Silva v. Ryan et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION 20 Report and Recommendation. Magistrate Judge Duncan's R&R (Doc. 20) is accepted. The petition for writ of habeas corpus 1 is dismissed with prejudice. A certificate of appealability is denied. The Clerk shall terminate this action. Signed by Judge David G Campbell on 11/21/2013. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,

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No. CV-12-01421-PHX-DGC (DKD)

Frank Silva,

ORDER

v.
Charles L. Ryan, et al.,
Respondents.

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Petitioner Frank Silva filed a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254, challenging the constitutionality of his sentence. Doc. 1. The petition

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was referred to Magistrate Judge Duncan, who issued a report and recommendation

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(“R&R”) in which he recommends that the Court dismiss the petition as untimely.

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Doc. 20. Petitioner has submitted objections to the R&R. Doc. 23. For the reasons that

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follow, the Court will adopt the R&R and dismiss the petition with prejudice.

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I.

Background.

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In 1982, following a two-month jury trial in Maricopa County Superior Court,

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Petitioner was convicted on forty felony counts of sexual assault on fourteen victims. He

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was sentenced to more than 200 years in prison. Doc. 20 at 1. Petitioner’s conviction

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and sentences were upheld by the Arizona Court of Appeals in 1986, and a Rule 32

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petition filed in 1988 was dismissed without prejudice on September 9, 1988. Id. at 2.

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Petitioner filed a second petition for post-conviction relief in April 2008, which was

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dismissed on January 11, 2010, after the appointment of post-conviction counsel and

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briefing. Id. The Court of Appeals denied review on July 8, 2011, and the Arizona

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Supreme Court denied review on December 7, 2011. Id. This petition was filed on

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July 2, 2012. Id.

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Judge Duncan found that the petition is subject to the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), which provides a one-year

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statute of limitations for section 2254 petitions filed by state prisoners. Doc. 20 at 2.

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State prisoners with convictions that became final before the AEDPA’s effective date of

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April 24, 1996, were allowed a one-year grace period to file their petitions. Id.; see

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Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). Accordingly, Judge Duncan

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concluded that Petitioner was required to file any petition by April 24, 1997. Doc. 20 at

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2. Judge Duncan also concluded that the limitations period was not tolled, making the

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petition untimely, and recommended the petition be dismissed with prejudice. Id. at 3-4.

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Judge Duncan further recommended that the Court deny a certificate of appealability. Id.

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at 4.

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Petitioner contends that Judge Duncan “overlooked” evidence and exhibits that

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were relevant to the statute of limitations issue. Doc. 23 at 2. Petitioner further contends

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that the R&R is “confused,” and that it “has no support in the record.” Id. at 3-4.

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II.

Analysis.

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The Court must undertake a de novo review of those portions of the R&R to which

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specific objections are made. See Thomas v. Arn, 474 U.S. 140, 149 (1985). The Court

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may accept, reject, or modify, in whole or in part, the findings or recommendations made

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by the magistrate judge. See 28 U.S.C. § 636(b)(1).

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Petitioner’s objections to the R&R appear to challenge Judge Duncan’s findings

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on statutory and equitable tolling of the statute of limitations. Doc. 23 at 6. He argues

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that Judge Duncan “overlooked all the uncontested due diligence and CONST. (sic)

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impediment facts/evidence and exhibits,” (doc. 23 at 2), and that he did not consider

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Petitioner’s other claims as a result (id.). Petitioner also objects to Judge Duncan’s

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recommendation that the Court deny a certificate of appealability. Id. at 21. The Court

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finds neither equitable nor statutory tolling appropriate in this case, and agrees that a

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certificate of appealability should be denied.

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A.

Equitable Tolling.

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The Supreme Court has held that a petitioner “is ‘entitled to equitable tolling’ only

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if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some

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extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v.

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Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

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(2005)). An extraordinary circumstance is one that is “beyond a prisoner’s control,” that

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“make[s] it impossible to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107

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(9th Cir. 1999). To justify equitable tolling, an extraordinary circumstance must be

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attributable to “external forces [] rather than a petitioner’s lack of diligence[.]” Id.

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Petitioner contends that the “A.D.O.C. law library did not update the fed. (sic)

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habeas code and that they did not place the then new SOL AEDPA code in the law

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libraries until 8-2-97, long after the 4-24-97 grace period had expired[.]” Doc. 23 at 10.

