Opinion
CV 18-1492-PHX-JGZ (JR)
05-08-2020
Eddie Parker, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner Eddie Parker, filed a pro se Petition for a Writ of Habeas Corpus (Doc. 1) pursuant to 28 U.S.C. § 2254 on May 15, 2018. In accordance with the Rules of Practice of the United States District Court for the District of Arizona and 28 U.S.C. § 636(b)(1), this matter was referred to the Magistrate Judge for report and recommendation. Parker raises four grounds for relief. Respondents filed an Answer (Doc. 11) contending that the Petition is untimely and that most of his claims are procedurally defaulted or non-cognizable on federal review. Respondents alternatively contend that Parker's one exhausted claim fails on the merits. As explained below, the Magistrate Judge finds that the Petition is untimely and that Parker is not entitled to equitable tolling. The Magistrate Judge therefore recommends that the District Court, after an independent review of the record, dismiss the Petition with prejudice.
The Petition indicates it was signed in February 2018, but does not reflect the specific date. The Clerk of Court docketed the Petition on May 15, 2018.
I. FACTUAL AND PROCEDURAL BACKGROUND
The presentence investigation report summarized the factual background of Parker's conviction as follows:
On March 2, 2010, officers responded to St. Luke's Hospital in reference to a molestation that occurred on February 28, 2010. It was reported that [A.P.], age fourteen, told a nurse that on February 28, 2010, the defendant, a nurse in the unit where [A.P.] was a patient, entered her room and kissed [A.P.] on the mouth, touched her breasts, felt her vaginal area, and digitally penetrated her. It was reported two weeks prior, the defendant's telephone number was found in the possession of another young patient.Ex. A, p. 1. Parker was charged by direct complaint and entered into a plea agreement on April 8, 2010, in which he pled guilty to one count of sexual abuse and two counts of attempted child molestation. Exs. B, C. On May 10, 2010, pursuant to the terms of the plea agreement, the trial court sentenced Parker to 15 years in prison with a concurrent lifetime sex offender probation tail. Ex. D.
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The night of February 29, 2010, the defendant entered and exited [A.P.'s] room approximately ten times as he thought he heard noises and did not want to get caught in her room. [A.P.] reported when the defendant was in her room, he kissed her lips several times, touched her breast over her clothing twice, touched her bare breast, put his hand down her pants and rubbed her pubic area, digitally penetrated her, and sucked her breast. During the molestation, the defendant asked her if it felt good. He then asked her to go into another room for sexual intercourse, but she told him she did not want him to get fired. When he returned the final time, she pretended to be sleeping. Although [A.P] stated she was under the influence of her medication, she felt like it was her fault as she let the defendant molest her, even though the defendant tried to convince her it was alright.
All exhibit references are to the exhibits attached to the Respondents' Answer to Petition for Writ of Habeas Corpus (Doc. 12).
Because Parker pled guilty, he waived his right to direct appeal and could only seek review by filing a petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. See A.R.S. § 13-4033(B); Ariz. R. Crim. P. 17.2(a)(5). On August 20, 2010, Parker filed a motion to extend the time for filing his notice of post-conviction relief. Ex. E. Although the State could find no record of the trial court granting Parker's motion to extend, the court later accepted Parker's notice which was filed on September 16, 2010. Ex. F. The trial court appointed counsel and ordered that the record be prepared and that the post-conviction review petition be filed no later than 60 days after the filing of the transcripts of Parker's change of plea and sentencing proceedings. Ex. G. After several extensions, Parker's counsel filed a notice of completion of post-conviction review indicating that he was unable to find any claims for relief to raise and requesting a 45-day extension to allow Parker to file a pro per petition for post-conviction relief. Ex. H. The trial court granted the extension request. Ex. I. On October 12, 2011, the trial court dismissed Parker's post-conviction relief proceeding because no petition had been filed. Ex. J.
On November 3, 2015, Parker field a motion for clarification of sentence. Ex. K. The trial court responded by reiterating Parker's sentence. Ex. L.
