Parker v. Ryan et al

Filing 54

ORDER ADOPTING REPORT AND RECOMMENDATION: the Report and Recommendation 52 is accepted and adopted as stated in this order; Petitioner's objections 53 are overruled; Petitioner's Motion for Release Pending Review of Court's Decisi on and Recommendation 50 is denied; the claims in the Petition are dismissed as specified in the Report and Recommendation 52 ; the Clerk shall enter judgment accordingly; in the event Petitioner files an appeal, a Certificate of Appealability is denied because, to the extent the Petition was dismissed, such dismissal was based on a plain procedural bar and jurists of reason would not find this Court's procedural rulings debatable or wrong. Signed by Senior Judge James A Teilborg on 8/8/16. (REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Willie Lee Parker, Petitioner, 10 11 ORDER v. 12 No. CV-15-01130-PHX-JAT Charles L Ryan, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus 16 (“Petition”), (Doc. 1), and Motion for Release Pending Review of Court’s Decision and 17 Recommendation (“Motion for Release”), (Doc. 50). On June 8, 2016, the Magistrate 18 Judge to whom this case was assigned issued a Report and Recommendation (“R&R”) 19 recommending that the Petition and the Motion for Release be denied. (Doc. 52). 20 Petitioner subsequently filed a “Motion to Object to Doc (52) to Dismiss Petitioner[’]s 21 Petition, and Responsed [sic] with Proffer Authority” (“Motion to Object”) on June 22, 22 2016. (Doc. 53).1 The Court now rules on Petitioner’s Petition and Motion for Release. 23 I. Legal Standard 24 The Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 26 the district judge must review the magistrate judge’s findings and recommendations de 27 28 1 Although entitled as a motion, the Court construes this filing as Petitioner’s objections to the R&R. 1 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 2 1114, 1121 (9th Cir. 2003) (en banc); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 3 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review 4 of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 5 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 6 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate 7 Judge’s] recommendations to which the parties object”). District courts are not required 8 to conduct “any review at all . . . of any issue that is not the subject of an objection.” 9 Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) (“[T]he court 10 shall make a de novo determination of those portions of the [report and recommendation] 11 to which objection is made.”). Thus, the Court will review de novo the portions of the 12 R&R to which Petitioner objected. 13 II. Petition 14 At page 9, the R&R discusses the statute of limitations applicable to federal 15 habeas petitions brought pursuant to 28 U.S.C. § 2254. The Court adopts this statement of 16 the governing law. 17 The R&R then applies the controlling law and determines that Petitioner’s Petition 18 must be dismissed with prejudice because it was filed more than three years after the 19 statute of limitations had expired. (Doc. 52 at 9–24). In reaching this conclusion, the 20 R&R reviews whether statutory tolling is applicable, (id. at 12); and whether equitable 21 tolling applies due to Petitioner’s pro se status, Petitioner’s allegation of ineffective 22 assistance of counsel, the state court’s delay in ruling on Petitioner’s motion to extend 23 time to file his notice of post-conviction relief (“PCR”), and Petitioner’s argument that he 24 was required to exhaust his state remedies before filing his habeas petition in federal 25 court, (id. at 12–15). The R&R also reviews Petitioner’s claim of actual innocence under 26 the standards set forth in Schlup v. Delo, 513 U.S. 298 (1995). (Id. at 15–24). The R&R 27 concludes that none of these issues prevents the statute of limitations from barring 28 Petitioner’s Petition. (Id. at 24). -2- 1 In his Motion to Object, Petitioner does not expressly object to any particular 2 finding of the R&R. See (Doc. 53). Rather, the only reference to any “objection” in the 3 Motion to Object is the comment that “Petitioner object [sic] to the Court’s 4 recommendation to dismiss the Petition with prejudice, of petitioners [sic] claims.” (Id. at 5 9). Beyond this cursory statement, the Motion