Norman v. Schriro et al

Filing 13

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus : Recommending that that Mr. Norman's Petition be denied and dismissed with prejudice. Signed by Magistrate Judge Mark E Aspey on 4/1/09. (KMG, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA DEREK ANDREW NORMAN, Petitioner, v. CHARLES L. RYAN and ARIZONA ATTORNEY GENERAL, Respondents. _______________________________ TO THE HONORABLE MARY H. MURGUIA: On or about August 23, 2008, Petitioner filed a pro se petition seeking a writ of habeas corpus pursuant to 42 U.S.C. § 2254. 2009. Respondents filed a Limited Answer to Petition for Writ Respondents argue Petitioner's habeas petition was not Additionally, Respondents contend Petitioner of Habeas Corpus ("Answer") (Docket No. 11) on February 26, timely filed. ) ) ) ) ) ) ) ) ) ) )

CIV 08-01592 PHX MHM (MEA) REPORT AND RECOMMENDATION

procedurally defaulted his federal habeas claims by failing to properly exhaust them in the state courts. I Procedural History In January of 2004 Petitioner was charged with one count of sexual conduct with a minor and two counts of molestation of a child (Docket No. CR2004-006012). Exh. A. See Answer,

In January of 2005 Petitioner was charged with one

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count of sexual exploitation of a minor, in Docket No. CR2005006127. Id., Exh. B. The later charge involved the possession Id., Exh. B. Id., Exh. C & Exh. D. of child pornography.

Pursuant to written plea agreements, Petitioner pled guilty in both cases on January 12, 2005. With regard to the charges stated in Docket No. CR2004-006012, Petitioner pled guilty to one count of attempted sexual conduct with a minor. sentence of 5 Id., Exh. D. years The written plea agreement noted and stated Petitioner's The plea the presumptive sentence of 10 years incarceration and a minimum incarceration sentence would fall within that range. One in CR2005-006127." Id., Exh. D. Id., Id., Exh. D.

agreement states it is "dependent upon a guilty plea to Count With regard to Docket No. CR2005-006127, Petitioner pled guilty to attempted sexual exploitation of a minor. Exh. C. The written plea agreement noted a minimum sentence of Id., Exh. C. be placed on The plea lifetime

10 years, a presumptive sentence of 17 years, and a maximum sentence of 24 years incarceration. agreement stated Petitioner was to

supervised probation "subsequent to any prison sentence imposed in CR2004-006012.... This plea is dependent upon a guilty plea to Count One in CR2004-006012." Id., Exh. C. The plea agreement also provided Petitioner would register as a sex offender and provide a DNA sample to law enforcement. Both plea agreements also waived Petitioner's right to appeal his convictions or the imposition of any sentence which was consistent with the written agreements.
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Id., Exh. C & Exh.

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D. The Maricopa County Superior Court reviewed the written plea agreements with Petitioner on January 12, 2005, and accepted his guilty pleas in both cases at that time. Id., Exh. E & Exh. F. On April 15, 2005, Petitioner was sentenced to a term of 7 years imprisonment pursuant to his conviction in CR2004006012. Id., Exh. G & Exh. H. At that time Petitioner was Id., Exh. G & Exh. H. sentenced to a consecutive term of lifetime probation pursuant to his conviction in CR2005-006127. Petitioner did not timely file his first appeal "as of right," i.e. an action for state post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, within ninety days of being sentenced. Petitioner did file a notice of postId., Exh. I & Exh. J. In that conviction relief with regard to his conviction and sentence in the 2005 case on July 20, 2007. Rule 32 action Petitioner asserted his sentence of lifetime probation constituted cruel and unusual punishment and also violated his right to equal protection. bargaining process. Petitioner also argued his right to due process of law was violated by the plea Id., Exh. I & Exh. J. Id., Exh. The state trial court dismissed Petitioner's Rule 32 action on August 15, 2007, noting it was not timely. K. The state trial court also concluded Petitioner's sentence

did not violate the United States' constitution's prohibition against cruel and unusual punishment and that Petitioner's rights to due process and equal protection were not violated. Id., Exh. K. Petitioner appealed this decision to the Arizona Court of Appeals, id., Exh. L, which denied review on April 23,
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2008.

Id., Exh. M.

Petitioner sought review of his claims by

the Arizona Supreme Court, which denied review on July 28, 2008. Id., Exh. O. In his federal habeas action Petitioner asserts he is entitled to relief because his sentence of lifetime probation constitutes cruel and unusual punishment in violation of the Fifth, Eighth, and Fourteenth Amendments. Petitioner also contends the sentence of lifetime probation violates his right to equal protection under the Fifth and Fourth Amendments. Additionally, Petitioner argues the imposition of lifetime probation rendered the plea bargaining process fundamentally unfair in violation of the due process protections of the Fifth and Fourteenth Amendments. II Analysis The petition is barred by the statute of limitations The petition seeking a writ of habeas corpus is barred by the applicable a statute of limitations of found in on the The state state Antiterrorism and Effective Death Penalty Act ("AEDPA"). AEDPA imposed one-year federal statute habeas limitations from prisoners Cir. 2002). seeking relief their

convictions.

