Skaggs v. Arizona Department of Corrections, State of et al

Filing 14

REPORT AND RECOMMENDATION re 10 Amended Petition for Writ of Habeas Corpus : Recommending that the Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. Signed by Magistrate Judge Mark E Aspey on 04/14/09. (ESL, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA RICHARD SKAGGS, Petitioner, v. DIRECTOR OF THE ARIZONA DEPARTMENT OF CORRECTIONS, Respondent. _______________________________ ) ) ) ) ) ) ) ) ) ) )

CIV 08-01683 PHX FJM (MEA) REPORT AND RECOMMENDATION

TO THE HONORABLE FREDERICK J. MARTONE: On or about August 22, 2008, Petitioner filed a pro se petition seeking a writ of habeas corpus pursuant to 42 U.S.C. § 2254. 2009. Petitioner filed an amended petition on January 12, See Docket No. 10. Respondents filed an Answer to

Petition for Writ of Habeas Corpus ("Answer") (Docket No. 13) on March 10, 2009. Respondents contend the action for habeas relief may be denied and dismissed because Petitioner failed to file his action within the applicable statute of limitations. I Procedural History In 2004 a jury found Petitioner guilty of one count of theft of a credit card, one count of trafficking in stolen property and one count of theft of property. Answer, Exh. B. After a hearing, on February 18, 2004, Petitioner was sentenced

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to

a

total

of

46

years

imprisonment

pursuant

to

these

convictions. 1 Petitioner took a direct appeal of his convictions and sentences and was appointed counsel to represent him in his direct appeal. Id., Exh. A. In his direct appeal Petitioner asserted that the imposition of aggravated sentences violated his Sixth Amendment rights pursuant to the United States Supreme Court's opinion in Blakely v. Washington. Id., Exh. A. The Arizona Court of Appeals affirmed Petitioner's convictions and sentences in a decision issued July 28, 2005. Id., Exh. B. Respondents allow that Petitioner sought review of this decision by the Arizona Supreme Court, which denied review on March 9, 2006. Id. at 2 & n.2; Docket No. 10 at 3. Prior to the date that the Arizona Supreme Court denied review, on or about September 7, 2005, Petitioner initiated an action for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Id., Exh. D. Counsel was Id., appointed to represent Petitioner in his Rule 32 action. Exh. E. behalf.

Petitioner's counsel informed the state trial court Id., Exh. F. Petitioner was given several extensions of the time

that he could find no meritorious issue to raise on Petitioner's

allowed to file a pro per petition seeking state post-conviction relief pursuant to Rule 32. Id., Exh. G & Exh. H. On November 22, 2006, Petitioner's Rule 32 action was dismissed for his
Petitioner was later convicted of the first-degree murder of the victim of the theft crimes challenged in this habeas action. -21

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failure to file a petition specifying his claims for relief. Id., Exh. I. In his federal habeas action Petitioner asserts he is entitled to relief because his rights pursuant to the Sixth, Eighth, Ninth, and Fourteenth the Amendments petition were as violated. "virtually Respondents, characterizing

incomprehensible," argue that the petition was not timely filed. II Analysis The petition seeking a writ of habeas corpus is barred by the applicable statute of limitations found in the The Antiterrorism and Effective Death Penalty Act ("AEDPA").

AEDPA imposed a one-year statute of limitations on prisoners seeking federal habeas relief from their state convictions. See, e.g., Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002). 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." U.S.C. § 2244(d)(2)(2006 & Supp. 2008). 28 See also Artuz v.

Bennet, 531 U.S. 4, 8, 121 S. Ct. 361, 363-64 (2000); Harris v. Carter, 515 F.3d 1051, 1053 (9th Cir.), cert. denied, 129 S. Ct. 397 (2008). Using the most generous possible interpretation of the AEDPA, Petitioner's convictions and sentences became final on June 9, 2006, when the time expired for seeking certiorari by the United States Supreme Court in his direct appeal. See Tillema v. Long, 253 F.3d 494, 498 (9th Cir. 2001); Bowen v.
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Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 523 F.3d 850, 855 (8th Cir. 2008).

Compare Hemmerle v.

Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007); Riddle v. Kemna, At that time, Petitioner had an action for state post-conviction relief pending, which tolled the AEDPA's one-year statute of limitations. Again applying the most generous interpretation of the precedent of the federal courts, the statute of limitations began to run on December 22, 2006, when the time expired for Petitioner to seek review of the Arizona trial court's dismissal of his Rule 32 action. See Douglas v. Horn, 359 F.3d 257, 261 (3d Cir. 2004); Swartz v. Meyers, 204 F.3d 417, 420-24 (3d Cir. 2000) (holding that, because a judgment is not final until the time for seeking review expires, the word "pending" includes that time period, whether or not such review is sought, and collecting cases so holding). See also Lookingbill v. Cockrell, 293 F.3d 256, 266 (5th Cir. 2002) (collecting cases so holding). Accordingly, the one-year statute of limitations regarding Petitioner's federal habeas action expired on December 22, 2007. Petitioner did not file his federal habeas action until August 22, 2008, approximately eight months after the statute of limitations expired. Respondents argue that state prisoners are not entitled to equitable tolling of the AEDPA's statute of limitations. The Ninth Circuit Court of Appeals has recently stated that the Court should still determine whether a section 2254 petitioner is entitled to equitable tolling of the statute of limitations. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 & n.2 (9th
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Cir. 2009).

A petitioner seeking equitable tolling of the

AEDPA's statute of limitations 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, 515 F.3d at 1054-55 & n.4; Gaston v. Equitable tolling is rather than a Palmer, 417 F.3d 1030, 1034 (9th Cir. 2003), modified on other grounds by 447 F.3d 1165 (9th Cir. 2006). only appropriate when external 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. Petitioner has not established that he is entitled to
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tolling is warranted in his case.

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equitable tolling of the statute of limitations. Petitioner has not filed any reply to the response to his habeas petition. III Conclusion The federal habeas petition was not filed within the one-year statute of limitations and Petitioner has not provided a basis for equitable tolling of the statute of limitations. IT IS THEREFORE RECOMMENDED that Mr. Skaggs' 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
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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 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 14th day of April, 2009.

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