to Object simply reasserts that Petitioner is 6 innocent and reviews the state court’s delay in ruling on Petitioner’s motion for a time 7 extension. (Id. at 1–7). Although Petitioner does not expressly state that he objects to the 8 R&R’s findings on these issues, because Petitioner is an incarcerated, pro se litigant, the 9 Court will construe his arguments regarding these two issues as objections. Nonetheless, 10 because Petitioner does not object to or discuss any other portion of the R&R in his 11 Motion to Object, see (id.), the Court accepts and adopts the R&R’s findings regarding 12 the commencement of the statute of limitations time period, (Doc. 52 at 9–10); the 13 mailbox rule, (id. at 11); statutory tolling, (id. at 12); and equitable tolling as to 14 Petitioner’s pro se status, allegation of ineffective assistance of counsel, and exhaustion, 15 (id. at 12–15). The Court will now review de novo the two issues discussed in Petitioner’s 16 Motion to Object: (1) the state court’s delay in ruling on Petitioner’s time extension 17 motion and (2) Petitioner’s claim of actual innocence. 18 A. 19 Pursuant to Arizona Rule of Criminal Procedure 32.4, Petitioner was required to 20 file a notice of PCR within ninety days of being sentenced by the Arizona state court. 21 Eighty-seven days after Petitioner was sentenced, he filed a “Motion for Extension of 22 Time to File Rule 32,” seeking an unspecified extension of time to file a notice of PCR. 23 When filing his motion for a time extension, Petitioner claims that he relied on the 24 “Arizona Constitution & U.S. Constitutional Amendment, Art 6. Sub. 21, [which] says 25 ‘every matter submitted to a judge of the superior court for his decision shall be decided 26 within (sixty days) from the date of submission thereof.’” (Doc. 53 at 1) (parenthesis in 27 original). The state court did not rule on Petitioner’s motion before the ninety day period 28 lapsed. One-hundred and fifty-three days after being sentenced, Petitioner filed a notice Motion for Time Extension -3- 1 of PCR. According to Petitioner, because the state court did not promptly grant 2 Petitioner’s motion for a time extension, that “caus[ed] Petitioner[’]s PCR to be late, as if 3 it was done ‘egregiously.’” (Id.) 4 When determining whether the statute of limitations should be equitably tolled, the 5 R&R considers the state court’s delay in ruling on Petitioner’s motion for an extension of 6 time. (Doc. 52 at 13–14). The R&R explains that there is no substantive or procedural 7 guarantee that an eleventh hour time extension motion will be ruled upon before an 8 impending deadline and concludes that Petitioner bore the risk of filing such a late 9 motion. (Id.) The R&R further finds that there is no evidence that Petitioner was 10 prevented from filing his notice on time. (Id.) Consequently, the R&R determines that the 11 trial court’s delay in ruling on the motion was not an extraordinary circumstance 12 warranting equitable tolling. (Id.) 13 The Court agrees with the R&R that the state court’s delay in ruling on 14 Petitioner’s last minute motion for a time extension was not an extraordinary 15 circumstance that justifies equitable tolling. There is no evidence indicating that 16 Petitioner was prohibited or prevented from filing his PCR notice within ninety days of 17 his sentence. Further, as detailed by the R&R, Petitioner did not exhibit diligence by 18 filing his notice within the un-extended deadline. In any event, even if Petitioner did in 19 fact rely on subsection 21 of article 6 of the Arizona Constitution, he still acted in a 20 dilatory manner. Namely, Petitioner waited over 150 days after his sentence to file a 21 notice of PCR, more than three years to file a federal habeas petition after the state court 22 deemed his notice untimely, and over sixteen months after the Arizona Court of Appeals 23 affirmed the trial court’s decision that the notice was untimely. Accordingly, to the extent 24 Petitioner objected to this portion of the R&R, his objection is overruled. 