Grindley #76966 v. Ryan et al

Filing 29

ORDER - Magistrate Judge Burn's 20 Report and Recommendation is accepted and adopted by the Court. The 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied and dismissed with prejudice. A Certificate of Appealab ility 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 and the Clerk of Court shall terminate this action. Signed by Judge Steven P Logan on 10/30/2015. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kenneth Clyde Grindley,

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Petitioner,
vs.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-14-00363-PHX-SPL
ORDER

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Petitioner Kenneth Clyde Grindley, who is confined in the Arizona State Prison

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Complex-Florence, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28

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U.S.C. § 2254 (Doc. 1). The Honorable Michelle H. Burns, United States Magistrate

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Judge, issued a Report and Recommendation (“R&R”) (Doc. 20), recommending that the

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petition be denied, and Petitioner objected to the R&R (Doc. 23). For the following

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reasons, the Court accepts and adopts the R&R, and denies the petition.

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I.

Background

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In 1994, Petitioner was indicted in the Maricopa County Superior Court, Case No.

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CR 94-09172, of two counts of aggravated assault of peace officers, both dangerous

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offenses. (Doc. 16-1, Exh. A.)1 Petitioner was convicted by a jury, but that conviction

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was subsequently reversed on appeal. (Doc. 16-1, Exhs. D, M.) Petitioner was tried again

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and convicted of one count of aggravated assault on October 16, 1997. He was sentenced

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The Court assumes the parties’ familiarity with underlying facts of conviction
which, for the reasons below, need not be reached on habeas review.

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to an aggravated 28-year term of imprisonment on November 17, 1997. (Doc. 16-1, Exhs.

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Q-T.)2

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On February 24, 2014, Petitioner filed the instant Petition for Writ of Habeas

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Corpus in federal court, raising two claims for relief. (Doc. 1.) Respondents filed an

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Answer (Doc. 16) in which they argue that the petition should be dismissed as untimely,

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and alternatively, that Petitioner’s claims are procedurally defaulted and barred from

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federal habeas corpus review.

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II.

Standard of Review

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The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1). The Court

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

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objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. Reyna–Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled as of right to de

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novo review of evidence and arguments raised for the first time in an objection to the

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R&R, and whether the Court considers the new facts and arguments presented is

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discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).

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III.

Having reviewed the objected to recommendations de novo, the Court finds that

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Discussion

the Magistrate Judge correctly concluded that Petitioner’s claims are time-barred.

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The writ of habeas corpus affords relief to persons in custody pursuant to the

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judgment of a State court in violation of the Constitution, laws, or treaties of the United

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States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).3 28 U.S.C. § 2244.

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The trial court sentenced Petitioner to serve the 28-year term consecutive to any
sentence currently being served (Doc. 16-1, Doc. T), which included a sentence of 10.5
year term of imprisonment received following an unrelated conviction in 1996 in
Maricopa County Superior Court Case No. CR 95-00235. (Doc. 16-1, Exhs. I, J.)
Petitioner does not challenge that conviction here.

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The AEDPA applies to federal habeas petitions filed after its effective date, April
24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).
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The AEDPA imposes a 1-year statute of limitations in which “a person in custody

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pursuant to the judgment of a State court” can file a federal petition for writ of habeas

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corpus. 28 U.S.C. § 2244(d)(1).

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A.

Commencement of Limitations Period

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Following a timely direct appeal, on January 29, 1999, the Arizona Court of

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Appeals issued a mandate affirming Petitioner’s 1997 conviction and sentence. (Doc. 16-

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1, Exh. Y.) Petitioner sought review by the Arizona Supreme Court, which was

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summarily denied on September 3, 1999. (Doc. 16-1, Exh. X.) Therefore, Petitioner’s

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judgment became final on December 2, 1999, when the time for filing a petition for writ

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of certiorari in the United States Supreme Court expired. See Porter v. Ollison, 620 F.3d

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952, 958-959 (9th Cir. 2010) (“When, on direct appeal, review is sought in the state’s

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highest court but no petition for certiorari to the United States Supreme Court is filed,

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direct review is considered to be final when the certiorari petition would have been due,

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which is 90 days after the decision of the state’s highest court.”). Therefore, absent any

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tolling, the one-year limitations period would have commenced the following day. See 28

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U.S.C. § 2244(d)(1)(A) (the 1-year limitations period runs from the date on which

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judgment became final by the conclusion of direct review or the expiration of the time for

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seeking such review).