See, e.g., Lott v. Mueller, 304 F.3d 918, 920 (9th The AEDPA provides that a petitioner is entitled to

tolling of the statute of limitations during the pendency of a "properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2)(2006 & Supp. 2008). See also Artuz v. Bennet, 531 U.S. 4, 8, 121 S. Ct. 361, 363-64 (2000);
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Harris v. Carter, 515 F.3d 1051, 1053 (9th Cir. 2008). Because Petitioner pled guilty and thereby waived his right to a direct appeal, Petitioner's convictions and sentences became final at the expiration of the time allowed for filing an action for state post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, i.e., on July 15, 2005. See Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (holding that, in Arizona, the statute of limitations began to run upon "the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or [upon] the expiration of the time for seeking such proceeding or review."). Accordingly, Petitioner had one year from July 15, 2005, i.e., until July 15, 2006, to seek federal habeas relief, not counting any time during which the statute of limitations was statutorily tolled by the pendency of any properly-filed state action for postconviction relief. (9th Cir. 2001). Petitioner did not file a timely Rule 32 action in the state courts which would have tolled the AEDPA's statute of limitations. Petitioner did file a notice of post-conviction relief with regard to his conviction and sentence in the 2005 case on July 20, 2007, more than one year after the statute of limitations with regard to a federal habeas action challenging the conviction and sentence expired. That state Rule 32 action See could not and did not restart the already-expired statute of limitations for filing Petitioner's federal habeas action. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003), citing
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See Bunney v. Mitchell, 262 F.3d 973, 974

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Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001); Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). A state-court petition that is filed after the expiration of the statute of limitations under the AEDPA does not revive the running of the limitations period. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001). Petitioner's untimely Rule 32 action also could not toll the statute of limitations because it was not a "properly filed" action for state post-conviction relief. See Pace v. DiGuglielmo, 544 U.S. 408, 413, 125 S. Ct. 1807, 1811-12 (2005) (holding that a state petition that is not filed within the state's required time limit is not "properly filed."). Equitable tolling of the statute of limitations Petitioner is not entitled to the equitable tolling of the statute of limitations. A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814-15 (2005). The Ninth Circuit Court of Appeals has determined equitable tolling of the filing deadline for a federal habeas petition is available only if extraordinary circumstances beyond the petitioner's control make it impossible to file a petition on time. See Harris v. Carter, 515 F.3d 1051, 1054-55 & n.4 (9th Cir.), cert. denied, 129 S. Ct. 397 (2008); Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2003), modified on other
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grounds by 447 F.3d 1165 (9th Cir. 2006). only appropriate when external

Equitable tolling is rather than a

forces,

petitioner's lack of diligence, account for the failure to file a timely claim. Cir. 1999). Equitable tolling is to be rarely granted. F.2d 1298, 1300 (11th Cir. 2000) (holding this See Jones remedy is v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006); Stead v. Head, 219 "typically applied sparingly"). The petitioner must establish See Miles v. Prunty, 187 F.3d 1104, 1107 (9th

a causal connection between the alleged roadblock to their timely filing of their federal habeas petition and the actual failure to file the petition on time. 2005). See Gaston, 417 F.3d at 1034; Lawrence v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. It is Petitioner's burden to establish that equitable Gaston, 417 F.3d at 1034. A petitioner's pro se status, ignorance of the law, and lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling because such circumstances are not "extraordinary." See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004). Additionally, a federal habeas petitioner seeking equitable tolling must also act with "reasonable" diligence "throughout the period he seeks to toll." 113 (2d Cir. 2000). 1999).
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tolling is warranted in his case.

Warren v. Garvin, 219 F.3d 111,

See also Roy v. Lampert, 465 F.3d 964, 969

(9th Cir. 2006); Jones v. Morton, 195 F.3d 153, 159 (3d Cir.

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Petitioner has not met his burden of establishing that there were extraordinary circumstances beyond his control which made it impossible for him to file a timely federal habeas petition, or that any state action was the "but for" cause for his failure to timely file his federal habeas action. petitioner has a strong burden to plead See Brown facts See v. Barrow, 512 F.3d 1304, 1306-07 (11th Cir. 2008) (holding the specific supporting their claim of extraordinary circumstances). that the petitioner was

also Pace, 544 U.S. at 418-19, 125 S. Ct. at 1815 (concluding not entitled to equitable tolling because he was not misled or confused about the exhaustion of his state remedies and filing his federal habeas petition). Petitioner has not met his burden of establishing that there were extraordinary circumstances beyond his control which made it impossible for him to file a timely federal habeas petition. Compare Sanchez v. Cambra, 137 Fed. App. 989, 990 (9th Cir. 2005). Additionally, Petitioner did not act with reasonable See diligence throughout the time period he seeks to toll.

Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (rejecting a claim to equitable tolling where the petitioner "provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims"). Compare Roy, 465 F.3d at 969-72. III Conclusion Petitioner did not file his federal habeas petition within the time specified by the AEDPA. Petitioner does not offer a basis for the equitable tolling of the statute of
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limitations applicable to his habeas petition. IT IS THEREFORE RECOMMENDED that Mr. Norman's Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. 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. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. the objections. Thereafter, the parties have ten (10) days within which to file a response to Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. 1121 (9th objections to See United States v. Reyna-Tapia, 328 F.3d 1114, 2003) any (en banc). or legal Failure to timely of file the factual determinations Cir.

Magistrate Judge will constitute a waiver of a party's right to
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appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge. DATED this 1st day of April, 2009.

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