Sojka v. Ryan et al

Filing 53

ORDER - Magistrate Judge Eileen S. Willett's 39 R&R is accepted. Sojka's 1 petition for writ of habeas corpus is denied with prejudice. The Clerk of the Court is directed to terminate this action. Signed by Judge David G Campbell on 02/12/2016. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alan Marcel Sojka II,
Petitioner,

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ORDER

v.

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No. CV-13-01449-PHX-DGC

Charles L. Ryan, et al.,

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Respondents.

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On July 16, 2013, Petitioner Alan Marcel Sojka II filed a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The Court referred the petition to

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Magistrate Judge David K. Duncan, and later to Magistrate Judge Eileen S. Willett.

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Docs. 5, 38. Judge Willett issued a report and recommendation (“R&R”) recommending

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that the Court dismiss the petition as untimely. Doc. 39. Pro se Petitioner filed an

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objection to the R&R. Doc. 50. For the reasons set forth below, the Court will overrule

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his objections and adopt Judge Willett’s recommendation that the petition be dismissed.

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I.

Introduction.1

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The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

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establishes a one-year statute of limitations for habeas petitions filed by state prisoners.

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28 U.S.C. § 2244(d)(1). As relevant here, the limitations period runs from “the date on

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

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For general background on this case (to which Petition has not objected), see the
R&R. Doc. 39 at 2-4.

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the time for seeking such review.” § 2244(d)(1)(A). The limitations period is subject to

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both statutory tolling and equitable tolling. Statutory tolling is available for “[t]he time

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during which a properly filed application for State post-conviction or other collateral

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review with respect to the pertinent judgment or claim is pending.”

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Equitable tolling is available where “extraordinary circumstances beyond a prisoner’s

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control ma[d]e it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964,

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968 (9th Cir. 2006). In addition, a petitioner is entitled to an equitable exception to the

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AEDPA’s statute of limitations if he makes “a credible showing of actual innocence.”

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McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013).

§ 2244(d)(2).

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Judge Willett determined that (1) the AEDPA limitations period began to run on

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January 2, 2009, the last day on which Sojka could have petitioned the Arizona Supreme

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Court for direct review of his conviction (Doc. 39 at 7 & n.5); (2) the limitations period

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was subject to statutory tolling from January 6, 2009 through February 10, 2012, during

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which Sojka’s petition for post-conviction review (“PCR”) was pending before the

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Maricopa County Superior Court (id. at 8-9); and (3) the limitations period was not

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subject to any additional statutory tolling because Sojka did not have a “properly filed”

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PCR petition pending in state court at any time after February 10, 2012 (id. at 9-14).

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Next, Judge Willett determined that Sojka was not entitled to equitable tolling because he

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had not shown that extraordinary circumstances made it impossible for him to file a

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timely habeas petition. Id. at 14-19. Finally, Judge Willett determined that Sojka was

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not entitled to an equitable exception to the limitations period because he had not made a

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credible showing of actual innocence. Id. at 19-21. Based on these findings, Judge

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Willett concluded that the limitations period expired on February 6, 2013, making

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Sojka’s petition 160 days late. Id. at 19.

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In his written objections, Sojka argues that (1) he is entitled to statutory tolling (or,

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in the alternative, equitable tolling) for the period between February 11, 2012 and

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September 24, 2012, when he was seeking reconsideration of the Superior Court’s denial

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on his PCR petition (Doc. 50 at 4-7); and (2) he is entitled to equitable tolling for the

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period between September 25, 2012 and July 16, 2013, when he diligently sought to

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appeal the denial of his reconsideration petition but was impeded by the Superior Court’s

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unexpected application of a state-law procedural bar (id. at 7-12). The Court reviews

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Sojka’s objections de novo; the portions of the R&R to which he does not object will be

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adopted without further discussion. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1);

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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II.

Analysis.

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A.