On December 28, 2016, Parker filed a petition for post-conviction relief. Ex. M. In that petition, Parker alleged that: (1) the indictment was multiplicitous and violated the double jeopardy clause because the crime was a one-time incident; (2) the indictment was unconstitutional and illegal because it violated A.R.S. § 13-116 and 18 U.S.C. § 3731 and is not untimely based on the Supreme Court's decision in Montgomery v. Louisiana, 136 S.Ct. 718 (2016); (3) the State illegally stacked the same offense to attain multiple sentences in violation of A.R.S. § 13-604; and (4) counsel was ineffective for not raising any issues during the sentencing phase. Ex. M
On January 23, 2017, the trial court dismissed Parker's second Rule 32 proceeding as untimely and procedurally barred. Ex. N. The court further noted that, assuming it could consider the untimely submission, Parker's claims were "belied by the record." Ex. N, p. 2. Specifically, the court held that, contrary to Parker's assertions, he was sentenced for three different crimes committed on the same date and not as a "repeat offender;" (2) in accordance with his plea agreement, Parker's sentence was enhanced due to his position of trust and harm to the victim and not based on any prior convictions; (3) that Montgomery v. Louisiana, 136 S.Ct. 718 (2016), prohibited mandatory life sentence without parole for juvenile offenders and that Parker did not state that he qualified for relief as a juvenile offender. Ex. N. The trial court denied Parker's motion for reconsideration on February 27, 2017. Ex. O.
On April 3, 2017, Parker field a petition for review with the Arizona Court of Appeals. Ex. P. In that petition, Parker claimed that: (1) his sentence violated the Eighth Amendment; (2) the State's case violated the double jeopardy clause; (3) the State and the Department of Corrections has hindered pro se litigant's legal access; (4) the State's indictment was "multiplicitous" on numerous counts; the county attorney ignored A.R.S. § 13-116 and did not comply with the Blockburger test; (6) he received multiple punishments for the same offense; and (7) counsel was ineffective for allowing Parker to give up all his constitutional rights at sentencing and for failing to object to the illegal sentence. Ex. P.
On December 12, 2017, the court of appeals granted review but denied relief, stating that Parker had failed to establish an abuse of discretion in the trial court's decision to summarily dismiss his petition for post-conviction relief. Ex. Q. The mandate issued on January 26, 2018. Ex. R. Parker filed a motion for reconsideration on February 7, 2018. Ex. S. The court of appeals denied that motion. Ex. T. No petition with the Arizona Supreme Court was filed and another mandate was issued on May 10, 2018. Ex. U.
Parker commenced this action with the Petition now before the Court which was signed sometime in February 2018 and filed on May 15, 2018. (Doc. 1). In his Petition, Parker presents four questions for review: (1) Was Petitioner afforded effective assistance of counsel?; (2) Was there double counting in Petitioner's case?; (3) Did the State invoke double punishment?; and (4) Was the State's case multiplicitous indictment the cause of Petitioner receiving multiple sentences? Petition (Doc. 1), p. 3.
II. STATUTE OF LIMITATIONS
A. Timeliness
The threshold issue is whether Parker's Petition is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides for a one-year statute of limitations to file apetition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Petitions filed beyond the one-year limitations period must be dismissed. Id. The statute provides in pertinent part that:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from 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 applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005).
An "of-right" petitioner for post-conviction review under Rule 32 of the Arizona Rules of Criminal Procedure, which is available to criminal defendants who plead guilty even if they waive their appeal rights, 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 (9th Cir. 2007). Additionally, as noted above, "[t]he time during which a properly filed application for State post-conviction . . . review . . . is pending shall not be counted toward any period of limitation . . . ." 28 U.S.C. § 2244(d)(2); see also Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). An application for State post-conviction relief is properly filed "when its delivery and acceptance are in compliance with the applicable law and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). If the application is rejected by the State court as untimely, it cannot be construed as "properly filed" and the petitioner is not entitled to statutory tolling. Pace v. Guglielmo, 544 U.S. 408, 418 (2005).
