Farnsworth v. Ryan et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS. the 14 Report and Recommendation is adopted in full. The petition (Doc. 1) is denied and dismissed with prejudice. IT IS ORDERED a Certificate of Appealability and leave to proceed in forma pauperis on ap peal is denied because the denial of the motion is justified by a plain procedural bar and jurists of reason would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Chief Judge Roslyn O Silver on 11/23/11. (ESL)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Albert Stephen Farnsworth,
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-10-361-PHX-ROS (JRI)
ORDER
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Pending before the Court is Magistrate Judge Irwin’s Report and Recommendation
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(“R&R”). (Doc. 14). The R&R recommends the Petition for Writ of Habeas Corpus (the
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“Petition”) (Doc. 1) be dismissed with prejudice. Petitioner filed objections to the R&R.
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(Doc. 15). For the reasons below, the Court will adopt the R&R.
BACKGROUND
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Petitioner was indicted in Maricopa County Superior Court on four counts of sexual
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conduct with a minor, one count of sexual abuse, and one count of kidnapping. (Doc. 10, Ex.
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A). Petitioner plead guilty to two counts of child molestation and two counts of attempted
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sexual conduct with a minor. On September 19, 2003, Petitioner was sentenced. Petitioner
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did not file a direct appeal.
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On November 26, 2008, Petitioner filed a Notice of Post-Conviction Relief (Doc. 10,
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Ex. G).1 On December 16, 2008, the Notice of Post-Conviction Relief was dismissed
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because it was untimely and failed to raise a claim qualifying for late presentation. (Doc. 10,
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Ex. I). Petitioner’s Petition for Review was summarily denied. (Doc. 1, Ex. 4).
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On February 22, 2010, Petitioner filed the pending Petition. (Doc. 1). Petitioner
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alleges violations of the due process, double jeopardy, and equal protection provisions of the
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Fifth and Fourteenth Amendments. Petitioner also alleges a due process violation and
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violations of his Sixth Amendment right to a jury trial, confrontation, protection against
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illegally enhanced sentences, and assistance of counsel. Petitioner argues his claims should
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not be barred as untimely because he never intentionally waived his right to file a habeas
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petition, his rights to habeas review cannot be suspended, and he had no notice of the habeas
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statute of limitations.
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On May 28, 2010, Respondents filed an Answer (Doc. 10), arguing the Petition is
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untimely and Petitioner’s claims are procedurally defaulted or barred. On July 30, 2010,
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Petitioner filed a Reply, arguing: he is not subject to the statute of limitations because he was
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not given notice of the statute of limitations; the court lacked subject matter jurisdiction; the
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AEDPA’s2 statute of limitations cannot apply because he is not a terrorist and not subject to
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the death penalty; the AEDPA is an unconstitutional suspension of the writ of habeas corpus;
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and the State cannot rely on the limitations period because it did not appeal his “illegal”
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sentence. (Doc. 13).
ANALYSIS
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A.
Standard of Review
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A district court “must make a de novo determination of those portions of the report
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. . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the
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findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). A court
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Petitioner titled his Notice of Post-Conviction Relief an “Amended Notice,” but
Petitioner did not file a prior notice or petition.
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Antiterrorism and Effective Death Penalty Act of 1996.
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need review only those portions objected to by a party, meaning a court can adopt without
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further review all unobjected to portions. See United States v. Reyna-Tapia, 328 F.3d 1114,
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1121 (9th Cir. 2003).
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B.
The R&R is Adopted in Full
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1.
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The Petition is untimely because it was filed in February 2010, over five years after
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the statute of limitations expired on December 18, 2004. The AEDPA has a one-year statute
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of limitations for applications for writ of habeas corpus filed under 28 U.S.C. § 2254
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challenging convictions and sentences from state court. 28 U.S.C. § 2254(d). Petitions filed
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Timeliness
after the statute of limitations are barred and must be dismissed. Id.
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The statute of limitations begins on “the date on which the judgment became final by
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conclusion of direct review or the expiration of the time for seeking such review.” 28
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U.S.C. § 2244(d)(1)(A). Petitioner did not file a direct appeal. “Arizona’s Rule 32 of-right
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proceeding for plea-convicted defendants is a form of direct review within the meaning of
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28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 7171 (9th Cir. 2007). “To
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bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to the
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Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of
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his or her intent to file a Petition for Post-Conviction Review.” Id. at 715 (citing Ariz. R.
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Crim. P. 32.4(a)).
