Opinion
No. CV-18-08034-PCT-JAT (ESW)
02-28-2019
Jerry Louis Nunez, Petitioner, v. Charles Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Jerry Louis Nunez'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 with prejudice the Petition (Doc. 1) as untimely filed.
I. BACKGROUND
In February 2010, Petitioner entered into a plea agreement in which Petitioner agreed to (i) plead guilty to failing to register as a sex offender, a class 4 felony and (ii) admit to violating his probation by failing to register as a sex offender. (Bates Nos. 23-25). Petitioner was on probation for the offense of luring a minor for sexual exploitation, a class 3 felony dangerous crime against children. (Bates No. 35). The trial court accepted Petitioner's plea agreement and sentenced Petitioner. (Bates No. 34, 44-48). However, that judgment was subsequently vacated and the parties entered into an amended plea agreement. (Bates Nos. 144, 148, 180-88). The trial court accepted the amended plea agreement and sentenced Petitioner to a ten-year prison term and placed Petitioner on lifetime probation. (Bates Nos. 181-85).
Upon receiving extensions of time, Petitioner filed a Notice of Post-Conviction Relief ("PCR") on August 18, 2011. (Bates Nos. 193, 197, 198-201). The trial court appointed PCR counsel. (Bates No. 203). Counsel timely filed the PCR Petition on April 6, 2012. (Bates Nos. 217-20). On September 5, 2012, pursuant to the "Motion to Withdraw/Dismiss Pro Se Petition for Post-Conviction Relief" filed by Petitioner's counsel, the trial court dismissed the PCR proceeding. (Bates Nos. 226, 229).
On September 26, 2012, Petitioner filed a "Notice: Petition for Review of Rule 32 and Request Leave of Court to File Untimely Petition for Review," which the trial court denied. (Bates Nos. 230-32, 233). On September 13, 2016, Petitioner filed another PCR Notice and Petition that was summarily dismissed. (Bates Nos. 263-79, 280).
On February 9, 2018, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief.
The Petition was docketed by the Clerk of Court on February 20, 2018. The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on February 9, 2018. (Doc. 1 at 11). Pursuant to the prison mailbox rule, the undersigned has used February 9, 2018 as the Petition's filing date. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) ("A petition is consideredto 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;
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;28 U.S.C. § 2244(d)(1); see also See 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).
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); see also Ferreira v. Secretary, Dept. of Corrections, 494 F.3d 1286 (11th Cir. 2007) (holding that for purposes of AEDPA's statute of limitations, a petitioner's resentencing judgment is the relevant one, even if the habeas petition is directed only to earlier conviction).
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.
Pursuant to Arizona Rule of Criminal Procedure Rule 32.4, the deadline for filing a PCR notice in an of-right PCR proceeding is "ninety days after the entry of judgment and sentence . . . ." Here, ninety days from the May 13, 2011 judgment is August 11, 2011. Pursuant to extensions of time, Petitioner filed a PCR notice on August 18, 2011. (Bates Nos. 193, 197, 198-201). The trial court dismissed the PCR proceeding on September 5, 2012 after Petitioner withdrew his PCR petition. (Bates Nos. 226, 229). Therefore, Petitioner's judgment of conviction became final on September 5, 2012 and the limitations period commenced on September 6, 2012. Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a habeas petition expired on September 5, 2013, rendering the February 9, 2018 Petition untimely. 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).
1. Statutory Tolling is Unavailable
A statutory tolling analysis under AEDPA begins by determining whether the collateral review petition was "properly filed." This is because statutory tolling does not apply to collateral review petitions that are not "properly filed." Pace, 544 U.S. at 417; 28 U.S.C. § 2244(d)(2). A collateral review petition is "properly filed" when its delivery and acceptance are in compliance 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. 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).
On September 26, 2012, Petitioner filed in state court a "Notice: Petition for Review of Rule 32 and Request Leave of Court to File Untimely Petition for Review." (Bates Nos. 230-32). The trial court denied Petitioner's request to file an untimely PCR Petition. (Bates No. 233). Accordingly, Petitioner's September 26, 2012 state court filing had no statutory tolling effect.
On September 13, 2016, Petitioner filed another PCR Notice and Petition. (Bates Nos. 263-79). The statute of limitations, however, had expired on September 5, 2013. 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). Moreover, the trial court summarily dismissed the PCR Notice and Petition on the ground that Petitioner's claim for relief could have been raised in a previous PCR proceeding. (Bates No. 280). This is an implicit holding that the PCR Notice and Petition did not fit within one of the exceptions provided in Arizona Rule of Criminal Procedure 32.2(b) that allow an untimely PCR petition to proceed. See Evans, 546 U.S. at 198 (on habeas review, "the Circuit must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness"). Therefore, the September 13, 2016 PCR Notice and Petition was not properly filed and had no tolling effect even if the statute of limitations had not yet expired at the time of filing.
For the above reasons, Petitioner is not entitled to statutory tolling.
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 petitionerj 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, because the limitations period was not statutorily or equitably tolled, the Petition (Doc. 1) 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)).
To the extent Petitioner argues that the miscarriage of justice exception applies in this case, Petitioner does not proffer any new evidence to support actual innocence. See Schlup, 513 U.S. at 324 ("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."). The undersigned does not find that the record and pleadings in this case contain "evidence of innocence so strong that [the Court] cannot have confidence" in the outcome of the proceedings. McQuiggin, 133 S.Ct. at 1936 (quoting Schlup, 513 U.S. at 316). 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.
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 untimely 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 (Doc. 1) 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 28th day of February, 2019.
/s/_________
Eileen S. Willett
United States Magistrate Judge