Casey v. Ryan et al

Filing 16

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus be denied and dismissed with prejudice; that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be 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 Magistrate Judge Michelle H Burns on 8/24/11. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE:

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Roger Dale Casey,
Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

CIV 11-00155-PHX-NVW (MHB)
REPORT AND RECOMMENDATION

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Petitioner Roger Dale Casey, who is confined in the Arizona State Prison in Florence,

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Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

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(Doc. 1.) Respondents filed an Answer (Doc. 14), and Petitioner filed a Reply (Doc. 15).

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BACKGROUND

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On September 17, 1976, Petitioner was charged by information in the Maricopa

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County Superior Court with one count of escape from a community correctional center in CR

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94403; one count of burglary in the second degree while armed with a gun or deadly weapon,

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one count of assault with intent to commit rape in CR 94424; one count of rape, one count

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of lewd and lascivious acts, and one count of crime against nature in CR 94425; and one

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count of theft of a motor vehicle in CR 94426. (Doc. 14, Exhs. A, D.) Following jury trials,

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Petitioner was convicted as charged in all four cases. (Doc. 14, Exhs. B, C, D.)

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On May 11, 1977, the state court sentenced Petitioner to 4.5 to 5 years’ imprisonment

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in CR 94403; 25 years to life on both counts in CR 94424 to run concurrently to each other

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but consecutively to the sentence in CR 94403; 25 years to life, 9 to 10 years, and 18 to 20

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years in CR 94425 to run concurrently to each other but consecutively to the sentences in CR

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94424; and 9 to 10 years in CR 94426 to run consecutively to the sentences in the other cause

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numbers. (Doc. 14, Exh. D.)

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Petitioner filed a timely notice of appeal from the convictions and sentences in all four

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cases on May 12, 1977. (Doc. 14, Exhs. E, F.) Petitioner, however, moved to dismiss his

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appeal, and the Arizona Supreme Court granted his motion on September 6, 1977. (Doc. 14,

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Exh. G.)

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More than 15 years later, on October 8, 1992, Petitioner filed a notice of post-

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conviction relief in cause numbers CR 94425 and 94426.1 (Doc. 14, Exhs. H, I.) On March

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15, 1993, Petitioner filed his petition for post-conviction relief arguing that he received

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ineffective assistance from his trial counsel in violation of the Sixth Amendment of the

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United States Constitution and Article II, Section 24 of the Arizona Constitution because trial

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counsel failed to object to the alleged misconduct of the prosecutor during closing argument.

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(Doc. 14, Exh. I.) On May 26, 1993, the state court issued a minute entry dismissing

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Petitioner’s petition. (Doc. 14, Exh. M.) The state court found that Petitioner’s claims of

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prosecutorial misconduct and ineffective of assistance of counsel were precluded because

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they could have been addressed had Petitioner not voluntarily dismissed his direct appeal.

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(Doc. 14, Exh. M.) The state court further determined that, even if Petitioner’s claims were

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not precluded, he had failed to present a material question of law or fact that would entitle

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him to relief. (Doc. 14, Exh. M.)

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On July 8, 1993, Petitioner filed a petition for review in the Arizona Court of Appeals.

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(Doc. 14, Exh. N.) In his petition, he argued that the state court incorrectly found that: (1)

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preclusion prohibited litigation of his “impermissible comment” issue in post-conviction

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relief proceedings by virtue of his voluntary dismissal of his appeal; and (2) the comments

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While there appears to be a subsequent notice of post-conviction relief in cause
number CR 94424, (Doc. 14, Exh. J), there is no indication in the record that Petitioner
pursued this matter.
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made by the prosecutor during closing argument were not comments directing the jury’s

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attention to Petitioner’s failure to testify at trial. (Doc. 14, Exh. N.) On March 8, 1994, the

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Arizona Court of Appeals issued a memorandum decision affirming the state court’s

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findings. (Doc. 14, Exh. O.) In so doing, the court found that Petitioner had waived his

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prosecutorial misconduct claim when he failed to raise it on direct appeal. (Doc. 14, Exh.

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O.) The court, however, disagreed that Petitioner had waived his ineffective assistance of

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counsel claim and instead concluded that he had failed to present a material question of fact

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or law that would entitled him to relief in post-conviction proceedings. (Doc. 14, Exh. O.)

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Petitioner filed a petition for review in the Arizona Supreme Court raising the same

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issues. (Doc. 14, Exh. P.) The Arizona Supreme Court issued an order denying review on

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November 1, 1994. (Doc. 14, Exh. P.)

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Almost 14 years later, on July 22, 2008, Petitioner filed a second petition for post-

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conviction relief in cause numbers CR 94403, 94424, 94425, and 94426.2 (Doc. 14, Exh. Q.)