25 B. 26 Within a span of eight months, Petitioner was detained on three separate instances 27 for driving under the influence (“DUI”). Petitioner ultimately pled guilty to one count of 28 aggravated DUI for each occurrence. As recounted by the R&R, the counts were Actual Innocence -4- 1 aggravated because Petitioner “committed each DUI while his driver’s license or 2 privilege to drive was suspended, canceled, revoked, or refused, or while a restriction was 3 placed on his license as a result of a prior DUI.” (Doc. 52 at 2) (citation omitted). The 4 suspended license was issued to one “Maurice Davis.” Fingerprint analysis conducted by 5 the Phoenix Police Department confirmed with 100% certainty that Petitioner was issued 6 the suspended “Maurice Davis” driver’s license. 7 Petitioner asserts that he possessed a valid driver’s license in his name, Willie Lee 8 Parker, at the time of two of the three DUIs. (Doc. 53 at 4–5). Petitioner argues that he 9 “NEVER obtained a driver[’]s license in the name Maurice Davis, and stand by a resolute 10 to that avouch [sic].” (Id. at 4). According to Petitioner, “fingerprints [sic] analysis is not 11 a drivers [sic] license.” (Id. at 6). Petitioner asserts that he is not Maurice Davis because 12 his birth date and social security number are different than that of Maurice Davis. (Id. at 13 4). Petitioner states that if the Government “could produce that drivers [sic] license of 14 Maurice Davis it would destroy Petitioners [sic] [‘factual innocence’] of his claim.” (Id. 15 at 6) (brackets in original). Petitioner suggests that the Government should “compare 16 Maurice Davis driving license (made up) profile to Petitioner’s exibit [sic] 1 and prove 17 [sic] a photo link to Petitioner and Maurice Davis driving no. (B12374523).” (Id. at 6). 18 Consequently, Petitioner asserts that he is being held unconstitutionally because his “real 19 offense” is a misdemeanor, not aggravated DUI. (Id.) 20 Although it appears that a driver’s license issued to “Willie Lee Parker” was valid 21 at the time of two of the DUIs, fingerprint analysis conducted by the Phoenix Police 22 Department established with a “0% chance of error” that Petitioner was previously issued 23 a driver’s license using the alias Maurice Davis. (Docs. 42 at 20; 42-2 at 2). There is also 24 evidence that the Maurice Davis driver’s license was suspended in 1992 in connection 25 with a DUI and has never been reinstated. (Docs. 36-1 at 2–3; 42-1 at 11). Based on this 26 evidence, the Court agrees with the R&R that Petitioner’s self-serving statement that he 27 never obtained a driver’s license under the name Maurice Davis is insufficient to satisfy 28 the Schlup Gateway which requires “new reliable evidence” proving a petitioner’s actual -5- 1 innocence. Schlup, 513 U.S. at 324. Petitioner presents no evidence beyond his self- 2 serving statement that he never obtained a driver’s license using the alias Maurice Davis. 3 In contrast, there is evidence with a “0% chance of error” that Petitioner’s fingerprints 4 match the fingerprints of Maurice Davis. There is no basis to conclude that no reasonable 5 juror would have convicted Petitioner in light of his disavowals. Because the evidence 6 shows that Petitioner was issued a driver’s license using the alias “Maurice Davis” and 7 that the license was suspended at the time of Petitioner’s three DUIs in 2008 and 2009, 8 Petitioner’s claim of actual innocence fails. Accordingly, to the extent Petitioner objected 9 to this portion of the R&R, his objection is overruled. 10 III. 11 Motion for Release Because this Order rules on Petitioner’s Petition, his Motion for Release pending 12 review of his Petition is denied. 13 IV. Conclusion 14 Based on the foregoing, 15 IT IS ORDERED that the Report and Recommendation, (Doc. 52), is accepted 16 and adopted as stated above; Petitioner’s objections, (Doc. 53), are overruled; and 17 Petitioner’s Motion for Release Pending Review of Court’s Decision and 18 Recommendation, (Doc. 50), is DENIED. 19 IT IS FURTHER ORDERED that the claims in the Petition are dismissed as 20 specified in the Report and Recommendation, (Doc. 52 at 25), and the Clerk of the Court 21 shall enter judgment accordingly. 22 IT IS FINALLY ORDERED that, in the event Petitioner files an appeal, a 23 Certificate of Appealability is denied because, to the extent the Petition was dismissed, 24 such dismissal was based on a plain procedural bar and jurists of reason would not find 25 this Court’s procedural rulings debatable or wrong. 26 Dated this 8th day of August, 2016. 27 28 -6-

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