Washington v. Ryan et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge Irwin's 10 Report and Recommendation is accepted; Petitioner Washington's Petition for Writ of Habeas Corpus 1 is denied; the Clerk shall terminate this action; in the event Petitioner files an appeal, the Court declines to issue a Certificate of Appealability because reasonable jurists would not find the Court's procedural ruling debatable. Signed by Judge G Murray Snow on 4/3/12. (REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Harry Leon Washington, Plaintiff, 10 11 vs. 12 Charles L. Ryan, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-10-1680-PHX-GMS ORDER 15 16 17 Pending before this Court is a Petition for Writ of Habeas Corpus filed by Petitioner 18 Harry Leon Washington. (Doc. 1). Magistrate Judge Jay R. Irwin issued a Report and 19 Recommendation (“R & R”) recommending that the Court deny the petition with prejudice. 20 Petitioner has objected to the R & R. (Docs. 10–11). For the following reasons, the Court 21 accepts the R & R, and denies the petition. 22 BACKGROUND 23 Petitioner was convicted of second degree murder on July 8, 1991 in Maricopa County 24 Superior Court. (Doc. 1 at 1; Doc. 8, Ex. A at 2). At that time of trial Petitioner’s defense 25 attorney was Edward J. Susse. (Doc. 1 at 6, Doc. 11 at 2). On August 16, 1991 Petitioner was 26 sentenced to life with the possibility of release after serving 25 years. (Doc. 8, Ex. A at 3). 27 Petitioner filed an appeal with the Arizona Court of Appeals on March 4, 1992 which was 28 denied on March 16, 1993. (Id., Exs. A, O). On June 24, 1993, Petitioner requested review 1 from the Arizona Supreme Court. (Id., Ex. Q). That request was denied on October 22, 1993. 2 (Id., Ex. B). Petitioner did not seek review by the United States Supreme Court. (Doc. 1 at 3 3; Doc. 10 at 2:11). 4 I. Post-Conviction Relief Proceedings 5 Petitioner filed four petitions for post-conviction relief (“PCR”). Petitioner filed his 6 first PCR petition on August 13, 1992 and later withdrew that petition. (Doc. 8, Exs. C–D). 7 On March 21, 1997, Petitioner filed a second petition for PCR which was dismissed in June 8 of 1997. (Id., Exs. H & M at 2). Because an exact date for that dismissal is not provided, it 9 is deemed as dismissed on June 30, 1997. (Doc. 10 at 2:23–25). 10 In March 1998, Petitioner’s family retained Joseph Collins to represent him. (Doc. 1 11 at 5; Doc. 11 at 1). Petitioner filed a third PCR petition on July 27, 1998. (Doc. 8, Ex. N). It 12 was dismissed on November 6, 1998. (Id., Ex. J). On June 9, 2000, Mr. Collins filed 13 Petitioner’s fourth PCR petition which was dismissed on August 20, 2001. (Doc. 8, Exs. 14 K–L). 15 II. Present Proceeding 16 Petitioner states that he contacted the Arizona Justice Project (“Project”) in December 17 2000 and the Project took his case in 2001. (Doc. 11 at 1; Doc. 1 at 11). The Project 18 ultimately closed review of the case on July 15, 2010, stating there was “no new evidence 19 or information with which to approach a court and seek to have [his] conviction overturned 20 and a new trial granted.” (Id., Ex. 1). 21 On August 9, 2010, Petitioner filed this petition for writ of habeas corpus pursuant to 22 28 U.S.C. § 2254. (Doc. 1 at 1). He asserts the following grounds for relief: ineffective 23 assistance of trial counsel in failing to investigate allegations against him and in negotiating 24 the plea agreement, improper jury instructions, and denial of his right to have a jury find 25 “elements of aggrevation [sic] later to be used against defendant at sentencing. ” (Id. at 6–9). 26 On October 3, 2011, Magistrate Judge Irwin issued an R & R recommending that the Petition 27 be dismissed with prejudice as untimely. (Doc. 10). On October 18, 2011, Petitioner filed 28 objections to the R & R. (Doc. 11). -2- 1 2 DISCUSSION I. Legal Standard 3 The writ of habeas corpus affords relief to persons in custody in violation of the 4 Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Such petitions are 5 governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 6 U.S.C. § 2244. 