Parker was sentenced on May 10, 2010. Ex. D. On August 20, 2010, Parker filed a motion to extend the time for filing his notice of post-conviction relief. Ex. E. Although the State could find no record of the trial court granting Parker's motion to extend, the court later accepted Parker's notice which was filed on September 16, 2010. Ex. F. The trial court appointed counsel and ordered that the record be prepared and that the post-conviction review petition be filed no later than 60 days after the filing of the transcripts of Parker's change of plea and sentencing proceedings. Ex. G. After several extensions, Parker's counsel filed a notice of completion of post-conviction review indicating that he was unable to find any claims for relief to raise and requesting a 45-day extension to allow Parker to file a pro per petition for post-conviction relief. Ex. H. The trial court granted the extension request. Ex. I. On October 12, 2011, the trial court dismissed Parker's post-conviction relief proceeding because no petition had been filed. Ex. J.
Respondents argue that because Parker did not file a petition for post-conviction relief, no "properly filed" application for post-conviction relief was pending and, therefore, the statute of limitations began running on August 9, 2010, the date of the expiration of the 90-day time period for seeking post-conviction relief under Rule 32. Limited Answer (Doc. 11), p. 7. However, in Arizona, an application for post-conviction review is pending once a notice of post-conviction relief is filed, even though the petition is not filed until later. Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004); Ariz. R. Crim. P. 32.4(a) ("A defendant starts a Rule 32 proceeding by filing a Notice Requesting Post-Conviction Relief."); see also Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007) (fining that Arizona petitioner's notice of post-conviction relief, "which under Isley was 'properly filed,' tolled the AEDPA one-year limitations period at least until it was summarily dismissed."). Because Parker properly filed his notice of post-conviction relief, his post-conviction relief application remained "properly filed" until the proceeding was dismissed on October 12, 2011. Parker then had one-year, until October 12, 2012, to file his habeas petition, but he failed to do so.
Instead, 4 years, 2 months, and 17 days later, on December 28, 2016, Parker filed a second petition for post-conviction relief. Ex. M. However, because the AEDPA statute of limitations had long since expired, the filing of the second petition was irrelevant to the calculation of the limitations period for Parker's habeas petition. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); see also Larsen v. Soto, 742 F.3d 1083, 1088 (9th Cir. 2013) (recognizing Ferguson rule but applying actual innocence exception). The instant petition was filed on May 15, 2018, which is 5 years, 7 months, and 4 days after the expiration of the AEDPA limitations period. Alternatively, the petition reflects that it was signed by Parker sometime in February of 2018. Even with the application of the mailbox rule, and assuming the petition was placed in the prison mailing system on the first day of February 2018, the petition is nevertheless tardy by 5 years, 3 months, and 21 days. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing rule that a prisoner's court document is deemed filed on the date the prisoner delivered the document to prison officials for mailing).
B. Equitable Tolling
AEDPA's one-year statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). A petitioner is entitled to equitable tolling of the limitations period "only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). "The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule." Id. Petitioner bears the burden of showing "extraordinary circumstances were the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (internal quotation and citation omitted).
Here, Parker does not address tolling in the petition or in his reply. Without some description of any challenges he may have encountered, the Court is unable to embark on any evaluation of the legally-relevant barriers to filing that may have resulted. See Lott v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002) (noting that equitable tolling evaluations turns on "an examination of detailed facts"). Parker has not established any entitlement to equitable tolling of the AEDPA limitations period.
C. Actual Innocence
In McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), the Supreme Court held that actual innocence, "if proved," serves as an exception to the AEDPA statute of limitations. Id. at 1928. However, the Court noted that tenable claims of actual innocence are rare and require a petitioner to "show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Parker has not argued that actual innocence excuses his untimely filing of the petition.
III. 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 § 2254 Proceedings. A COA should issue as to those claims on which a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The standard is satisfied if "jurists of reason could disagree with the district court's resolution of [the] constitutional claims" or "conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
A certificate of appealability should be denied because Parker has not established any basis to excuse the untimely filing of his petition. There are no close questions and there is no basis to encourage further proceedings at this time.
IV. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, dismiss Parker's Petition for Writ of Habeas Corpus (Doc. 1) as time-barred without excuse, direct the Clerk of Court to enter judgment in favor of Respondents and against Petitioner, and deny a certificate of appealability.
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.
However, the parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number: CV 18-1492-PHX-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Dated this 8th day of May, 2020.
/s/_________
Honorable Jacqueline M. Rateau
United States Magistrate Judge