Blackwater v. Ryan et al

Filing 16

ORDER ADOPTING 12 Report and Recommendation and Petitioner's Objections, (Doc. 13 ), are overruled. Petitioner's Petition for Writ of Habeas Corpus, (Doc. 1 ), is denied and dismissed with prejudice, and the Clerk shall enter judgme nt. The Court denies issuance of a Certificate of Appealability because dismissal of the Petition is based on a plain procedural bar, and jurists of reason would not find this Court's procedural ruling debatable. Signed by Senior Judge James A Teilborg on 7/21/15. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nicholas Lew Blackwater,
Petitioner,

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ORDER

v.

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No. CV-14-01533-PHX-JAT

Charles L. Ryan, et al.,

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Respondents.

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Pending before this Court is Nicholas Blackwater’s (“Petitioner”) Petition for Writ

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of Habeas Corpus (“Petition”). (Doc. 1.) The Magistrate Judge issued a Report and

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Recommendation (“R&R”) recommending that the Petition be denied and dismissed with

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prejudice because the one year statute of limitations established by the Anti-Terrorism

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and Effective Death Penalty Act (“AEDPA”) has expired. (Doc. 12 at 13.) The R&R

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further recommended that a Certificate of Appealability be denied. (Id.)

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I.

REVIEW OF AN R&R

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After receiving an R&R, the Court “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.

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§ 636(b)(1).

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recommendations de novo if objection is made.” United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not

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required to conduct “any review at all . . . of any issue that is not the subject of an

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28

A district judge “must review the magistrate judge’s findings and

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U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of

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the [report and recommendation] to which objection is made”). In this case, Petitioner

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filed Objections to the R&R and the Court will review Petitioner’s Objections de novo.

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(Doc. 13.)

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II.

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On July 1, 2005, a Maricopa County Grand Jury indicted Petitioner on 14 felony

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Counts. (Doc. 7-1 at 1-8.) The facts underlying Petitioner’s indictment are as follows: on

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multiple occasions, Petitioner picked up women in his car, took them to a remote location

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and raped them, in some instances threatening them with a knife. (Id. at 21-24.) These

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events occurred on June 16, 1997, August 28 or 29, 1997, June 22, 1999, and October 26,

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2001. (Id.) On July 30, 2000, another woman claimed that Petitioner raped her; however,

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officers had no means of contacting the victim after the initial police report. (Doc. 12 at

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4.)

FACTUAL AND PROCEDURAL BACKGROUND

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On February 22, 2006, Petitioner entered a plea agreement. (Doc. 7-1 at 11-16.)

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He pleaded guilty to: Counts 4, 9, and 14 as charged, sexual assault, class 2 felonies;

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Count 5 as charged, kidnapping, a class 2 felony; Count 3 as charged, sexual abuse, a

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class 5 felony; and Count 6 as amended, attempted sexual assault, a class 3 felony. (Id.)

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In exchange, the State agreed to dismiss Counts 1, 2, 7, 8, 10, 11, 12, and 13; the

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allegations of dangerousness, and not to file charges from the offense on July 30, 2000.

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(Id.) On March 23, 2006, Petitioner was sentenced to an aggravated term of 14 years of

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imprisonment on Count 4; to an aggravated term of 12.5 years of imprisonment on Count

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5, to be served consecutively to Count 4; to an aggravated term of 14 years of

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imprisonment on Count 9, to be served consecutively to Count 5; to an aggravated term

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of 14 years of imprisonment on Count 14, to be served consecutively to Count 9. (Doc. 7-

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1 at 40-46.) Petitioner was also placed on lifetime probation for Counts 3 and 6, to

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commence upon discharge from prison for each separate offense in Counts 4, 5, 9, and 14

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(Id.)

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On March 23, 2006, Petitioner was sentenced and signed a notice of rights. (Doc.

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7-1 at 47-49.) The notice of rights explained that by entering into a plea agreement,

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Petitioner waived his right to appeal, and a notice of post-conviction relief must be filed

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“within 90 days of the entry of judgment,” otherwise he “may never have another

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opportunity to have any errors made in [his] case corrected by another court.” (Id.)

