Shank v. Ryan et al

Filing 11

ORDER ADOPTING 9 Magistrate Judge's Report and Recommendation. The petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus is denied and this action is dismissed with prejudice. A certificate of appealability shall not be issued and that the petitioner is not entitled to appeal in forma pauperis because the dismissal of the habeas petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. The Clerk shall enter judgment. Signed by Senior Judge Paul G Rosenblatt on 5/16/16. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Jerold Shank,
Petitioner,

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vs.
Charles L. Ryan, et al.,
Respondents.

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No. CV-15-02437-PHX-PGR (DKD)
ORDER

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Having reviewed de novo the Report and Recommendation of Magistrate

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Judge Duncan (Doc. 9) in light of Petitioner’s Formal Objection to the United States

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Magistrate Judge David K. Duncan’s Report and Recommendation (Doc. 10), the

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Court finds that the Magistrate Judge correctly concluded that the petitioner’s

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Petition for a Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, should be

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denied because it was untimely filed.

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The § 2254 petition was filed on December 1, 2015. The Court agrees with

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the Magistrate Judge that the one-year statute of limitations of the AEDPA expired

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in early October, 2006, thus making the petition untimely by over nine years.

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The petitioner’s argument that the statute of limitations should be equitably

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tolled is not well-taken. The petitioner is entitled to equitable tolling of the AEDPA’s

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limitations period only if he shows that he has been pursuing his rights diligently and

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that some extraordinary circumstance stood in his way and prevented him from

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timely filing his federal habeas petition. Holland v. Florida, 130 S.Ct. 2549, 2562

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(2010). The petitioner has not met either requirement. As the Magistrate Judge

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properly concluded, the petitioner’s contention that the limited nature of the legal

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resources available to him within the state prison system prevented him from timely

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filing his petition is insufficient to meet his burden regarding the availability of

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equitable tolling, especially given that the AEDPA’s limitations period had been in

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effect for ten years prior to the time it expired in the petitioner’s case in October,

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2006, and given that the petitioner was able to file substantial state post-conviction

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relief petitions in September, 2002 and November, 2004. See Ramirez v. Yates, 571

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F.3d 993, 998 (9th Cir.2009).

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The petitioner’s argument that the Court should reach the merits of his petition

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notwithstanding the AEDPA’s time bar due to his actual innocence is also not well-

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taken. While the Supreme Court has held that a “convincing showing of actual

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innocence” under the standard of Schlup v. Delo, 513 U.S. 298 (1995), can

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overcome the bar of the AEDPA’s statute of limitations, the petitioner has not

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established in his petition the “rare,” “demanding” and “seldom met” circumstances

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necessary to pass through the Schlup gateway. McQuiggin v. Perkins, 133 S.Ct.

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1924, 1928 (2013). Under Schlup, a claim of actual innocence, raised for purposes

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of overcoming the AEDPA’s limitations bar, requires the petitioner to (1) “support his

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allegations of constitutional error with new reliable evidence - whether it be

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exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

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evidence - that was not presented at trial” and (2) “to show that it is more likely than

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not that no reasonable juror would have convicted him in light of the new evidence.”

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Schlup, 513 U.S. at 324 and 327. The hearsay-based affidavits of William Shank

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and Sherman Bond that the petitioner attached to his petition, both of which were

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signed in January, 2012, are not sufficient for Schlup purposes because they do not

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call into question the jury’s verdict that found the petitioner guilty of first-degree

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murder since neither affidavit in any way establishes that the petitioner did not

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commit the murder. Furthermore, “[u]nexplained delay in presenting new evidence

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bears on the determination whether the petitioner has made the requisite [Schlup]

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showing[,]” McQuiggin, 133 S.Ct. at 1935, and the twelve-year delay between the

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petitioner’s conviction and the new affidavits is unjustified given the petitioner’s

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failure to adequately explain the delay. Therefore,

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc. 9) is accepted and adopted by the Court.

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IT IS FURTHER ORDERED that the petitioner’s Petition Under 28 U.S.C. §

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2254 for a Writ of Habeas Corpus by a Person in State Custody is denied as time-

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barred and that this action is dismissed with prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability shall not be

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issued and that the petitioner is not entitled to appeal in forma pauperis because the

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dismissal of the habeas petition is justified by a plain procedural bar and jurists of

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reason would not find the procedural ruling debatable.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 16th day of May, 2016.

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