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The Court need not decide this issue because the Court finds that Petitioner has not been

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pursuing his rights diligently. Petitioner filed no court documents between September

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1988 and April 2008. In an attempt to show diligence, Petitioner recounts legal advice he

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received, legal courses he took, and research he conducted between 1982 and 1993, but

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he does not explain what steps he took between 1993 and 2008 to pursue his rights. Id. at

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7-10. Fifteen years without court filings cannot be characterized as diligence. The Court

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concludes that Petitioner has not diligently pursued his rights and therefore is not entitled

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to equitable tolling of the AEDPA’s limitation period. See Holland, 130 S. Ct. at 2562.

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B.

Statutory Tolling.

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To the extent Petitioner also contends that the limitations period was statutorily

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tolled in this case, Petitioner is incorrect. The AEDPA’s limitation period is tolled while

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

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respect to the pertinent judgment or claim is pending[.]” 28 U.S.C. § 2244(d)(2). The

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Ninth Circuit has construed the term “pending” broadly, holding that the AEDPA’s

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limitation period is statutorily “tolled for ‘all of the time during which a state prisoner is

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attempting, through proper use of state court procedures, to exhaust state court remedies

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with regard to a particular post-conviction [petition].’” Nino v. Galaza, 183 F.3d 1003,

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1005-06 (9th Cir. 1999) (internal citation omitted); see Jenkins v. Johnson, 330 F.3d

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1146, 1149 (9th Cir. 2003). A petitioner, however, “is not entitled to tolling during the

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gap between the completion of one full round of state collateral review and the

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commencement of another.” Delhomme v. Ramirez, 340 F.3d 817, 820 (9th Cir. 2003)

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

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Petitioner contends that because his most recent state petition was filed in 2008

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and was pending until the Arizona Supreme Court denied relief in 2011, the limitation

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period was tolled pursuant to section 2244(d)(2) until that time. Doc. 23 at 16. This

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argument is incorrect.

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pending between 1988 and 2008, during which time the AEDPA’s one-year grace period

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came and went. See Patterson, 251 F.3d at 1245. The Ninth Circuit has held that

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“section 2244(d) does not permit the reinitiation of [a] limitations period that has ended

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before the state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

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2003). Thus, Petitioner’s 2008 petition does not alter the calculation of section 2244’s

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limitation period.

Petitioner had no application for state post-conviction relief

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Petitioner also argues that “his 1997 grace period was statutorily extended until

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Jan. 2009, pursuant to 28 U.S.C. 2244(d)(1)(B)(D) (sic).” Id. at 6. The cited portions of

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section 2244(d)(1)(B) and (D) provide that a one-year limitation period applies to the

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application for a writ of habeas corpus by a state prisoner and that the limitation period

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runs from the later of “the date on which the impediment to filing an application created

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by State action in violation of the Constitution or laws of the United States is removed, if

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the applicant was prevented from filing by such state action,” or “the date on which the

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factual predicate of the claim or claims presented could have been discovered through the

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exercise of due diligence.” Petitioner has not presented facts showing the applicability of

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these statutory provisions, nor any facts that would support the extension of the limitation

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period past April 24, 1997 on other grounds. The Court accordingly finds that the

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AEDPA’s limitation period was not statutorily tolled and that the petition is untimely.

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C.

Certificate of Appealability.

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A certificate of appealability can be issued only if petitioner has “made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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Where the district court’s dismissal is based on procedure, a substantial showing requires

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that “jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain

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procedural bar is present and the district court is correct to invoke it to dispose of the

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case, a reasonable jurist could not conclude either that the district court erred in

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dismissing the petition or that the petitioner should be allowed to proceed further. In

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such a circumstance, no appeal would be warranted.” Id.

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The petition was filed long after the expiration of the applicable limitations period,

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a fact with which reasonable jurists could not disagree. The certificate of appealability

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will therefore be denied.

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IT IS ORDERED:

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1.

Magistrate Judge Duncan’s R&R (Doc. 20) is accepted.

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2.

The petition for writ of habeas corpus (Doc. 1) is dismissed with prejudice.

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3.

A certificate of appealability is denied.

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4.

The Clerk shall terminate this action.

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Dated this 21st day of November, 2013.

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