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Petitioner was a plea-convicted defendant. He was sentenced September 19, 2003.
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Thus, he had until December 18, 2003 to file his Post-Conviction Relief of-right. Petitioner’s
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conviction became final on December 18, 2003. Therefore, absent any tolling, Petitioner’s
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one year began to run December 18, 2003 and expired December 18, 2004. Petitioner did
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not file for Post-Conviction Relief until November 26, 2008. (Doc. 10, Ex. H), nearly five
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years late.
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a.
Statutory Tolling
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The AEDPA allows for tolling the statute of limitations when a “properly filed
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application for State post-conviction or other collateral relief with respect to the pertinent
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judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). However, once the habeas statute
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has run, a post-conviction or collateral relief filing does not reset the statute of limitations.
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Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Petitioner’s one year statute of
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limitations had long expired before Petitioner filed for Post-Conviction Relief in November
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2008.3 The Petition was not filed until February 22, 2010, well after the statute of limitations
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expired on December 18, 2004.
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Equitable Tolling
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“Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available
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in our circuit, but only when ‘extraordinary circumstances beyond a prisoner’s control make
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it impossible to file a petition on time’ and ‘the extraordinary circumstances were the cause
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of his untimeliness.’” Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003). To establish
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equitable tolling, Petitioner must show (1) he has been diligently pursuing his rights, and (2)
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“some extraordinary circumstances stood in his way. The petitioner must additionally show
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that the extraordinary circumstances were the cause of his untimeliness, and that the
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extraordinary circumstances ma[de] it impossible to file a petition on time.” Ramirez v.
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Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotations omitted). “[T]he threshold
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necessary to trigger equitable tolling [under AEDPA] is very high . . . .” Miranda v. Castro,
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292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation omitted).
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Petitioner has not established grounds for equitable tolling. Petitioner states he had
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no notice of the AEDPA’s statute of limitations. But “it is well established that ignorance
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of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt
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filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (cited with approval by
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Raspberry v. Garcia, 448 F.3d 1150, 1154) (9th Cir. 2006)).
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2.
Petitioner’s Challenges to the AEDPA Statute of Limitations
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Further, only “properly filed” post-conviction applications may toll the statute of
limitations. An untimely petition is not “properly filed.” Pace v. DiGuglielmo, 544 U.S. 408
(2005). As such, Petitioner’s untimely application for post-conviction relief did not toll the
statute of limitations.
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a.
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Subject Matter Jurisdiction
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Petitioner argues his claims assert a lack of subject matter jurisdiction, and therefore
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the statute of limitations does not apply. While a claim for lack of subject matter jurisdiction
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can generally be asserted at any time while a matter is pending, Petitioner’s criminal case is
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no longer pending and there is no authority extending this principal to collateral
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proceedings.4
b.
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AEDPA Name
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Petitioner argues the AEDPA statute of limitations does not apply to him because he
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is not a terrorist or subject to the death penalty. The title of a statute does not limit the plain
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meaning of the text. E.g., Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29
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(1947). The text of the AEDPA does not limit the statute of limitations to terrorism or death
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penalty cases.
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Suspension Clause
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Petitioner argues the statute of limitations is an unconstitutional suspension of the writ
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of habeas corpus. The Ninth Circuit has rejected this argument. Ferguson v. Palmateer, 321
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F.3d 820, 823 (9th Cir. 2003) (“[T]he one-year limitations period is just that: a limitation, not
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a suspension.”).
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d.
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Lack of Waiver
Petitioner argues he did not knowingly, intelligently and voluntarily waive his right
to file a habeas petition. The statute of limitations does not require a waiver.
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3.
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Because the Court will dismiss the Petition on other grounds, the Court does not reach
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Procedural Default/Bar
Respondent’s argument that Petitioner’s claims are procedurally defaulted.
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Accordingly,
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IT IS ORDERED the Report and Recommendation (Doc. 14) is ADOPTED IN
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Further, Petitioner alleges lack of subject matter jurisdiction because the sentence
was “illegal.” That would not strip the state court of subject matter jurisdiction in the
prosecution.
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FULL. The petition (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE.
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IT IS ORDERED a Certificate of Appealability and leave to proceed in forma
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pauperis on appeal is denied because the denial of the motion is justified by a plain
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procedural bar and jurists of reason would not find the ruling debatable, and because
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Petitioner has not made a substantial showing of the denial of a constitutional right.
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DATED this 23rd day of November, 2011.
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