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In his second petition for post-conviction relief, Petitioner argued that: (1) the state court

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failed to consider any mitigating facts and, as a result, his sentences were cruel and unusual

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in violation of the Eighth Amendment of the United States Constitution; and (2) given the

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substantial changes in Arizona’s sentencing law over the past 30 years, Petitioner today

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would not receive such a harsh and excessive sentence. (Doc. 14, Exh. Q.) The state court

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denied the successive petition on February 19, 2009, finding that such relief was precluded

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pursuant to Rule 32.2(a)(1) because issues relating to Petitioner’s allegedly unjust and

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excessive sentences were issues that could have been raised on direct appeal. (Doc. 14, Exh.

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R.)

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On March 19, 2009, Petitioner filed a petition for review in the Arizona Court of

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Appeals. (Doc. 14, Exh. S.) In his petition, he argued that the state court incorrectly found

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his sentencing claims precluded. (Doc. 14, Exh. S.) He reasoned that he could not have

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Although Petitioner’s pleading was entitled “Writ of Habeus [sic] Corpus,” the state
court construed the pleading as a successive petition for post-conviction relief. (Doc. 14,
Exhs. Q, R.)
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raised his claims until the sentencing laws were changed. (Doc. 14, Exh. S.) He further

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reasoned that his Eighth Amendment cruel and unusual punishment claim could be raised at

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any time as long as the violation of his constitutional right was ongoing. (Doc. 14, Exh. S.)

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The Court of Appeals summarily denied review of the petition on April 13, 2010. (Doc. 14,

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Exh. T.)

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Thereafter, Petitioner filed a petition for review in the Arizona Supreme Court raising

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the same issues. (Doc. 14, Exh. U.) The Arizona Supreme Court issued an order summarily

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denying review on September 30, 2010. (Doc. 14, Exh. U.)

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On January 24, 2011, Petitioner filed the instant habeas petition alleging the following

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grounds for relief: (1) excessive sentence in violation of the Eighth Amendment; and (2)

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“substantial changes in Arizona sentencing laws” have rendered Petitioner’s sentence

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excessive. (Doc. 1.) Respondents filed an Answer (Doc. 14), and Petitioner filed a Reply

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(Doc. 15).

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DISCUSSION

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In their Answer, Respondents contend that Petitioner’s habeas petition is untimely.

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In the alternative, Respondents assert that Petitioner claims are procedurally defaulted.

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Respondents request that the habeas petition be denied and dismissed with prejudice.

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a

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statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners.

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See 28 U.S.C. § 2244(d)(1). The statute of limitations applies to all federal petitions filed

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after the AEDPA’s effective date, April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336-

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37 (1997). A state prisoner must file a federal petition within one year from “the date on

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which the judgment became final by the conclusion of direct review or the expiration of the

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time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see Lott v. Mueller, 304 F.3d

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918, 920 (9th Cir. 2002). State prisoners whose convictions became final before the effective

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date of the AEDPA are entitled to a one-year grace period, beginning on April 25, 1996, one

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day after the AEDPA’s enactment, in which to file their petitions. See Patterson v. Stewart,

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251 F.3d 1243, 1246 (9th Cir. 2001). The grace period expires on the anniversary of the

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AEDPA’s enactment, April 24, 1997. See id.

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“The time during which a properly filed application for State post-conviction or other

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collateral review with respect to the pertinent judgment or claim is pending shall not be

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counted toward” the limitations period. 28 U.S.C. § 2244(d)(2); see Lott, 304 F.3d at 921.

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A state petition that is not filed, however, within the state’s required time limit is not

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“properly filed” and, therefore, the petitioner is not entitled to statutory tolling. See Pace v.

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DiGuglielmo, 544 U.S. 408, 413 (2005). “When a post-conviction petition is untimely under

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state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” Id. at 414.

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In Arizona, post-conviction review is pending once a notice of post-conviction relief

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is filed even though the petition is not filed until later. See Isley v. Arizona Department of

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Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004). An application for post-conviction

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relief is also pending during the intervals between a lower court decision and a review by a

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higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey v.

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Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second

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application for post-conviction relief is not tolled because no application is “pending” during

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that period. See Biggs, 339 F.3d at 1048. Moreover, filing a new petition for post-

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conviction relief does not reinstate a limitations period that ended before the new petition

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was filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

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The statute of limitations under the AEDPA is also subject to equitable tolling in

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appropriate cases. See Holland v. Florida, --- U.S. ----, ----, 130 S.Ct. 2549, 2560, 177

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L.Ed.2d 130 (2010). However, for equitable tolling to apply, a petitioner must show “‘(1)

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that he has been pursuing his rights diligently and (2) that some extraordinary circumstances

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stood in his way’” and prevented him from filing a timely petition. Id. at 2562 (quoting Pace,

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544 U.S. at 418).

