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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Curtis R. Davis, No. CV-13-02338-PHX-ROS Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 Magistrate Judge John Z. Boyle issued a Report and Recommendation (“R&R”) 16 concluding the claims in Curtis R. Davis’s petition “are untimely, procedurally barred 17 from review, and fail on their merits.” (Doc. 12 at 2). Davis filed objections. Because 18 the one-year statute of limitations bars the petition, the conclusion regarding timeliness 19 will be adopted. The Court need not reach the other reasons set forth in the R&R. 20 21 BACKGROUND Davis does not object to the factual background set forth in the R&R. Therefore, 22 that background will be adopted in full. 23 molestation became final on January 11, 1996. Davis did not seek further relief regarding 24 those convictions until April 15, 1998, when he filed a Notice of Post-Conviction Relief 25 in Maricopa County Superior Court. After a variety of procedural complications, the 26 Superior Court denied post-conviction relief in October 2001. In doing so, the Superior 27 Court concluded the petition for post-conviction relief was “not timely” and “[e]ven if it 28 were timely, the petition fail[ed] to establish any claim for post-conviction relief.” (Doc. In brief, Davis’s convictions for child 1 8-2 at 45). In late 2002 and early 2003, the Arizona Court of Appeals and the Arizona 2 Supreme Court denied review. Davis then waited eight years before filing a second 3 petition for post-conviction relief in November 2011. That petition was dismissed on 4 November 23, 2011 as “successive and untimely.” (Doc. 8-4 at 2). In May 2012, Davis 5 filed a third petition in state court. In December 2012, that petition was also dismissed as 6 successive and untimely. (Doc. 8-4 at 27). 7 On March 26, 2013—over fifteen years after his convictions became final—Davis 8 filed his first federal petition. Based on Davis’s request, that petition was dismissed 9 without prejudice shortly after filing. On November 14, 2013, Davis filed the current 10 petition seeking relief based on alleged ineffective assistance of counsel during pretrial 11 plea negotiations and initial collateral review. (Doc. 1 at 6). Respondents filed a limited 12 answer, asserting the petition was untimely and, even if timely, Davis had not exhausted 13 his claims. 14 petition be dismissed with prejudice. The Magistrate Judge agreed with Respondents and recommended the ANALYSIS 15 16 I. Standard of Review 17 A district judge “may accept, reject, or modify, in whole or in part, the findings or 18 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The district court 19 must review de novo the portions to which an objection is made. Id. The district court 20 need not, however, review the portions to which no objection is made. See Schmidt v. 21 Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“[D]e novo review of factual and 22 legal issues is required if objections are made, but not otherwise.”) (quotation marks and 23 citation omitted). 24 II. The Petition is Not Timely 25 Based on when his convictions became final, and the effective date of the 26 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Davis had until 27 April 27, 1997 to file his federal petition. Davis did not file his petition until November 28 14, 2013. Therefore, the petition is untimely unless some form of tolling applies. -2- 1 Under statutory tolling, the deadline for Davis to file his petition was tolled “while 2 a properly filed application for State post-conviction or other collateral review with 3 respect to the pertinent judgment or claim [was] pending.” Pace v. Diguglielmo, 544 4 U.S. 408, 410 (2005) (quotation omitted). Davis’s convictions became final on January 5 11, 1996 and he did not file any state application for post-conviction relief until April 15, 6 1998. Thus, the April 27, 1997 deadline passed before Davis even filed his first state 7 petition. And the filing of that state petition after the federal limitations period ran did 8 not revive the federal limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 9 (9th Cir. 2003). Accordingly, the Magistrate Judge correctly concluded Davis is not 10 entitled to statutory tolling. 11 The other form of tolling potentially applicable is equitable tolling. “Equitable 12 tolling is available to a habeas petitioner if (1) the petitioner pursued his rights diligently, 13 and (2) an extraordinary circumstance prevented timely filing.” Yow Ming Yeh v. Martel, 14 751 F.3d 1075, 1077 (9th Cir. 2014). It is exceptionally difficult to establish equitable 15 tolling. Id. Here, the Magistrate Judge correctly concluded Davis has not presented any 16 plausible basis for finding equitable tolling. Rather than pursuing his rights diligently, 17 Davis appears to have taken very little action over the past seventeen years to pursue his 18 federal claims. Davis waited two years to file his first state petition and then eight years 19 after denial of that first petition to file his second state petition. Davis did not file this 20 federal petition until his convictions had been final for over fifteen years. Davis has not 21 identified any circumstances that prevented him from pursuing his claims much more 22 diligently. Therefore, Davis is not entitled to equitable tolling. 23 Instead of directly arguing statutory or equitable tolling, Davis argues the Court 24 should rely on Martinez v. Ryan, 132 S. Ct. 1309 (2012) “to excuse procedural default” 25 and reach the merits of his claims. 26 “equitable excuse for procedural default.” Gray v. Barnhart, 2013 WL 1881258, at *4 27 (D. Me. April 4, 2013). But Martinez “does not provide a time-bar excuse.” Id. In other 28 words, procedural default and compliance with the federal statute of limitations are two Davis is correct that Martinez recognized an -3- 1 distinct inquiries. If the current petition were timely, Martinez might apply such that the 2 Court could reach procedurally defaulted claims. 3 overcome missing the statute of limitations by over fifteen years. Given that the petition 4 is clearly time-barred, there is no need to reach the alternative grounds set forth in the 5 R&R for rejecting the petition. But Martinez cannot be used to 6 Accordingly, 7 IT IS ORDERED the Report and Recommendation (Doc. 12) is ACCEPTED IN 8 PART and the Clerk of Court is directed to enter a judgment DISMISSING WITH 9 PREJUDICE the Petition for Writ of Habeas Corpus (Doc. 1). 10 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed 11 in forma pauperis on appeal are DENIED because the dismissal of the petition is justified 12 by a plain procedural bar and jurists of reason would not find the procedural ruling 13 debatable. 14 Dated this 23rd day of January, 2015. 15 16 17 Honorable Roslyn O. Silver Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -4-

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