) and sexual conduct with a minor (Count 2) and acquitted him of indecent exposure (Count 3.)(Doc. 8-1, Ex. G, at 114.)
On or around January 14, 2009, a jury convicted Petitioner of Counts One and Two. (Doc. 8-1, Ex. B, at 11.) On February 20, 2009, the court sentenced Petitioner to consecutive terms of imprisonment totaling 37 years. (Doc. 8-1, Ex. C, at 15-16.)
B. First Direct Appeal.
On March 9, 2009, Petitioner filed a notice of appeal. (Doc. 8-1, Ex. D, at 21.) Petitioner's counsel filed a brief alleging a violation of the Double Jeopardy Clause. (Doc. 8-1, Ex. F, at 27.) On June 24, 2010, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 8-1, Ex. G, at 112.) On August 10, 2010, the mandate issued. (Doc. 8-1, Ex. G, at 110.)
C. First Post-Conviction Relief Proceedings.
On July 13, 2010, Petitioner filed a notice of post-conviction relief (“PCR”). (Doc. 8-1, Ex. H, at 122.) On November 14, 2011, Petitioner's counsel filed a notice there were no colorable claims to raise on review. (Doc. 8-1, Ex. J, at 130.) On October 31, 2012, the PCR court dismissed the proceeding. (Doc. 8-1, Ex. O, at 162.) Petitioner did not seek review of that ruling. (See generally Doc. 8-1, Ex. B, 8-13 (Record of Criminal Case History).)
D. Second Post-Conviction Relief Proceedings.
On July 30, 2014, Petitioner filed a second notice of post-conviction relief. (Doc. 8-1, Ex. P, at 164.) On August 11, 2014, the court dismissed the matter as successive and untimely because Petitioner failed “to state a claim for which relief can be granted in an untimely Rule 32 proceeding.” (Doc. 8-1, Ex. Q, at 169.)
E. Third Post-Conviction Proceedings.
On March 11, 2019, Petitioner filed a third notice of post-conviction relief. (Doc. 8-1, Ex. V, at 184.) Petitioner claimed “newly discovered and material facts” existed that warranted Rule 32 relief. (Doc. 8-1, Ex. W, at 190.) Petitioner alleged DNA and physical evidence was not disclosed by the State. (Id.) The court found that Petitioner failed “to explain when he acquired the evidence, why it is material, what reasonably diligent efforts Defendant and his counsel undertook to obtain it over the past 12 years, and why it could not have been obtained and presented earlier.” (Id.) On April 8, 2019, the court dismissed the matter based upon Petitioner's failure to state a claim for which could be granted. (Id.)
F. Fourth Post-Conviction Proceedings.
On June 7, 2019, Petitioner filed a fourth notice of post-conviction relief. (Doc. 8-1, Ex. Z, at 198.) On August 13, 2019, the court denied relief. (Doc. 8-2, Ex. FF, at 28.)
On January 24, 2020, Petitioner filed for review in the Arizona Court of Appeals. (Doc. 8-2, Ex. KK, at 42.) On May 7, 2020, the court granted review but denied relief. (Doc. 8-2, Ex. MM, at 81.)
III. Petitioner's Habeas Petition.
On April 30, 2021, Petitioner mailed the Petition. (Doc. 1 at 27.) The Court filed the Petition on May 3, 2021. (Doc. 1.) The Court summarized Petitioner's claims as follows:
In Ground One, Petitioner asserts he received ineffective assistance of trial, appellate, and post-conviction counsel because his counsel did not fully
investigate Petitioner's case, in violation of the Fourth, Fifth, and Sixth Amendments. In Ground Two, Petitioner contends he received ineffective assistance of trial, appellate, and post-conviction counsel because his counsel did not investigate where the victim was first examined by a professional physician and overlooked potentially exculpatory evidence, in violation of the Fourth and Sixth Amendments. In Ground Three, Petitioner claims the results of the rape kit were not disclosed during his pretrial, appellate, and post-conviction proceedings. In Ground Four, Petitioner asserts that evidence collected from the victim's clothing was not disclosed or investigated by his trial, appellate, and post-conviction counsel, in violation of the Fifth and Sixth Amendments. In Ground Five, Petitioner contends his trial, appellate, and post-conviction counsel did not investigate or obtain evidence collected during the police investigation of the crime scene. In Ground Six, Petitioner claims he was arrested and detained for 28 days without appearing in court, in violation of the Fourth, Fifth, and Sixth Amendments, that his trial counsel failed to investigate this issue, and that his appellate counsel failed to investigate it or “take [it] into consideration,” even though he mentioned it to her.(Doc. 5 at 1-2.)