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The Court’s review of Petitioner’s post-conviction relief proceedings reveals that

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Petitioner’s Amended Petition for Writ of Habeas Corpus is untimely. Petitioner filed a

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notice of appeal from his convictions and sentences. (Doc. 14, Exhs. E, F.) Petitioner,
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however, moved to dismiss his appeal, rendering his judgment of conviction and sentence

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final on September 6, 1977 – the date the Arizona Supreme Court granted his motion. (Doc.

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14, Exh. G.) Because Petitioner’s conviction became final before April 24, 1996, the

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effective date of the AEDPA, the statute of limitations for Petitioner to file his federal habeas

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petition began to run on April 25, 1996, and expired on April 24, 1997.3 See Patterson, 251

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F.3d at 1256. Therefore, absent any tolling, Petitioner was required to file the instant habeas

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petition on or before April 24, 1997. See 28 U.S.C. § 2244(d)(1)(A); Malcom v. Payne, 281

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F.3d 951, 955 (9th Cir. 2002); Patterson, 251 F.3d at 1245-46.

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Petitioner’s commencement of his first post-conviction relief proceeding did not toll

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the limitations period as it concluded on January 30, 1995 – 90 days after the Arizona

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Supreme Court denied review – more than a year before the one-year period under the

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AEDPA commenced. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (ruling that

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the period of “direct review” under § 2244(d)(1)(A) includes 90-day period during which

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defendant can file petition for writ of certiorari from United States Supreme Court).

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Likewise, Petitioner’s commencement of a second post-conviction relief proceeding on July

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22, 2008, did not toll the limitations period. Since the second petition for post-conviction

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relief was filed after the AEDPA statute of limitations ended, it could not restart the expired

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one-year limitations period. See Ferguson, 321 F.3d at 823 (“Like the Eleventh Circuit, we

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hold that section 2244(d) does not permit the reinitiation of the [federal one-year] limitations

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period that has ended before the state petition was filed.”). In sum, Petitioner filed the instant

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habeas petition on January 24, 2011 – 13 years and 9 months after the one-year limitations

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period expired on April 24, 1997. The Petition is therefore untimely and should be dismissed

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with prejudice, absent any equitable tolling.

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Assuming Petitioner could have filed a petition for review from the dismissal of his
direct appeal by the supreme court, his judgment of conviction and sentence would still have
became final on October 6, 1977 – well before the effective date of AEDPA. See
Ariz.R.Crim.P. (establishing 30-day time limit from the filing of a decision for filing petition
for review in Arizona Supreme Court).
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As previously indicated, the AEDPA’s statute of limitations is subject to equitable

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tolling in appropriate cases. See Holland, 130 S.Ct. at 2560. In Holland, the Court reiterated

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its position “that a ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he

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has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood

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in his way’ and prevented timely filing.” Id. at 2562 (quoting Pace, 544 U.S. at 418). “To

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apply the doctrine in ‘extraordinary circumstances’ necessarily suggests the doctrine’s rarity,

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and the requirement that extraordinary circumstances ‘stood in his way’ suggests that an

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external force must cause the untimeliness, rather than ... merely ‘oversight, miscalculation

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or negligence on the petitioner’s part, all of which would preclude the application of

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equitable tolling.’” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009)

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(citation omitted).

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Petitioner suggests that his untimeliness should be excused because significant

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changes in the sentencing law have occurred that render his sentences cruel and unusual.

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Moreover, Petitioner suggests that as long as he is serving a cruel and unusual sentence, he

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should be able to challenge that sentence under the Eighth Amendment. Petitioner, however,

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does not identify what sentencing laws have changed, whether they apply to his case, and if

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applicable, how they render his sentences cruel and unusual. Petitioner, thus, has not

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suggested any extraordinary circumstance that would justify equitable tolling, let alone

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demonstrated that an external impediment stymied the diligent pursuit of his rights.

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Accordingly, Petitioner is not entitled to equitable tolling and his habeas petition is therefore

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untimely.
CONCLUSION

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Having determined that Petitioner’s habeas petition is untimely, the Court will

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recommend that Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) be denied and

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dismissed with prejudice.

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IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH

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PREJUDICE;
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IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave

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to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is

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justified by a plain procedural bar and jurists of reason would not find the procedural ruling

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debatable.

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This recommendation is not an order that is immediately appealable to the Ninth

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Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of

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Appellate Procedure, should not be filed until entry of the district court’s judgment. The

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parties shall have fourteen days from the date of service of a copy of this recommendation

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within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1);

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Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen

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days within which to file a response to the objections. Failure timely to file objections to the

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Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report

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and Recommendation by the district court without further review. See United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any

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factual determinations of the Magistrate Judge will be considered a waiver of a party’s right

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to appellate review of the findings of fact in an order or judgment entered pursuant to the

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Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil Procedure.

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DATED this 24th day of August, 2011.

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