Davis v. Ryan et al

Filing 15

ORDER ACCEPTING IN PART 12 Report and Recommendation. The Clerk is directed to enter a judgment DISMISSING WITH PREJUDICE the Petition for Writ of Habeas Corpus (Doc. 1 ). A Certificate of Appealability and leave to proceed in forma pauperis on appeal are 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 Senior Judge Roslyn O Silver on 1/23/15. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Curtis R. Davis,

No. CV-13-02338-PHX-ROS
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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Magistrate Judge John Z. Boyle issued a Report and Recommendation (“R&R”)

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concluding the claims in Curtis R. Davis’s petition “are untimely, procedurally barred

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from review, and fail on their merits.” (Doc. 12 at 2). Davis filed objections. Because

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the one-year statute of limitations bars the petition, the conclusion regarding timeliness

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will be adopted. The Court need not reach the other reasons set forth in the R&R.

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BACKGROUND
Davis does not object to the factual background set forth in the R&R. Therefore,

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that background will be adopted in full.

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molestation became final on January 11, 1996. Davis did not seek further relief regarding

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those convictions until April 15, 1998, when he filed a Notice of Post-Conviction Relief

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in Maricopa County Superior Court. After a variety of procedural complications, the

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Superior Court denied post-conviction relief in October 2001. In doing so, the Superior

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Court concluded the petition for post-conviction relief was “not timely” and “[e]ven if it

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were timely, the petition fail[ed] to establish any claim for post-conviction relief.” (Doc.

In brief, Davis’s convictions for child

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8-2 at 45). In late 2002 and early 2003, the Arizona Court of Appeals and the Arizona

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Supreme Court denied review. Davis then waited eight years before filing a second

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petition for post-conviction relief in November 2011. That petition was dismissed on

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November 23, 2011 as “successive and untimely.” (Doc. 8-4 at 2). In May 2012, Davis

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filed a third petition in state court. In December 2012, that petition was also dismissed as

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successive and untimely. (Doc. 8-4 at 27).

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On March 26, 2013—over fifteen years after his convictions became final—Davis

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filed his first federal petition. Based on Davis’s request, that petition was dismissed

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without prejudice shortly after filing. On November 14, 2013, Davis filed the current

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petition seeking relief based on alleged ineffective assistance of counsel during pretrial

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plea negotiations and initial collateral review. (Doc. 1 at 6). Respondents filed a limited

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answer, asserting the petition was untimely and, even if timely, Davis had not exhausted

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his claims.

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petition be dismissed with prejudice.

The Magistrate Judge agreed with Respondents and recommended the

ANALYSIS

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I. Standard of Review

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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). The district court

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must review de novo the portions to which an objection is made. Id. The district court

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need not, however, review the portions to which no objection is made. See Schmidt v.

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Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“[D]e novo review of factual and

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legal issues is required if objections are made, but not otherwise.”) (quotation marks and

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citation omitted).

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II. The Petition is Not Timely

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Based on when his convictions became final, and the effective date of the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Davis had until

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April 27, 1997 to file his federal petition. Davis did not file his petition until November

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14, 2013. Therefore, the petition is untimely unless some form of tolling applies.

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Under statutory tolling, the deadline for Davis to file his petition was 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 [was] pending.” Pace v. Diguglielmo, 544

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U.S. 408, 410 (2005) (quotation omitted). Davis’s convictions became final on January

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11, 1996 and he did not file any state application for post-conviction relief until April 15,

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1998. Thus, the April 27, 1997 deadline passed before Davis even filed his first state

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petition. And the filing of that state petition after the federal limitations period ran did

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not revive the federal limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823

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(9th Cir. 2003). Accordingly, the Magistrate Judge correctly concluded Davis is not

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entitled to statutory tolling.

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The other form of tolling potentially applicable is equitable tolling. “Equitable

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tolling is available to a habeas petitioner if (1) the petitioner pursued his rights diligently,

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and (2) an extraordinary circumstance prevented timely filing.” Yow Ming Yeh v. Martel,

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751 F.3d 1075, 1077 (9th Cir. 2014). It is exceptionally difficult to establish equitable

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tolling. Id. Here, the Magistrate Judge correctly concluded Davis has not presented any

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plausible basis for finding equitable tolling. Rather than pursuing his rights diligently,

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Davis appears to have taken very little action over the past seventeen years to pursue his

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federal claims. Davis waited two years to file his first state petition and then eight years

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after denial of that first petition to file his second state petition. Davis did not file this

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federal petition until his convictions had been final for over fifteen years. Davis has not

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identified any circumstances that prevented him from pursuing his claims much more

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diligently. Therefore, Davis is not entitled to equitable tolling.

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Instead of directly arguing statutory or equitable tolling, Davis argues the Court

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should rely on Martinez v. Ryan, 132 S. Ct. 1309 (2012) “to excuse procedural default”

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and reach the merits of his claims.

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“equitable excuse for procedural default.” Gray v. Barnhart, 2013 WL 1881258, at *4

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(D. Me. April 4, 2013). But Martinez “does not provide a time-bar excuse.” Id. In other

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words, procedural default and compliance with the federal statute of limitations are two

Davis is correct that Martinez recognized an

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distinct inquiries. If the current petition were timely, Martinez might apply such that the

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Court could reach procedurally defaulted claims.

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overcome missing the statute of limitations by over fifteen years. Given that the petition

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is clearly time-barred, there is no need to reach the alternative grounds set forth in the

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R&R for rejecting the petition.

But Martinez cannot be used to

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 12) is ACCEPTED IN

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PART and the Clerk of Court is directed to enter a judgment DISMISSING WITH

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PREJUDICE the Petition for Writ of Habeas Corpus (Doc. 1).

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal are DENIED because the dismissal of the petition is justified

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

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debatable.

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Dated this 23rd day of January, 2015.

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Honorable Roslyn O. Silver
Senior United States District Judge

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