7 A. 8 Under AEDPA, petitions for habeas corpus are governed by a one-year statute of 9 limitations. See Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (AEDPA “establishes a 10 1-year statute of limitations for filing a federal habeas corpus petition”) (citing 28 U.S.C. § 11 2244(d)(1)). The limitation period begins to run when the state conviction becomes 12 final—either “upon ‘the conclusion of direct review or the expiration of the time for seeking 13 such review.’” White v. Klitzkie, 281 F.3d 920, 923 (9th Cir. 2002) (quoting 28 U.S.C. § 14 2244(d)(1)(A)). Statute of Limitations under AEDPA 15 “State prisoners . . . whose convictions became final prior to AEDPA’s enactment [on 16 April 24, 1996], had a one-year grace period in which to file their petitions.” Patterson v. 17 Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). Under Rule 6(a), “that one-year grace period 18 . . . ended on April 24, 1997 in the absence of statutory tolling.” Id. at 1246; Fed. R. Civ. 19 Pro. 6(a). 20 1. Statutory Tolling of the Limitations Period 21 The one-year limitation period is statutorily tolled during any time in which a 22 “properly filed” state petition for post-conviction relief is “pending” before the state court, 23 and “must be tolled for the entire period in which a petitioner is appropriately pursuing and 24 exhausting his state remedies.” 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1004 25 (9th Cir. 1999). The period is not tolled between the final decision of a state appeal and 26 subsequent challenges “because there is no case ‘pending’ during that interval.” Nino, 183 27 F.3d at 1006. 28 2. Equitable Tolling of the Limitations Period -3- 1 In certain limited circumstances, AEDPA’s one-year filing deadline may be equitably 2 tolled. See Holland v. Florida, 130 S. Ct. 2549, 2590 (2010). A petitioner is entitled to 3 equitable tolling if he can demonstrate that “(1) he has been pursuing his rights diligently, 4 and (2) that some extraordinary circumstance stood in his way” to prevent his timely filing. 5 Pace, 544 U.S. at 418; Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (quoting Bryant 6 v. Ariz. Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007)). For instance, equitable tolling is 7 available “where an attorney’s misconduct is sufficiently egregious,” such as where an 8 attorney refuses to file a petition at the client’s request or when the attorney abandons the 9 client. Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003); Holland, 130 S. Ct. at 2568 10 (Alito, J., concurring). Equitable tolling is also available where a petitioner is denied access 11 to his case file for an extended period of time. Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 12 2002). Nevertheless, “the threshold necessary to trigger equitable tolling [under AEDPA] is 13 very high, lest the exceptions swallow the rule.” Spitsyn, 345 F.3d at 799 (quoting Miranda 14 v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Equitable tolling is not available “in non- 15 capital cases where attorney negligence has caused [an untimely] filing of a petition.” 16 Spitsyn, 345 F.3d at 800. See also Lawrence v. Florida, 549 U.S. 327, 336 (2007) (equitable 17 tolling not available merely because of a counsel’s ordinary negligence, such as 18 “miscalculating the limitations period”). 19 II. Analysis 20 Judge Irwin’s R & R recommends that the Court deny the Petition because the 21 AEDPA statute of limitations has run. The R & R states that Petitioner’s limitations period 22 was statutorily tolled while Petitioner had pending PCR petitions. (Doc. 10 at 5:1–7). But 23 after those petitions were dismissed, the one-year statute of limitations began to run again 24 and expired on August 23, 1999. (Id. at 5:11–12). The limitations period should not be 25 equitably tolled because Petitioner’s pro se status and his former counsel’s decision not to 26 file a habeas petition were not extraordinary circumstances. (Id. at 5:5–8, 15–20). 