Harris v. Ryan et al

Filing 16

ORDER ADOPTING 14 Report and Recommendation of the Magistrate Judge. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) is DENIED; 15 Objections are overruled, and 1 Petition is DISMISSED WITH PREJUDICE, the Clerk shall enter judgme nt accordingly. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge James A Teilborg on 4/19/11. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Leonard Harris,

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Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV-09-2058-PHX-JAT (JRI)
ORDER

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Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. (Doc.

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1). On February 8, 2011, the Magistrate Judge to whom this case was assigned issued a

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Report and Recommendation (R&R) recommending that the Petition be dismissed because

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it is barred by the statute of limitations. (Doc. 14). On February 23, 2011, the Petitioner

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filed objections to the R&R. (Doc. 15).

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I. Legal Standard

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The Court “may accept, reject or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). It is “clear that

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the district judge must review the magistrate judge’s findings and recommendations de novo

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if objection is made, but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th Cir. 2003) (en banc) (emphasis in original). When an objection or objections are made,

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a de novo review is required of only “those portions of the report or specified proposed

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findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).

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Because Petitioner filed objections, the Court will review de novo the Magistrate Judge’s

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conclusion that the Petition in this case is barred by the statute of limitation.

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II. Statute of Limitations

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As the R&R correctly recounts, under the Anti-Terrorism and Effective Death Penalty

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Act of 1996 (AEDPA), the Petitioner had one year from the date his conviction became final

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to file a petition for a writ of habeas corpus with this Court. (Doc. 14, 4:10-15). The

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Petitioner’s conviction became final on May 14, 2004, thirty days after dismissal of his PCR

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proceeding at which time the Petitioner’s right to appeal expired. (Id., 5:7-12). Therefore,

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the Petitioner’s Petition in this Court was due by May 14, 2005. The Petition was filed on

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September 30, 2009. (Doc. 1). The Court adopts the Magistrate Judge’s finding calculating

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this date,1 as neither party objects. Therefore, the Petition is untimely unless Petitioner is

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entitled to tolling of the statute of limitations until September 30, 2009.

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A. Statutory Tolling

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By statute, the Petitioner is entitled to tolling during any period in which he had a

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“properly filed application for State post-conviction or other collateral review with respect

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to the pertinent judgment or claim . . . pending.” 28 U.S.C. § 2244(d)(2). As discussed

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above, statutory tolling ended on May 14, 2004, which is calculated as follows. The statute

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was tolled upon Petitioner’s filing a Notice of Post-Conviction Relief on June 26, 2003.

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(Doc. 14, 2:12-13). Subsequently, Petitioner failed to file a petition for post-conviction relief

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within the required time and Petitioner’s PCR proceeding was dismissed on April 14, 2004.

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(Id., 2: 13-20). Therefore, the tolling period ended at that time and the AEDPA limitation

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period began thirty days later, on May 14, 2004, when Petitioner’s time to appeal expired.

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(Id.). More than five years passed before Petitioner filed his Petition. (Id., 3:14-16). The

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Court adopts the Magistrate Judge’s findings on this issue, as neither party objects.

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Therefore, after considering statutory tolling, the Petition is still untimely.

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The Court’s adoption of the Magistrate Judge’s finding on this issue includes the
finding that Petitioner’s second Notice of Post-Conviction Relief was untimely and therefore
not properly filed, rendering it non-applicable to tolling considerations.
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B. Equitable Tolling

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Next, the Court considers equitable tolling. Holland v. Florida, 130 S.Ct. 2549, 2560

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(2010) (finding AEDPA’s statute of limitations subject to equitable tolling “in appropriate

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cases.”). The Magistrate Judge concluded that equitable tolling was not available. (Doc. 14,

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8:21-22). Petitioner objects to this conclusion.

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Petitioner is entitled to equitable tolling only by demonstrating: “‘(1) that he has been

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pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’

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and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace

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v. DiGuglielmo, 544 U.S. 408, 418 (2005)). To justify equitable tolling, the Petitioner bears

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the burden of proving that he has been pursuing his rights diligently. See id. The facts or

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arguments that Petitioner offers to show a diligent pursuit of his rights between May 14, 2004

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and September 30, 2009 consist only of a second Notice of Post-Conviction Relief, filed

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more than three years after his limitations period expired. (Doc. 14, 7:28-8:1-2).

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To show extraordinary circumstances, Petitioner implies that he lacked knowledge of

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his claim — ineffective assistance of counsel — until he filed his second Notice of Post-

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Conviction Relief. (Doc. 15, 6:12-18). Petitioner alleges that his defense was prejudiced by

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ineffective assistance of counsel because Petitioner’s attorney told him to expect a sentence

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of ten to thirteen years and that “lifetime probation was never mentioned to him as a possible

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sentence.” (Id., 8:25-9:2). Petitioner was, in fact, sentenced to nineteen years in prison and

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lifetime probation. (Doc. 14, 2:3-6). While Petitioner correctly points out that the statute of

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limitations on a claim of ineffective assistance of counsel begins to run upon discovery of

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the claim’s factual predicate (id., 6:13-18) (citing Hasan v. Galaza, 254 F.3d 1150, 1154 (9th

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Cir. 2001)), Petitioner’s reliance on this point of law misconstrues its applicability to the

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instant case.

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In Hasan, the court acknowledged that, while some facts supporting the claim were

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apparent at trial, much stronger support for the claim was discovered after the statute of

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limitations expired. Hasan, 254 F.3d at 1154-55. Here, in contrast, Petitioner knew that his

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actual sentence surpassed his expected sentence at the time the sentence was handed down.
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Petitioner fails to offer any new information that remained undiscovered until the time of his

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filing the second Notice of Post-Conviction Relief, which was dismissed as untimely.

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Petitioner also suggests that his claim is not barred by any limitations period because

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the issue of subject matter jurisdiction may be raised at any time and habeas corpus petitions

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fall within federal subject matter jurisdiction. (Doc. 15, 7:17-19). Petitioner is correct that

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this Court has subject matter jurisdiction over habeas petitions. And, this Court’s lack of

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subject matter jurisdiction may be raised at any time. Here, however, this Court has

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jurisdiction over the underlying subject matter of the case and therefore any applicable statute

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of limitations remains intact. Thus, the Court will apply the appropriate statute of limitations

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to this case.

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Because the Petitioner fails to meet his burden of proving that he has been pursuing

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his rights diligently and that extraordinary circumstances prevented him from timely filing

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his Petition, the Petitioner has failed to show that he is entitled to equitable tolling for the

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approximately five years necessary for his Petition to be timely.

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III. Conclusion

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Because the Petitioner is not entitled to equitable tolling, the last date that he could
have timely filed his Petition was May 14, 2005. This Petition is therefore untimely.

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Accordingly,

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 14)

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is ACCEPTED;

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IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
(Doc. 1) is DENIED; and

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IT IS FURTHER ORDERED that Objections (Doc. 15) are overruled, and the

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Petition (Doc. 1) is DISMISSED WITH PREJUDICE because it is barred by the statute

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of limitations and the Clerk of Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED

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because the dismissal of the Petition is justified by a plain procedural bar and jurists of

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reason would not find the procedural ruling debatable.

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DATED this 19th day of April, 2011.

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