Rawls #151371 v. Ryan et al

Filing 20

ORDER tht the 18 Report and Recommendation is ADOPTED in full. ORDERED that the 1 Petition is DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal is DENIED. Signed by Chief Judge Roslyn O Silver on 3/4/2013. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nathan Rawls,
Petitioner,

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vs.

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Chuck Ryan, et al.,
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Respondents.
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No. CV-12-01157-PHX-ROS
ORDER

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Pending before the Court is a Report and Recommendation (“R&R”) and Petitioner’s

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objections thereto. For the reasons below, the Court will adopt the R&R.

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A.

Procedural Background

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On May 30, 2012, Petitioner filed his Petition for Writ of Habeas Corpus (the

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“Petition”). (Doc. 1). The Petition raises one ground for relief, claiming Petitioner was

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denied his Fifth and Fourteenth Amendment due process rights because the Maricopa County

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Superior Court “proceeded in excess of jurisdiction and subject matter jurisdiction and legal

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authority, by hearing and ruling and ordering a decision to dismiss the petitioner’s filed

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notice of post conviction relief.” (Doc. 1, at 6). In its Answer, Respondents argue

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Petitioner’s Petition must be dismissed as untimely. (Doc. 16). The Magistrate Judge issued

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the R&R, recommending the Petition be denied and dismissed with prejudice because

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Petitioner’s claim is untimely. (Doc. 18). Petitioner filed objections. (Doc. 19).

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B.

Analysis

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1.

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A district judge “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). Where any party has

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filed timely objections to the magistrate judge's report and recommendations, the district

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court’s review of the part objected to is to be de novo. Id.; see also United States v. Reyna-

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003).

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2.

Legal Standard

Statute of Limitations

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets forth the

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statute of limitations for federal petitions for writ of habeas corpus by state prisoners. 28

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U.S.C. § 2244(d)(1). The AEDPA provides:

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A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of –

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(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;

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(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action;

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(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or

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(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.

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Id.

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Under Arizona Rule of Criminal Procedure 32, An “of-right” petition for

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post-conviction review, available to criminal defendants who plead guilty, is a “direct

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review” under 28 U.S.C. § 2244(d)(1)(A). Summers v. Schriro, 481 F.3d 710, 711 (9th Cir.

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2007). Therefore, the judgment of conviction is final when the Rule 32 of-right proceeding

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concludes or when the time for seeking such review expires. Id. A state petition filed after

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the state time limit is not “properly filed” and, therefore, does not toll the statute of
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limitations. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). “When a postconviction

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petition is untimely under state law, ‘that [is] the end of the matter’ for purposes of §

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2244(d)(2).” Id. at 414.

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Petitioner was sentenced under a plea agreement on May 12, 2000. Petitioner had 90

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days to file a Rule 32 “of-right” petition for post-conviction relief. Ariz. R. Crim. P. 32.4(a).

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Petitioner did not file a Rule 32 “of-right” petition within 90 days. Therefore, the statute of

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limitations began to run on August 11, 2000, which was the day after the 90-day period

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expired. The statute of limitations expired one year later on August 11, 2001.

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On February 6, 2002, nearly six months after the statute of limitations expired,

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Petitioner filed his untimely petition for post-conviction relief. This petition did not toll the

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statute of limitations because the statute of limitations had passed by the time the petition was

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filed. Pace, 544 U.S. at 417. Petitioner filed a series of ten post-conviction petitions, none

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of which restarted the expired statute of limitations. Jiminez v. Rice, 276 F.3d 478, 482 (9th

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Cir. 2001). The instant habeas petition was filed May 30, 2012, over 10 years after the

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statute of limitations expired. The Petition is untimely.

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Petitioner does not dispute that his claims were filed after the statute of limitations,

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but argues the statute of limitations should be equitably tolled. The AEDPA’s statute of

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limitations period may be equitably tolled in appropriate cases. E.g., Holland v. Florida, 130

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S.Ct. 2549, 2560 (2010).

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circumstances’ beyond a [petitioner’s] control make it impossible to file a petition on time.”

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Calderon v. United States Dist. Ct. for Cent. Dist. of Calif., 128 F.3d 1283, 1288 (9th Cir.

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1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. for Cent.

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Dist. of Calif., 163 F.3d 530, 540 (9th Cir. 1998). Equitable tolling is only appropriate when

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“‘extraordinary circumstances’ beyond a [petitioner’s] control make it impossible to file a

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petition on time.” Id. “[T]he threshold necessary to trigger equitable tolling [under AEDPA]

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is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066

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(9th Cir. 2002) (citations omitted).

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Equitable tolling is appropriate when “‘extraordinary

To establish equitable tolling, Petitioner must show “‘(1) that he has been pursuing
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his rights diligently and (2) that some extraordinary circumstances stood in his way’” and

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prevented him from filing a timely petition. Holland v. Florida, 130 S.Ct. at 2562 (quoting

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Pace, 544 U.S. at 418). Petitioner must also establish a “causal connection” between the

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extraordinary circumstance “and his failure to file a timely habeas petition.” Bryant v.

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Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007).

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Petitioner argues he “has been pursuing his rights diligently and that extraordinary

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circumstances exist.” (Doc. 19, at 8). Petitioner argues the prison law library is inadequate

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because it is only open for a few hours per week, Petitioner is in lock down when the library

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is open (but Petitioner later states he was able to access the law library), books are available

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on a first-come-first-serve basis, and it has a limited selection of books. Petitioner argues he

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was forced to obtain legal authority from other inmates who had also filed habeas briefs.

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Limited access to a law library is not sufficient to establish extraordinary

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circumstances. E.g., Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001) (no equitable

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tolling where pro se petitioner stated he was ignorant of applicable law); Hall v. Warden,

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Lebanon Corr. Inst., 662 F.3d 745, 752 (6th Cir. 2011 (pro se status, limited library access,

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and delayed transcript not extraordinary circumstances requiring equitable tolling); Baker v.

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Norris, 321 F.3d 769, 771-72 (8th Cir. 2003) (no equitable tolling where petitioner

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complained of limited access to library); Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.

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2006) (“[A] pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary

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circumstance warranting equitable tolling.”). Accordingly, Petitioner is not entitled to

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equitable tolling. The Petition is time-barred.

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Because the Petitioner is time-barred, the Court will adopt the R&R and need not
address Petitioner’s other objections.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 18) is ADOPTED in full.

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IT IS FURTHER ORDERED the Petition (Doc. 1) is DENIED and DISMISSED

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WITH PREJUDICE.
IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in
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forma pauperis on appeal is DENIED because the dismissal of the Petition is justified by a

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plain procedural bar and jurists of reason would not find the procedural ruling debatable.

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DATED this 4th day of March, 2013.

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