27 Petitioner objects to the R & R, contending that his limitations period should have 28 been equitably tolled from August 1999 when his limitations period expired until August -4- 1 2010 when he filed his Petition—a period of eleven years. (Doc. 11). Petitioner requests 2 equitable tolling because (1) Joseph Collins, his counsel from 1998 until 2000, stopped 3 seeking post-conviction relief on his behalf; and because (2) Petitioner’s pro se status 4 inhibited him from conducting effective discovery. (Id. at 1, 5). Furthermore, Petitioner raises 5 substantive reasons for why his habeas claim has merit. (Id. at 6–10). Rule 72(b) provides 6 that the district judge “must determine de novo any part of the magistrate judge’s disposition 7 that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 8 A. 9 Equitable Tolling 1. Representation by Joseph Collins 10 Petitioner states that the limitations period should be equitably tolled because in 2000 11 “Collins stopped his attempt with Petitioner’s PCR saying that he could not go forth.” (Doc. 12 11 at 1). However, Collins’s decision not to pursue further post-conviction relief after the 13 petition he filed was denied does not constitute an extraordinary circumstance that would toll 14 the limitations period. While a petitioner may be entitled to a reasonable length of equitable 15 tolling where he is “abandoned” by his attorney, Petitioner does not make such an allegation. 16 Holland, 130 S. Ct. at 2568 (Alito, J., concurring). Abandonment, consists of “near-total 17 failure to communicate with petitioner or to respond to petitioner’s many inquiries and 18 requests.” Id. at 2568. Petitioner does not contend that Collins was engaged to pursue 19 additional post-conviction relief or file a habeas petition, or that Collins refused such 20 requests. Moreover, Petitioner states that the Project took Petitioner’s case in 2001. (Doc. 11 21 at 2). Even if Collins’s conduct was sufficiently egregious to equitably toll Petitioner’s 22 limitations period during the two years he represented Petitioner, such conduct would not 23 continue to equitably toll Plaintiff’s limitations period during the subsequent nine years that 24 he was represented by the Project. 2. 25 Petitioner’s Pro Se Status 26 Petitioner also seeks equitable tolling on the grounds that it was difficult for him as 27 a pro se plaintiff to discover the conduct by his trial counsel that allegedly entitles him to 28 relief: -5- 1 2 3 4 By going to trial unprepared . . . [Petitioner’s trial counsel] was ineffective. This fact was only made clear after such diligence as 19 years of struggle with no money by Petitioner. If it had not been for the Justice Project . . . this truth would still be masked. (Doc. 11 at 5). 5 The attorneys at the Project did not, however, pursue a habeas claim; and they closed 6 Petitioner’s case after determining there was no new evidence to bring before a court to 7 review his sentence or conviction. (Doc. 1, Ex. 1). Petitioner does not allege that the 8 attorneys at the Project were negligent or that their conduct was egregious. Moreover, even 9 if Petitioner’s conclusory allegation that he pursued his rights diligently for 19 years is true, 10 he has not alleged any extraordinary circumstance which prevented him from filing his 11 petition earlier. See Pace, 544 U.S. at 418 (equitable tolling available when petitioner is both 12 diligent in pursuing rights and had extraordinary circumstances preventing earlier filing). His 13 pro se status in itself does not amount to an extraordinary circumstance. Robinson v. Kramer, 14 588 F.3d 1212, 1216 (9th Cir. 2009) (citing Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000)); 15 see also Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 2000) (“[I]gnorance of the law, even 16 for an incarcerated pro se petitioner, generally does not excuse prompt filing.”). 17 Petitioner has not demonstrated that either Collins or the Arizona Justice Project 18 abandoned him or failed to provide him with adequate legal representation. Petitioner has not 19 demonstrated extraordinary circumstances that would equitably toll his statute of limitations 20 for eleven years. 