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Petitioner claims he is unhappy with his sentence, it was not part of his plea agreement,

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and he is entitled to post-conviction relief. (Doc. 1 at 6-9.) Petitioner also claims that he

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asked his attorney to file a notice of post-conviction relief, which his attorney failed to

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do. (Doc. 13 at 1-3.)

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On April 6, 2007, 379 days after Petitioner was sentenced, Petitioner filed a notice

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of post-conviction relief, which was dismissed by the state court as untimely. (Doc. 7-1 at

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50-54.) On both August 20, 2008, and February 20, 2009, Petitioner filed a request for

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status of defendant’s post-conviction relief. (Doc. 7-1 at 57-61.) Petitioner was provided

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with a copy of a minute entry denying his petition for post-conviction relief as untimely.

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(Doc. 7-1 at 62-63.) On November 16, 2010, Petitioner filed a second petition for post-

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conviction relief, which was also dismissed by the state court as untimely. (Doc. 7-1 at

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64-75.) On March 6, 2012, Petitioner filed a third petition for post-conviction relief,

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which the state court dismissed as untimely as well. (Doc. 7-1 at 86-114.)

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After all of his petitions for post-conviction relief were denied by the state court,

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Petitioner filed his Petition for Writ of Habeas Corpus in this Court on July 8, 2014.

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(Doc. 1.)

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III.

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As stated above, the Magistrate Judge issued an R&R recommending that the

GOVERNING LAW AND RECOMMENDATION

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Petition be denied and dismissed with prejudice. (Doc. 12.)

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Magistrate Judge, a state prisoner has one year from the time a sentence becomes final to

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file a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). Under

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Arizona Rule of Criminal Procedure 32 (“Rule 32”), a petition for post-conviction relief

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is a form of direct review for defendants who entered guilty pleas. Summers v. Schriro,

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481 F.3d 710, 711 (9th Cir. 2007). A conviction becomes final under Rule 32 once an

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As explained by the

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“of-right” proceeding is completed; or the time to file a petition for post-conviction relief

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expires. Id. The Magistrate Judge found that Petitioner did not file a petition for post-

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conviction relief within the ninety day deadline set by Rule 32. (Doc. 12 at 13.)

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Therefore, Petitioner’s AEDPA statute of limitations began to run when that ninety day

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period expired. (Id.)

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The Magistrate Judge explained that the statute of limitations is generally tolled

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after an individual properly files a notice of post-conviction relief. (Doc. 12 at 10.) The

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time during which a case is pending1 is not counted against the petitioner’s federal habeas

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statute of limitations, and the petitioner is entitled to statutory tolling. See Lott v. Mueller,

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304 F.3d 918, 921 (9th Cir. 2002). When a petition for post-conviction relief is not filed

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within the state court’s time limit, that petition is not considered to be properly filed.

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Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). If a petition is not properly filed, that

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petitioner is not entitled to statutory tolling. Id.

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Under Rule 32, once post-conviction relief is concluded, the statute of limitations

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under the AEDPA begins to run. Summers, 481 F.3d at 710. For example, if two

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petitions for post-conviction relief are denied, the time between those two petitions for

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post-conviction relief does not toll the statute of limitations since no petition is

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“pending.” Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2004). Additionally, the

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Magistrate Judge noted that filing a new petition for post-conviction relief does not hit a

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reset button on a statute of limitations that has already run before the new petition was

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filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

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Alternatively, if a petitioner is able to show that: (1) he or she has been pursuing

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his or her rights diligently; and, (2) that some extraordinary circumstances prevented the

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petitioner from timely filing, he or she may be entitled to equitable tolling. Holland v.

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Florida, 560 U.S. 631, 645 (2010) (quoting Pace, 544 U.S. at 418). The Ninth Circuit

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Court of Appeals has held that an extraordinary circumstance must be beyond the

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A petition is pending after it is properly filed in state court, but before that court
grants or denies the petition. Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004).
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Petitioner’s control and make it impossible for the Petitioner to file a petition for post-

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conviction relief on time. Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.

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1996).