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On February 10, 2012, the Superior Court denied Sojka’s PCR petition. Doc. 39

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at 3 (citing Doc. 17-2 at 130-41). The court initially set March 30, 2012 as the deadline

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to file a petition for reconsideration, but later granted Sojka’s request for an extension.

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Id. (citing Doc. 17-2 at 147-48, 150-52, 165). On May 7, 2012, the court extended the

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deadline to file a motion for reconsideration until June 29, 2012, warning Sojka “that no

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further continuances will be granted absent a substantial showing of extraordinary

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circumstances.”

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reconsideration motion by this deadline, and instead filed three additional extension

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requests. Id. The court denied these requests on August 7, 2012, finding that Sojka had

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“failed to make the required showing of extraordinary circumstances sufficient to justify

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a further extension of time.” Id. (citing Doc. 17-5 at 151).

Statutory Tolling.

Id. at 10 (citing Doc. 17-5 at 151).

Sojka failed to file his

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In September 2012, Sojka filed a motion to set aside the final decision, a motion to

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extend the deadline to file a petition for review by the Court of Appeals, and a petition for

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reconsideration. Id. at 11 (citing Docs. 17-3 at 3-8, 9-101; 17-4). On September 24,

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2012, the Superior Court issued a minute entry denying the motion to set aside the final

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decision, but granting the motion to extend the time for seeking appellate review. Id.

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(citing Doc. 17-5 at 2). The court subsequently amended the minute entry to deny the

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petition for reconsideration as well. Id. (citing Doc. 17-5 at 4).

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Judge Willett found that statutory tolling was not available for this period because

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Sojka never presented the Superior Court with a “properly filed” petition for

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reconsideration. Doc. 39 at 9-11. She noted that “time limits, no matter their form, are

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‘filing’ conditions,” which means that an untimely PCR petition is not “properly filed”

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for purposes of AEDPA. Id. at 7-8 (citing Pace v. DiGuglielmo, 544 U.S. 408, 417

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(2005)).

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Sojka notes that the Superior Court dispensed with a prior, improperly filed

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motion with an order stating that “no action w[ould] be taken” on the motion. Doc. 50 at

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4 (citing Doc. 17-2 at 155). Because the Superior Court did not enter a similar order with

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respect to his reconsideration petition, he reasons, it must have concluded that it was not

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improperly filed. Id. Relatedly, he argues that it must be presumed that a summary

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denial was made on the merits. Id. at 5 (citing Harrington v. Richter, 562 U.S. 86, 99

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(2011) (“When a federal claim has been presented to a state court and the state court has

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denied relief, it may be presumed that the state court adjudicated the claim on the merits

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in the absence of any indication or state-law procedural principles to the contrary.”)).

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Sojka’s arguments are unavailing. First, there is no question that Sojka’s petition

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was untimely. After an initial extension, the Superior Court ordered Sojka to file his

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petition by June 29, 2012, warning him that further extensions would not be granted

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absent a showing of extraordinary circumstances. Sojka did not file his petition before

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June 29, 2012, and his requests for an additional extension were denied. Thus, Sojka’s

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motion was untimely and not properly filed.

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Second, the April 12, 2012 minute entry did not purport to establish a generally

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applicable procedure for improperly filed motions; it merely stated that the court would

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not take action on the particular motion pending before it. Sojka does not point to any

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Arizona case or rule of procedure requiring the Superior Court to deal with subsequent

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improper filings in the same way.

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Third, although Sojka is right that courts generally presume that a summary denial

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was made on the merits, he overlooks the fact that this presumption “may be overcome

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when there is reason to think some other explanation for the state court’s decision is more

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likely.” Harrington, 562 U.S. at 99-100 (citation omitted). That is the case here. Sojka’s

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motion was dismissed several months after the court-ordered filing deadline, after the

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court found that Sojka had not demonstrated any extraordinary circumstances justifying

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an extension, and after the court explicitly denied three additional extension requests. It

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would be highly unusual for a court, after refusing to extend the filing deadline, to

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nonetheless consider the merits of a petition filed several months late. In any event, even

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if the Superior Court did overlook the obvious untimeliness of Sojka’s petition to deny it

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on the merits, that would not render the petition “properly filed” for purposes of AEDPA.