On June 15, 2021, Respondents filed a Limited Answer. (Doc. 8.) On January 10, 2022, Petitioner filed a Reply. (Doc. 20.)
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 31, 2012, the superior court dismissed Petitioner's first PCR proceeding. (Doc. 8-1, Ex. O, at 162.) Petitioner did not seek review in the Arizona Court of Appeals. Therefore, his conviction became final 35 days later, on December 5, 2012. See former Ariz. R. Crim. P. 32.9(c) (providing that a petition for review must be filed within 30 days); former Ariz. R. Crim. P. 1.3(a) (five calendar days added for mailing); Ariz. R. Crim. P. 1.3 (stating that “whenever a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and such service is allowed and made by mail, 5 days shall be added to the prescribed period.”); State v. Savage, 117 Ariz. 535 (1978) (applying Rule 1.3(a) to deadline for petition for review from denial of motion for rehearing in PCR proceeding). Therefore, the one-year limitations period commenced on December 6, 2012, 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)).
The Petition was due by December 6, 2013, absent statutory tolling. Petitioner mailed the Petition on April 30, 2021.
B. Statutory Tolling.
Petitioner is not entitled to statutory tolling. Petitioner's limitations period expired in December 2013, a year after he failed to seek PCR review in the Arizona Court of Appeals. Petitioner's subsequent PCR proceedings initiated in July 2014, March 2019, and June 2019 had no statutory tolling effect. Once the federal statute of limitations has run, a collateral state action cannot revive it. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding “that section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed.”).
Liberally construed, Petitioner asserts the Petition is timely because his third and fourth PCR proceedings concerned newly-discovered evidence and DNA testing requests. He appears to argue the one-year limitation period restarted when those rulings were final. (Doc. 1 at 13.) Petitioner cites to 28 U.S.C. § 2244(d)(1)(A) (the one-year deadline runs “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.”). But Petitioner does not dispute that his judgment was final when he failed to seek PCR review in the Arizona Court of Appeals in his first PCR proceedings, so § 2244(d)(1)(A) does not support his argument.
The one-year statute of limitations may also begin on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Accrual under Section 2244(d)(1)(D) begins “when the [petitioner] knows (or through due diligence could discover) the important facts, not when the [petitioner] recognizes their legal significance.” Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001).
Petitioner's claim appears to be related to allegations he raised in PCR proceedings. The trial court summarized Petitioner's claims in his third PCR proceeding:
According to Defendant, he has discovered the following evidence, not previously disclosed by the State: the Victim's medical records, the results of a DNA test, crime scene evidence collected from a master bedroom, other evidence collected from Victim for DNA testing, and the result of the finger nail swab test for Victim. (Notice at 3-4) He fails to explain when he acquired the evidence, why it is material, what reasonably diligent efforts Defendant and his counsel undertook to obtain it over the past 12 years, and why it could not have been obtained and presented earlier. Nor can the Court discern whether the evidence was available prior to trial.(Doc. 8-1, Ex. W, at 190.) The court dismissed Petitioner's third PCR petition because he failed “to state a claim for which relief can be granted.” (Id.) In his fourth PCR proceeding, Petitioner alleged “essential evidence” and “biological samples that were collected from the alleged victim for DNA testing were never disclosed” by the prosecution. (Doc. 8-1, Ex. Z, at 198.) The trial court dismissed his claims:
According to Defendant: “No physical evidence was ever produce[d] to the Court by the State during pre-trial and at trial.” Following his direct appeal, Defendant learned that some evidence was not in his case file. These items included: the victim's medical records from John C. Lincoln Hospital, a crime scene diagram, articles of clothing, and fingernail and the vaginal swabs. The police report, however, informed Defendant and his counsel where the victim had received treatment. Because the order and mandate in Defendant's appeal issued in 2010, the evidence or lack of evidence is not even new. He also fails to explain why the facts are material, other than making the conclusory assertion that “the outcome of the verdict would have been different.” Nor does Defendant adequately explain why the facts could not have been obtained and presented earlier.(Doc. 8-1, Ex. AA, at 208.)