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The Magistrate Judge concludes that Petitioner’s Petition is untimely. (Doc. 12

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at 11.) The ninety day time limit to file for post-conviction relief ran in state court on

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June 21, 2006 and the AEDPA statute of limitations began to run the next day. (Id.)

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According to the Magistrate Judge, the statute of limitations expired one year later, on

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June 21, 2007. (Id.) Petitioner filed his Petition in this Court on July 8, 2014. (Id.) Thus,

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unless Petitioner is able to show that the statute of limitations should have been tolled, his

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Petition is more than seven years late. (Id.)

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The Magistrate Judge found that Petitioner is not entitled to statutory or equitable

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tolling. (Id.) The Magistrate Judge found that the untimely notice of post-conviction

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relief was not properly filed and that it did not prompt statutory tolling to the statute of

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limitations. (Id. at 12.) Additionally, the Magistrate Judge found that Petitioner has not

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given any valid reason for the untimeliness of his Petition, and that he is not entitled to

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any equitable tolling. (Id. at 13.) The Magistrate Judge concluded that the Petition was

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filed seven years after the one year statute of limitations period expired. (Id. at 11.)

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IV.

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Petitioner argues that the State obstructed his right to post-conviction relief by

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denying him counsel and violating his Sixth Amendment rights. (Doc. 13 at 1-2.) He

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claims that due to this obstruction, he is entitled to equitable tolling. (Id. at 2.) Petitioner

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further claims that he did not waive his appellate rights. (Id. at 3-4.) He claims that

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because he was denied counsel, he could not have waived his right to appeal. (Id.)

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Lastly, Petitioner claims that his sentence was “28.5 years above the statutory

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maximum.” (Id. at 4.)

PETITIONER’S OBJECTIONS

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In addition to the plea agreement, Petitioner signed a notice of rights of review.

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(Doc. 7-1 at 48.) This notice explained that by signing a plea agreement, he waived his

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right to appeal, and could only pursue his rights through post-conviction relief. (Id.) The

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notice of rights of review explained in bold letters that Defendant had ninety days from

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his sentencing to petition for post-conviction relief. (Id.) Petitioner signed the document

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on March 23, 2006. (Id.)

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The Court will review all of Petitioner’s Objections to the R&R de novo.

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A.

STATE OBSTRUCTION

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Petitioner claims that he requested his counsel file a notice of post-conviction

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relief immediately after his sentence, but counsel did not do so. (Doc. 13 at 2.) After

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waiting one year and not hearing a response, Petitioner filed a notice of post-conviction

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relief himself on April 6, 2007. (Doc. 7-1 at 50-54.) Petitioner claims that he acted

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diligently, and his notice of post-conviction relief is not untimely due to the impediment

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created by the State; specifically that his counsel did not file his notice of post-conviction

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relief. (Doc. 13 at 3.) Petitioner claims that his state court remedies were not exhausted

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until recently and thus, the statute of limitations had not passed. (Id.) Alternatively,

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Petitioner claims he is entitled to tolling due to his counsel’s failure to file a notice of

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post-conviction relief. (Id. at 2.)

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Petitioner’s attorney was not acting on behalf of the State; thus, his attorney is not

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a state impediment to Petitioner’s ability to file a notice of post-conviction relief.

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Petitioner’s Sixth Amendment rights to counsel were not violated.

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provided counsel who assisted him in obtaining a plea bargain. Generally, a prisoner

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does not have a Constitutional right to counsel on collateral review. Lawrence v. Florida,

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549 U.S. 327, 337 (2007). Petitioner did not have a right to have his trial counsel file his

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petition for post-conviction relief; thus, Petitioner’s Sixth Amendment rights were not

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violated when Petitioner’s trial counsel neglected to file a notice of post-conviction

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relief.2

Petitioner was

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Petitioner cites to a Ninth Circuit Court of Appeals case in which a petition for

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writ of habeas corpus by an individual who claimed ineffective assistance of counsel was

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For purposes of this Order, the Court has accepted Petitioner’s claim that he
asked his trial counsel to file his notice of post-conviction relief as true.
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reviewed on the merits. United States v. Sandoval-Lopez, 409 F.3d 1193, 1196 (9th Cir.

