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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Kenneth Clyde Grindley, 9 10 Petitioner, vs. 11 12 Charles L. Ryan, et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-14-00363-PHX-SPL ORDER 15 Petitioner Kenneth Clyde Grindley, who is confined in the Arizona State Prison 16 Complex-Florence, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 17 U.S.C. § 2254 (Doc. 1). The Honorable Michelle H. Burns, United States Magistrate 18 Judge, issued a Report and Recommendation (“R&R”) (Doc. 20), recommending that the 19 petition be denied, and Petitioner objected to the R&R (Doc. 23). For the following 20 reasons, the Court accepts and adopts the R&R, and denies the petition. 21 I. Background 22 In 1994, Petitioner was indicted in the Maricopa County Superior Court, Case No. 23 CR 94-09172, of two counts of aggravated assault of peace officers, both dangerous 24 offenses. (Doc. 16-1, Exh. A.)1 Petitioner was convicted by a jury, but that conviction 25 was subsequently reversed on appeal. (Doc. 16-1, Exhs. D, M.) Petitioner was tried again 26 and convicted of one count of aggravated assault on October 16, 1997. He was sentenced 27 1 28 The Court assumes the parties’ familiarity with underlying facts of conviction which, for the reasons below, need not be reached on habeas review. 1 to an aggravated 28-year term of imprisonment on November 17, 1997. (Doc. 16-1, Exhs. 2 Q-T.)2 3 On February 24, 2014, Petitioner filed the instant Petition for Writ of Habeas 4 Corpus in federal court, raising two claims for relief. (Doc. 1.) Respondents filed an 5 Answer (Doc. 16) in which they argue that the petition should be dismissed as untimely, 6 and alternatively, that Petitioner’s claims are procedurally defaulted and barred from 7 federal habeas corpus review. 8 II. Standard of Review 9 The Court may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1). The Court 11 must undertake a de novo review of those portions of the R&R to which specific 12 objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. Reyna–Tapia, 328 13 F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled as of right to de 14 novo review of evidence and arguments raised for the first time in an objection to the 15 R&R, and whether the Court considers the new facts and arguments presented is 16 discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000). 17 III. Having reviewed the objected to recommendations de novo, the Court finds that 18 19 Discussion the Magistrate Judge correctly concluded that Petitioner’s claims are time-barred. 20 The writ of habeas corpus affords relief to persons in custody pursuant to the 21 judgment of a State court in violation of the Constitution, laws, or treaties of the United 22 States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the 23 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).3 28 U.S.C. § 2244. 24 2 25 26 27 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. 3 28 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). 2 1 The AEDPA imposes a 1-year statute of limitations in which “a person in custody 2 pursuant to the judgment of a State court” can file a federal petition for writ of habeas 3 corpus. 28 U.S.C. § 2244(d)(1). 4 A. Commencement of Limitations Period 5 Following a timely direct appeal, on January 29, 1999, the Arizona Court of 6 Appeals issued a mandate affirming Petitioner’s 1997 conviction and sentence. (Doc. 16- 7 1, Exh. Y.) Petitioner sought review by the Arizona Supreme Court, which was 8 summarily denied on September 3, 1999. (Doc. 16-1, Exh. X.) Therefore, Petitioner’s 9 judgment became final on December 2, 1999, when the time for filing a petition for writ 10 of certiorari in the United States Supreme Court expired. See Porter v. Ollison, 620 F.3d 11 952, 958-959 (9th Cir. 2010) (“When, on direct appeal, review is sought in the state’s 12 highest court but no petition for certiorari to the United States Supreme Court is filed, 13 direct review is considered to be final when the certiorari petition would have been due, 14 which is 90 days after the decision of the state’s highest court.”). Therefore, absent any 15 tolling, the one-year limitations period would have commenced the following day. See 28 16 U.S.C. § 2244(d)(1)(A) (the 1-year limitations period runs from the date on which 17 judgment became final by the conclusion of direct review or the expiration of the time for 18 seeking such review). 19 B. Statutory Tolling of Limitations Period 20 Petitioner properly filed a notice of post-conviction relief on September 24, 1999, 21 which statutorily tolled the limitations period pursuant to 28 U.S.C. § 2244(d)(2). (Doc. 22 16-1, Exh. Z, AA, EE.) Petitioner’s post-conviction relief proceedings remained pending 23 until July 17, 2001, when the Arizona Court of Appeals denied review of the trial court’s 24 dismissal of his post-conviction relief petition. (Doc. 16-1, Exhs. BB, CC and II.). 