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See Carey v. Saffold, 536 U.S. 214, 225-26 (2002) (explaining that “[a] court will

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sometimes address the merits of a claim that it believes was presented in an untimely

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way,” but that does not render the claim properly filed for purposes of AEDPA).

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Because Sojka’s reconsideration petition was never properly filed, he is not

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entitled to statutory tolling for the period between February 11, 2012 and September 24,

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2012.

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B.

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To establish his entitlement to equitable tolling, Sojka must show that (1) he

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pursued his claims diligently during the relevant period; (2) extraordinary circumstances

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beyond his control made it impossible for him to file a timely habeas petition; and (3)

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these circumstances proximately caused his untimeliness. Roy, 465 F.3d at 969; Allen v.

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Lewis, 255 F.3d 798, 800 (9th Cir. 2001), rev’d en banc on other grounds, 295 F.3d 1046

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(9th Cir. 2002).

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1.

Equitable Tolling.

February 11, 2012 to September 24, 2012.

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Sojka argues that he is entitled to equitable tolling for the period during which he

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sought reconsideration because he diligently pursued his rights during this time but was

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thwarted by circumstances beyond his control. Doc. 50 at 6-7. Specifically, Sojka states

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that he was unable to file a proper petition for reconsideration because (1) a prison

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lockdown made it impossible for him to comply with the court-ordered filing deadline;

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(2) the court failed to docket his first extension request; and (3) the court denied his

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subsequent extension requests based on the mistaken assumption that “he was trying to

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use the rehearing process to relitigate the PCR petition.” Id. at 7.

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The problem for Sojka is that his arguments address the wrong question. The

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pertinent question is not whether extraordinary circumstances prevented Sojka from filing

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a timely reconsideration petition, but whether extraordinary circumstances prevented him

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from filing a timely habeas petition. Sojka has not shown that the difficulties he faced in

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complying with the reconsideration deadline had any bearing on his ability to file a

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timely habeas petition. Nor could he. As of the date his reconsideration petition was

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denied, Sojka still had 136 days to file a habeas petition, and he made several significant

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filings in state courts during this time. Because the difficulties Sojka faced in complying

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with the reconsideration deadline did not make it impossible to file a timely habeas

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petition, he is not entitled to equitable tolling based on these difficulties.

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2.

September 25, 2012 to July 16, 2013.

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After the Superior Court denied Sojka’s petition for reconsideration, Sojka sought

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to extend the deadline to appeal this decision to the Arizona Court of Appeals. On

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November 5, 2012, the Superior Court granted an extension until November 30, 2012,

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warning that no additional extensions would be granted “absent a substantial showing of

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extenuating circumstances.” Doc. 39 at 12 (citing Doc. 17-5 at 156). Shortly before this

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deadline, Sojka filed another extension request. Id. After the deadline, but before the

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Superior Court could act on this request, Sojka petitioned the Arizona Court of Appeals

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for review. Id. (citing Doc. 17-5 at 28-128). The State moved to preclude Sojka’s

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petition as untimely, and the Court of Appeals granted this motion, indicating that the

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Superior Court could authorize a late filing if it found that Sojka was not responsible for

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the delay. Id. at 13 (citing Doc. 17-6 at 14-16, 29). On March 5, 2013, the Superior

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Court ruled that Sojka was not entitled to an extension, stating: “Upon review and

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consideration of [Sojka’s] present submission, the Court finds that [he] has failed to make

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the required showing of extraordinary circumstances sufficient to justify a further

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extension.” Doc. 17-6 at 27.

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Sojka argues that he is entitled to equitable tolling for this period because he

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diligently sought to appeal the denial of his reconsideration petition but was impeded by

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the Superior Court’s unexpected application of state law, which precluded him from

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obtaining appellate review and rendered him ineligible for statutory tolling under

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AEDPA. Doc. 50 at 7-11. Sojka notes that the court’s November 5, 2012 order stated

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that the court would grant an extension upon “a substantial showing of extenuating

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circumstances,” while its March 5, 2013 order applied an “extraordinary circumstances”

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standard.

