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)

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-