25 Petitioner did not seek review of that ruling, and the limitations period therefore began to 26 run the following day, expiring one year later on July 18, 2002. Approximately ten years 27 later, Petitioner filed subsequent notices for post-conviction relief. (Doc. 16-1, Exhs. DD- 28 GG.) Because those proceedings were commenced well after the limitations period had 3 1 expired, they did not revive and toll the limitations period. See Jiminez v. Rice, 276 F.3d 2 478, 482 (9th Cir. 2001) (once the AEDPA limitations period expires, a subsequently 3 filed petition for post-conviction relief cannot restart the statute of limitations); Ferguson 4 v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (state petition filed after the expiration of 5 AEDPA’s one-year period does not revive a limitations period that ended before state 6 petition was filed). 7 C. Equitable Tolling of Limitations Period 8 The Magistrate Judge correctly found that Petitioner is not entitled to equitable 9 tolling of the limitations period. Petitioner generally objects to the reasonableness of his 10 sentence, but does not show that circumstances existed which prevented him from timely 11 filing a federal habeas petition. See Holland v. Florida, 560 U.S. 631, 649 (2010) (“a 12 petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his 13 rights diligently, and (2) that some extraordinary circumstance stood in his way and 14 prevented timely filing” his federal habeas petition) (internal quotations omitted). 15 Therefore, because the instant habeas petition was not filed until 2014, more than a 16 decade after the limitations period expired, and is not entitled to equitable tolling, 17 Petitioner’s claims are untimely. 18 D. Exception to the Limitations Period 19 Lastly, Petitioner does not demonstrate that the “fundamental miscarriage of 20 justice exception” is applicable and compels review of his time-barred claims. “[A]n 21 actual-innocence gateway claim” may serve as an exception to AEDPA’s limitations 22 period. McQuiggin v. Perkins, 569 U.S. __, 133 S. Ct. 1924, 1928 (2013) (adopting 23 Schlup v. Delo, 513 U.S. 298, 314-15 (1995), holding actual innocence is an exception to 24 procedurally defaulted claims). This “fundamental miscarriage of justice exception” is 25 applied in rare instances, and a “tenable actual-innocence gateway” claim will not be 26 found unless the petitioner “persuades the district court that, in light of the new evidence, 27 no juror, acting reasonably, would have voted to find him guilty beyond a reasonable 28 doubt.” McQuiggin, 133 S. Ct. at 1928 (citing Schlup, 513 U.S. at 329). “To be credible, 4 1 such a claim requires petitioner to support his allegations of constitutional error with new 2 reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 3 accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. 4 at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 133 S. 5 Ct. at 1927 (explaining the significance of an “[u]nexplained delay in presenting new 6 evidence”). 7 Petitioner objects to the R&R on the basis that the fundamental miscarriage of 8 justice exception entitles him to have the merits of his petition considered. He argues that 9 when the trial court sentenced him to a consecutive, rather than concurrent, term of 10 imprisonment, the terms of his 1996 plea agreement were breached, constituting plain 11 error and justifying relief. While Petitioner’s arguments may challenge the inherent 12 fairness of his sentence and the constitutional adequacy of the procedures that led to it, he 13 does not argue or point to evidence of actual, factual innocence. Therefore, Petitioner has 14 not shown that there is evidence of actual innocence such that the fundamental 15 miscarriage of justice exception entitles him to review of his time-barred claims. 16 IV. Having reviewed the record as a whole, and finding Petitioner’s objections are 17 18 Conclusion without merit, the R&R will be adopted in full. Accordingly, 19 IT IS ORDERED: 20 1. 21 accepted and adopted by the Court; 2. 22 23 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. 24 That a Certificate of Appealability and leave to proceed in forma pauperis 25 on appeal are denied because the dismissal of the Petition is justified by a plain 26 procedural bar and jurists of reason would not find the procedural ruling debatable; and 27 /// 28 /// 5 1 4. That the Clerk of Court shall terminate this action. 2 Dated this 30th day of October, 2015. 3 4 5 Honorable Steven P. Logan United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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