Petitioner fails to demonstrate diligence regarding these claims. Petitioner alleges that “physical evidence” was never disclosed by the State. (Doc. 1 at 24.) But Petitioner appears to concede that he found this evidence between 2012 and 2014. Petitioner states in his Petition:
After Petitioner's first unprepared petition was dismissed, he found some evidence that was never disclosed by the State, which the Petitioner would have used to his defense. The evidence that he requested for were crime scene diagram, collection of evidence from the crime scene, medical records from John. C. Lincoln Hospital, findings of DNA and Rape kit, and victim's clothing.(Doc. 1 at 4.)
Petitioner is well beyond the one-year deadline to file a habeas petition based upon “newly discovered evidence” he possessed in 2014. See Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (“The ‘due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered.”).
Finally, Petitioner argues that in “January 2020, there was a changed law of DNA testing that allowed him to request additional DNA testing.” (Doc. 1 at 4.) But Petitioner could have requested DNA testing in his first PCR proceedings under A.R.S.§ 13-4240(A), which was enacted into law July 18, 2000. Petitioner's “due diligence” clock began no later than 2014 and expired one year later. See e.g. Leon v. Ryan, 2018 WL 7570378, at *2 (D. Ariz. 2018) (recommending denial of untimely petition where petitioner waited four years to request DNA testing). This federal habeas proceeding, initiated on April 30, 2021, is untimely unless equitable tolling applies.
The statute states:
At any time, a person who was convicted of and sentenced for a felony offense and who meets the requirements of this section may request the forensic deoxyribonucleic acid testing of any evidence that is in the possession or control of the court or the state, that is related to the investigation or prosecution that resulted in the judgment of conviction, and that may contain biological evidence.A.R.S. § 13-4240(A) (2000) (added by Laws 2000, Ch. 373, § 1.). This statute became effective July 18, 2000. See S.B. 1353, 44th Leg., 2nd Reg. Sess. (AZ 2000).
C. Equitable Tolling.
“A petitioner who seeks equitable tolling AEDPA's 1-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. After Petitioner's first PCR proceedings concluded in 2012, Petitioner filed three subsequent PCR motions before filing a habeas petition in this Court. As noted above, Petitioner appears to acknowledge he was aware of undisclosed evidence as early as 2014, but he waited until April 30, 2021 to mail the habeas petition. (Doc. 1 at 27.) Petitioner raised claims regarding newly-discovered evidence in his third PCR proceeding, but the trial court found that Petitioner failed “to explain when he acquired the evidence, why it is material, what reasonably diligent efforts Defendant and his counsel undertook to obtain it over the past 12 years, and why it could not have been obtained and presented earlier.” (Doc 8-1, Ex. W, at 190.) On April 8, 2019, the court dismissed that PCR matter based upon Petitioner's failure to state a claim for which could be granted. (Id.) Petitioner waited for more than two years after that ruling to filing his habeas petition. Petitioner has not demonstrated extraordinary circumstances prevented him from filing a timely habeas petition.
On March 9, 2022, Petitioner filed a motion to expand the record to “include additional material” to “fully substantiate a finding for equitable tolling[.]” (Doc. 23 at 1.) Therein, Petitioner seeks to submit records related to a “conflict of interest” of counsel issue (id. at 9) and documents related to his state-court proceedings. Petitioner argues that his post-conviction counsel (Sharmila Roy) “endeavored to abandon Petitioner at every opportunity[.]” (Id. at 6.) He further asserts counsel failed to investigate his DNA claims and failed to properly correspond with him. (Id. at 6-7.) Petitioner also argues PCR counsel had a conflict of interest based upon her appointment and payment by the state. (Id. at 9.) Petitioner's supplemental arguments are not persuasive.