21 B. 22 Even if Plaintiff’s habeas Petition were not barred by AEDPA’s statute of limitations, 23 it would fail on substantive grounds. First, Petitioner cites Blakely v. Washington, 542 U.S. 24 296 (2004) for the proposition that a jury must “prove every element” of a crime that may 25 subsequently be used to enhance a defendant’s sentence above the statutory maximum. (Doc. 26 11 at 6). Petitioner argues that under Blakely, a jury should have determined whether he used 27 a gun for the sentencing judge to enhance his sentence on that basis. (Id.). Petitioner was 28 sentenced in 1991, and Blakely was not decided until 2004. The rule in Blakely does not Substantive Grounds -6- 1 apply retroactively to Petitioner’s sentence. State v. Febles, 210 Ariz. 589, 595, 115 P.3d 2 629, 632 (App. 2005) (“Blakely only applies to cases not yet final when the opinion was 3 issued.”). 4 murder charge. (Doc. 11 at 2, 9). The record, however, reflects that Petitioner was found 5 guilty by a jury in Maricopa County Superior Court; there was no plea agreement. (Doc. 8, 6 Ex. A at 2–3). Second, Petitioner alleges that he was forced to sign a plea agreement on the 7 Petitioner lastly contends that he is entitled to relief under Glasser v. United States, 8 380 U.S. 415 (1965) and Douglas v. Alabama, 315 U.S. 60 (1942), superceded by statute on 9 other grounds by Bourjaily v. United States, 483 U.S. 171 (1987). In Glasser, the Supreme 10 Court held that a defendant’s counsel cannot concurrently represent a defendant and other 11 clients where doing so would create conflicts of interest. 315 U.S. at 76. Petitioner has not 12 made any showing that his trial counsel represented other clients during his representation 13 or that such representation created a conflict of interest. In Douglas, the Supreme Court 14 upheld a defendant’s right to cross-examine witnesses under the Confrontation Clause. 380 15 U.S. at 419. Petitioner does not allege that his trial attorney failed to cross-examine witnesses 16 or that he was denied the right to confront witnesses. 17 In sum, Petitioner has not shown that his trial proceedings were in violation of clearly 18 established federal law or were based on an unreasonable determination of the facts in light 19 of the evidence presented. 28 U.S.C. § 2254(d)(1)–(2). 20 C. 21 When a habeas petition is denied on procedural grounds, the court may issue a 22 certificate of appealability (“COA”) if the applicant has “made a substantial showing of the 23 denial of constitutional right.” 28 U.S.C. § 2253(c)(2). A COA is issued “if the prisoner 24 shows . . . that jurists of reason would find it debatable whether the petition states a valid 25 claim of the denial of a constitutional right, and . . . whether the district court was correct in 26 its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). Given that Petitioner 27 filed this Petition eleven years after his one-year statute of limitations had run and that he has Certificate of Appealability 28 -7- 1 not presented facts suggesting the statute should have been equitably tolled, this Court finds 2 that reasonable jurists would not debate this Court’s procedural ruling. Therefore, a COA 3 will not be issued. 4 CONCLUSION 5 Petitioner’s one-year statute of limitations was statutorily tolled until August 23, 1999 6 and Petitioner filed this Petition on August 9, 2010. Petitioner is almost eleven years late with 7 this Petition, and he does not have an extraordinary circumstance to merit equitable tolling. 8 IT IS THEREFORE ORDERED: 9 1. Magistrate Judge Irwin’s R&R (Doc.10) is ACCEPTED. 10 2. Petitioner Washington’s Petition for Writ of Habeas Corpus (Doc. 1) is 11 DENIED. 12 3. The Clerk of Court shall TERMINATE this action. 13 4 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event 14 Petitioner files an appeal, the Court declines to issue a certificate of appealability because 15 reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v. 16 McDaniel, 529 U.S. 473, 484 (2000). 17 DATED this 3rd day of April, 2012. 18 19 20 21 22 23 24 25 26 27 28 -8-

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