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B.

Statutory Tolling of Limitations Period

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Petitioner properly filed a notice of post-conviction relief on September 24, 1999,

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which statutorily tolled the limitations period pursuant to 28 U.S.C. § 2244(d)(2). (Doc.

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16-1, Exh. Z, AA, EE.) Petitioner’s post-conviction relief proceedings remained pending

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until July 17, 2001, when the Arizona Court of Appeals denied review of the trial court’s

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dismissal of his post-conviction relief petition. (Doc. 16-1, Exhs. BB, CC and II.).

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Petitioner did not seek review of that ruling, and the limitations period therefore began to

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run the following day, expiring one year later on July 18, 2002. Approximately ten years

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later, Petitioner filed subsequent notices for post-conviction relief. (Doc. 16-1, Exhs. DD-

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GG.) Because those proceedings were commenced well after the limitations period had
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expired, they did not revive and toll the limitations period. See Jiminez v. Rice, 276 F.3d

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478, 482 (9th Cir. 2001) (once the AEDPA limitations period expires, a subsequently

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filed petition for post-conviction relief cannot restart the statute of limitations); Ferguson

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v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (state petition filed after the expiration of

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AEDPA’s one-year period does not revive a limitations period that ended before state

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petition was filed).

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C.

Equitable Tolling of Limitations Period

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The Magistrate Judge correctly found that Petitioner is not entitled to equitable

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tolling of the limitations period. Petitioner generally objects to the reasonableness of his

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sentence, but does not show that circumstances existed which prevented him from timely

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filing a federal habeas petition. See Holland v. Florida, 560 U.S. 631, 649 (2010) (“a

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petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his

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rights diligently, and (2) that some extraordinary circumstance stood in his way and

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prevented timely filing” his federal habeas petition) (internal quotations omitted).

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Therefore, because the instant habeas petition was not filed until 2014, more than a

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decade after the limitations period expired, and is not entitled to equitable tolling,

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Petitioner’s claims are untimely.

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D.

Exception to the Limitations Period

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Lastly, Petitioner does not demonstrate that the “fundamental miscarriage of

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justice exception” is applicable and compels review of his time-barred claims. “[A]n

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actual-innocence gateway claim” may serve as an exception to AEDPA’s limitations

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period. McQuiggin v. Perkins, 569 U.S. __, 133 S. Ct. 1924, 1928 (2013) (adopting

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Schlup v. Delo, 513 U.S. 298, 314-15 (1995), holding actual innocence is an exception to

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procedurally defaulted claims). This “fundamental miscarriage of justice exception” is

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applied in rare instances, and a “tenable actual-innocence gateway” claim will not be

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found unless the petitioner “persuades the district court that, in light of the new evidence,

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no juror, acting reasonably, would have voted to find him guilty beyond a reasonable

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doubt.” McQuiggin, 133 S. Ct. at 1928 (citing Schlup, 513 U.S. at 329). “To be credible,
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such a claim requires petitioner to support his allegations of constitutional error with new

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reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

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accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S.

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at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 133 S.

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Ct. at 1927 (explaining the significance of an “[u]nexplained delay in presenting new

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evidence”).

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Petitioner objects to the R&R on the basis that the fundamental miscarriage of

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justice exception entitles him to have the merits of his petition considered. He argues that

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when the trial court sentenced him to a consecutive, rather than concurrent, term of

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imprisonment, the terms of his 1996 plea agreement were breached, constituting plain

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error and justifying relief. While Petitioner’s arguments may challenge the inherent

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fairness of his sentence and the constitutional adequacy of the procedures that led to it, he

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does not argue or point to evidence of actual, factual innocence. Therefore, Petitioner has

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not shown that there is evidence of actual innocence such that the fundamental

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miscarriage of justice exception entitles him to review of his time-barred claims.

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IV.

Having reviewed the record as a whole, and finding Petitioner’s objections are

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Conclusion

without merit, the R&R will be adopted in full. Accordingly,

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IT IS ORDERED:

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1.

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accepted and adopted by the Court;
2.

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That Magistrate Judge Burn’s Report and Recommendation (Doc. 20) is

That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

(Doc. 1) is denied and dismissed with prejudice;
3.

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That a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because the dismissal of the Petition is justified by a plain

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

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4.

That the Clerk of Court shall terminate this action.

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Dated this 30th day of October, 2015.

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Honorable Steven P. Logan
United States District Judge

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