The Court notes that on November 14, 2011, Petitioner's PCR counsel sent Petitioner a letter thoroughly discussing issues relevant to Petitioner's case. (Doc. 23-2 at 13-16.) In the letter, Petitioner's counsel advised him of the right to file a pro-se petition, which he subsequently filed. (Id. at 15.) Petitioner did not raise a claim that his PCR counsel abandoned him in his four post-conviction actions.
The record shows that Petitioner knew of any potential claim that he was abandoned by PCR counsel at least nine years before filing his Petition. Petitioner filed a bar complaint against Ms. Roy that was closed by the State Bar of Arizona on February 1, 2012. (Doc. 23-3 at 7.) The record also shows that Petitioner's PCR counsel sent Petitioner multiple communications discussing issues relevant to Petitioner's case. (See Doc. 23-2 at 13-16 (November 14, 2011 letter discussing issues relevant to Petitioner's case); Doc. 23-3 at 89 (February 2, 2012 letter addressing Petitioner's concerns over not receiving the entire trial file).) Petitioner did not raise a claim that his PCR counsel abandoned him in any of his four post-conviction actions. Petitioner is not entitled to equitable tolling based upon the claims and documents presented in his motions to expand the record.
Petitioner cites to Franklin v. Madden, 844 Fed. App'x. 991, 993 (9th Cir. 2021) (noting the one-year statute of limitations for a federal habeas petition runs from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”). Petitioner's citation to Franklin is unavailing. In Franklin, the Court found that representations by an innocence project attorney repeatedly advising petitioner “that it would be filing a habeas petition on [his] behalf” was sufficient to invoke equitable tolling. Franklin, 844 Fed. App'x. at 993. The Court noted that when Petitioner discovered those assertions were incorrect, petitioner hired “new counsel and submit[ed] state and federal habeas petitions quickly.” (Id.) Here, Petitioner was aware of concerns regarding his counsel in 2012 when he filed a bar complaint. Petitioner waited nine years to file the instant habeas petition.
D. Actual Innocence.
Petitioner argues in his Reply that he is entitled to “equitable tolling derived of actual innocence[.]” (Doc. 20 at 19.) 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 v. Delo, 513 U.S. 298, 327 (1995). In the Reply, Petitioner argues that new reliable evidence exists because “county officials” concealed a vaginal swab of the victim by labeling it as a buccal swab. (Doc. 20 at 8-9.) Petitioner does not argue that the swab was tested or how the swab proves that Petitioner is actually innocent of the offense. Petitioner argues there may be evidence of his innocence, but he does not present evidence that he is actually innocent. See 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. Motions to Expand the Record.
Petitioner has filed two Motions to Expand the Record. (Docs. 23, 25.) On March 9, 2022, Petitioner filed his first Motion to Expand the Record, seeking to include “additional material relevant to the merits of the petition.” (Doc. 23 at 1.) Therein, Petitioner asserts these materials are relevant to the “untimeliness” of the petition and his request for equitable tolling. (Id. at 5.) On March 24, 2022, Respondents filed a Response requesting the Court deny the Motion to Expand the Record because the documents submitted are either cumulative or irrelevant to the issue of equitable tolling. (Doc. 24.)
On April 21, 2022, Petitioner filed his second “Supplemental” Motion to Expand the Record, seeking to “further develop his habeas claims in answer to Response to Petitioner's [first] Motion to Expand the Record.” (Doc. 25.) Therein, Petitioner asserts the supplemental materials are relevant “to address and surmount reprised Respondents counterclaim with documentation and citation from record that vitiates their untimeliness claim once more.” (Id. at 9.) On May 5, 2022, Respondents filed a response opposing the second Motion to Expand the Record because the documents are not relevant and do not support equitable tolling for the Petition. (Doc. 26.)
The Court concludes the documents provided by Petitioner are relevant to his claims and will grant the motions to expand the record. (Docs. 23, 25.) The Court has considered Petitioner's additional documentation in forming the conclusions set forth in this Report.
V. Evidentiary Hearing.
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).
VI. Conclusion.
Based on the above analysis, the Court finds that the Petition is untimely.
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 ORDERED the Motions to Expand the Record (docs. 23, 25) are GRANTED.
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.