Love v. Escapule et al

Filing 16

ORDER - The Report and Recommendation (Doc. 14 ) is ADOPTED and the petition (Doc. 1 ) is DENIED. FURTHER ORDERED 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 3/3/16. (EJA)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Donald Love, No. CV-15-00924-PHX-ROS Petitioner, 10 11 v. 12 ORDER Laura Escapule, et al., 13 Respondents. 14 15 On November 30, 2015, Magistrate Judge Michelle H. Burns issued a Report and 16 Recommendation (“R&R”) addressing Petitioner Donald Love’s petition for a writ of 17 habeas corpus. The R&R recommended the petition be denied as untimely. Love filed 18 objections but, upon de novo review of the timeliness issue, the R&R’s conclusion is 19 correct. Therefore, the R&R will be adopted and the petition will be denied. BACKGROUND 20 21 The dates and events most relevant to the issue of timeliness are as follows. In 22 2008, Love was charged with various drug-related crimes. On September 29, 2009, Love 23 pled guilty to various crimes and was sentenced to more than fifteen years imprisonment. 24 (Doc. 11-13 at 62). Love filed a notice of post-conviction relief (“PCR”) on November 4, 25 2009. (Doc. 11-3 at 106). After numerous delays, Love filed a petition for post- 26 conviction relief on September 28, 2011.1 (Doc. 11-5 at 32). The state court treated that 27 1 28 The petition indicated it was provided to prison officials on July 31, 2011. (Doc. 11-5 at 58). Because the timeliness of that petition is not at issue here, the Court need not determine the precise filing date. 1 petition as timely. On March 5, 2012, the state court dismissed the petition.2 (Doc. 11-5 2 at 166). Shortly after that ruling, Love filed a “Motion to Expand Time to file Petition 3 for Review/Rehearing Pursuant to Ariz. R. Crim. P. 32.” (Doc. 11-5 at 168). The motion 4 sought “a minimum (30) thirty-day extension of time to file petition for review/rehearing 5 herein.” (Doc. 11-5 at 169). The motion indicated it was submitted to prison officials on 6 March 19, 2012, but it was not filed with the court until April 9, 2012. (Doc. 11-5 at 168, 7 170). According to Respondents, “[t]here is no indication that the trial court ever ruled 8 on this motion.” (Doc. 11 at 9). 9 Love seems to have taken no further action regarding his petition until 10 approximately two years later.3 On May 5, 2014, Love filed what he identified as a 11 second petition for post-conviction relief. (Doc. 11-7 at 19). A few weeks later, on May 12 22, 2014, Love filed a “Motion for Rehearing,” arguing the March 5, 2012 rejection of 13 his first petition had been incorrect. 14 explanation for the two-year delay. On June 12, 2014, the trial court dismissed Love’s 15 second petition. (Doc. 11-8 at 2). And on July 8, 2014, the trial court denied the motion 16 for rehearing. That denial, however, seems to have mixed up when the order denying the 17 first petition had been issued. (Doc. 11-7 at 2) (referring to “March 5, 2014 minute 18 entry” and claiming motion for rehearing was filed “more than two months after the Rule 19 32 proceeding was dismissed”). On August 7, 2014, Love filed a petition for special 20 action with the Arizona Court of Appeals, making the same arguments he presented in his 21 motion for rehearing regarding his first petition. (Doc. 11-11 at 2). The court of appeals 22 summarily dismissed the petition on August 12, 2014. (Doc. 11-13 at 2). And on 23 January 20, 2015, the Arizona Supreme Court denied review. (Doc. 11-13 at 23). (Doc. 11-6 at 2). That motion contained no 24 On May 21, 2015, Love filed this federal habeas petition. (Doc. 1). Respondents 25 filed a limited response, arguing the petition is time-barred or, in the alternative, all of 26 27 2 This order was filed on March 7, 2012. 28 3 Love filed two “notices” in the interim that are not relevant here. (Doc. 11-7 at 4). -2- 1 Love’s claims were procedurally defaulted. 2 Respondents’ view of the sequence of events and concluded “Petitioner’s case became 3 final on April 4, 2012, the day the time expired for filing a petition for review in the 4 Arizona Court of Appeals of the March 5, 2012 denial of his of-right PCR petition.” 5 (Doc. 14 at 11). 6 concluding his petition was, in fact, timely. 7 (Doc. 11 at 2). The R&R adopted Love filed objections but did not clearly identify any basis for ANALYSIS 8 The R&R accurately sets forth the manner in which the federal limitations period 9 must be calculated. In brief, Love had one year after his convictions became final to file 10 his federal petition. Love’s convictions became final on April 4, 2012, the day his time 11 expired for seeking review in the Arizona Court of Appeals of the March 5, 2012 denial 12 of his of-right PCR petition. Love did not file his federal petition until May 2015, well 13 outside the one-year period. Love has not provided any plausible basis for finding either 14 statutory or equitable tolling of this time period, meaning his federal petition is untimely. 15 The only slight complication in this time calculation is that it ignores Love’s 16 petition for rehearing filed shortly after the March 5, 2012 denial of his of-right PCR 17 petition. Under Arizona law, Love had fifteen days to seek rehearing of that denial. 18 Ariz. R. Crim. P. 32.9(a). Love submitted a motion for an extension of that fifteen day 19 period dated March 19, 2012. That motion was not filed with the court until April 9, 20 2012. Respondents and the R&R use the filing date and claim the motion was untimely. 21 But the mailbox rule presumably would apply. Cf. Mayer v. State, 908 P.2d 56, 58 (Ariz. 22 Ct. App. 1995) (“[A] notice of appeal by a pro se prisoner is deemed filed when it is 23 properly addressed and delivered to prison authorities for forwarding to the clerk of the 24 superior court.”). Thus, the motion likely was timely. However, whether the motion was 25 timely submitted or not is immaterial because the state court never ruled on it. Pursuant 26 to Arizona law, “[a] motion that is not ruled on is deemed denied by operation of law.” 27 State v. Hill, 848 P.2d 1375, 1385 (Ariz. 1993). Accordingly, the motion for extension of 28 time was denied and Love had fifteen days to submit a motion for rehearing. He did not -3- 1 do so nor did he seek review from the Arizona Court of Appeals within the thirty days 2 allowed for doing so. Ariz. R. Crim. P. 32.9(c). Love did not submit his motion for 3 rehearing until approximately two years later. In that intervening two-year period, the 4 deadline for him to seek review by the Arizona Court of Appeals expired as did his 5 deadline to file his federal habeas petition. Thus, even assuming Love’s request for 6 additional time was timely submitted, his federal petition is still untimely and must be 7 denied.4 8 Accordingly, 9 IT IS ORDERED the Report and Recommendation (Doc. 14) is ADOPTED and 10 the petition (Doc. 1) is DENIED. 11 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed 12 in forma pauperis on appeal are DENIED because the dismissal of the petition is justified 13 by a plain procedural bar and jurists of reason would not find the procedural ruling 14 debatable. 15 Dated this 3rd day of March, 2016. 16 17 18 Honorable Roslyn O. Silver Senior United States District Judge 19 20 21 22 23 24 25 26 4 27 28 In his objections to the R&R, Love argues he is entitled to equitable tolling. (Doc. 15 at 6). But to be entitled to equitable tolling, Love would have to establish he was pursuing his rights diligently and some “extraordinary circumstances stood in his way” such that he could not timely file his petition. Holland v. Florida, 560 U.S. 631, 649 (2010). Love has not made a showing of either requirement. -4-

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