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circumstances,” and that his petition for review would have been allowed to proceed but

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for the Superior Court’s retroactive application of the more stringent “extraordinary

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circumstances” standard. Id. In support of this argument, Sojka cites Urcinoli v. Cathel,

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546 F.3d 269 (3d Cir. 2008), for the proposition that “a court’s action, even if legitimate

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when taken, may constitute an extraordinary circumstance warranting equitable tolling if

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it later operates to prevent a plaintiff from pursuing his rights.” Id. at 275.

Doc. 50 at 8-9.

Sojka argues that he made a showing of “extenuating

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For several reasons, the Court finds Sojka’s argument insufficient. First, it asks

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this Court to find that the Superior Court misapplied Arizona law (as set forth in the

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Superior Court’s own November 5, 2012 order). But a federal habeas court will not

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disturb a state court’s interpretation of state law unless the interpretation is “untenable or

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. . . a subterfuge to avoid federal review of a constitutional violation.” Oxborrow v.

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Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989). The Superior Court’s interpretation of

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its prior order was neither. Although a distinction might be drawn between “extenuating”

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and “extraordinary” circumstances, nothing in Arizona law requires such a distinction,

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and it was not unreasonable for the Superior Court to conflate the terms.

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Second, Sojka has not shown that Superior Court’s failure to apply an

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“extenuating circumstances” test resulted in the denial of his extension request. Sojka

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argues that there were extenuating circumstances justifying an extension: his limited

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education, lack of access to case law, and inability to conduct factual research in a timely

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manner. Doc. 50 at 8. But the Superior Court was aware of all of this when it set the

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November 30, 2012 deadline; it clearly did not intend to grant an extension absent

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evidence that Sojka faced some additional impediment to timely filing. Because Sojka

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fails to identify any such impediment, he cannot show that the Superior Court’s failure to

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apply an “extenuating circumstances” standard resulted in the denial of his extension

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request.

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Third, even if Sojka could show that the Superior Court’s failure to apply an

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“extenuating circumstances” standard resulted in the denial of his extension request, he

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could not show that this denial proximately caused him to miss the AEDPA filing

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deadline. Sojka was not required to wait for the Superior Court to decide his extension

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request before filing his habeas petition; he could have filed a protective habeas petition

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immediately after he missed the deadline for filing a reconsideration petition. See Pace,

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544 U.S. at 416 (where there is “reasonable confusion” about whether prisoner’s state

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court petition will be deemed timely, the prisoner may file a protective habeas petition in

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federal court). Sojka has not shown that extraordinary circumstances prevented him from

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filing such a protective petition, and the possibility that the Superior Court might have

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allowed his reconsideration petition to proceed was certainly no impediment to the filing

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of such a petition.

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The fact that Sojka could have filed a protective habeas petition renders Urcinoli

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distinguishable.

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limitations period had ended – of a prisoner’s timely, exhausted claims. 546 F.3d at 273.

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Because the district court’s action completely foreclosed any possibility that the prisoner

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could obtain federal habeas relief on claims he had properly presented in a habeas

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petition, the Third Circuit held that the district court’s decision was an “extraordinary

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circumstance” justifying equitable tolling. See id. at 273-77. By contrast, nothing the

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Superior Court did prevented Sojka from filing a protective habeas petition within the

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limitations period.

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justifying equitable tolling.

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IT IS ORDERED:

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1.

That case involved a federal habeas court’s dismissal – after the

His decision not to do so is not an extraordinary circumstance

Magistrate Judge Eileen S. Willett’s R&R (Doc. 39) is accepted.

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2.

Sojka’s petition for writ of habeas corpus (Doc. 1) is denied with prejudice.

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The Clerk of the Court is directed to terminate this action.

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Dated this 12th day of February, 2016.

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