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2005). In Sandoval-Lopez, the petitioner did not file an untimely petition for writ of

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habeas corpus, which is why his petition was considered on the merits. Id. at 1197. In

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this case, however, Petitioner’s Petition was filed over one year after his conviction

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became final in state court and is barred by the statute of limitations.

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In his Objections, Petitioner argues that he is entitled to equitable tolling because

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he has proved that he: (1) has pursued his rights diligently; and, (2) that an extraordinary

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circumstance stood in his way and prevented him from timely filing. See Holland, 560

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U.S. at 645; (Doc. 13 at 3.) Regardless of whether Petitioner was pursuing his rights

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diligently, there is no evidence of an extraordinary circumstance beyond Petitioner’s

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control preventing him from filing his Petition earlier. Although Petitioner claims that

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counsel was asked to file a petition for post-conviction relief and did not, Petitioner has

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shown nothing that prevented him from filing his petition for post-conviction relief

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sooner himself. Thus, Petitioner is not entitled to equitable tolling of the statute of

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limitations for his federal habeas Petition.

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Even if this Court granted Petitioner equitable tolling and the statute of limitations

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had not begun to run on the ninetieth day after his sentencing, his Petition for Writ of

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Habeas Corpus in this Court was still filed late. In other words, if this Court gave

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Petitioner the benefit of his late notice of post-conviction relief, that notice was denied on

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April 24, 2007. (Doc. 7-1 at 56.)

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limitations to file his Petition for Writ of Habeas Corpus began to run.

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circumstance, the statute of limitations expired on April 24, 2008. Petitioner’s Petition

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was not filed in this Court until July 18, 2014, making it untimely.

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B.

Thus, on April 24, 2007, Petitioner’s statute of
In that

RIGHT TO APPEAL

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Petitioner claims that he never waived his right to appeal in state court. (Doc. 13 at

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3.) In signing his plea agreement, Petitioner explicitly waived his right to appeal. (Doc.

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7-1 at 11-16.) Petitioner had a right to trial, but he chose to enter into a plea agreement

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and waived his right to appeal in the process. (Id. at 48.) Petitioner cannot revoke the

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waiver to which he had agreed. United States v. Michelson, 141 F.3d 867, 872 (8th Cir.

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1998). In order to preserve the value of the waiver in a plea agreement, that waiver must

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be upheld. Id. at 873. If a defendant could retract his or her waiver, a plea agreement

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would become an empty promise. Id. After waiving his right to appeal, Petitioner’s only

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remedy was to file a notice of post-conviction relief within ninety days of his sentencing,

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which Petitioner failed to do.

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C.

SENTENCING

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Petitioner claims that his sentence was illegal, and that he was sentenced to twenty

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eight and a half years beyond the maximum sentence allowed. (Doc. 13 at 3.) Petitioner

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would have had to raise that issue at the time of sentencing or in his notice of post-

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conviction relief. Petitioner’s sentence length does not change the fact that his Petition

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for Writ of Habeas Corpus must be filed within the one year statute of limitations set

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forth by the AEDPA. Once Petitioner’s ninety days to file a notice for post-conviction

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relief had passed, on June 21, 2006, Petitioner’s conviction was final and Petitioner had

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one year to Petition for Writ of Habeas Corpus. Therefore, the Court will not reach the

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merits of this Claim.

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V.

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Based on the foregoing,

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IT IS ORDERED that the Report and Recommendation, (Doc. 12), is accepted

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and adopted and Petitioner’s Objections, (Doc. 13), are overruled. Petitioner’s Petition

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for Writ of Habeas Corpus, (Doc. 1), is denied and dismissed with prejudice, and the

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Clerk of the Court shall enter judgment accordingly.

CONCLUSION

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IT IS FURTHER ORDERED that the Court denies issuance of a Certificate of

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Appealability because dismissal of the Petition is based on a plain procedural bar, and

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jurists of reason would not find this Court’s procedural ruling debatable.

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Dated this 21st day of July, 2015.

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