Jones #190298 v. Ryan et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED that Magistrate Judge Boyle's R&R (Doc. 27 ) is accepted and adopted. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with pre judice. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurist s of reason would not find the procedural ruling debatable. Petitioner's Motion for Evidentiary Hearing and Request for Appointment of Counsel (Doc. 12 ) and Motion Requesting Respondents Furnish Transcripts and Exhibits (Doc. 24) are denied. The Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 2/13/17. (KGM)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Edward Lee Jones, Jr.,
Petitioner,

10
11

ORDER

v.

12

No. CV-16-02051-PHX-DJH

Charles L. Ryan, et al.,

13

Respondents.

14
15

This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

16

pursuant to 28 U.S.C. § 2254 (Doc. 1) filed on June 23, 2016 and the Report and

17

Recommendation (“R&R”) issued by United States Magistrate Judge John Z. Boyle

18

(Doc. 27) on December 16, 2016. Petitioner filed an Objection to the R&R ("Objection")

19

(Doc. 28) and a supporting Memorandum of Law (Doc. 29) on January 5, 2017. Also

20

pending are Petitioner’s Motion for Evidentiary Hearing and Request for Appointment of

21

Counsel (Doc. 12) and Motion Requesting Respondents Furnish Transcripts and Exhibits

22

(Doc. 24).

23

As this Court determined in the Screening Order (Doc. 7), Petitioner raised six

24

grounds for relief in the Petition. (Doc. 7 at 2). After a thorough analysis, Judge Boyle

25

determined that the Petition was filed after the statute of limitations period expired, that

26

Petitioner is not entitled to equitable tolling, and that Petitioner has not demonstrated

27

actual innocence. (Doc. 27). Accordingly, Judge Boyle recommends the Petition be

28

denied and dismissed with prejudice. (Doc. 27 at 11). Judge Boyle further recommends

1

that Petitioner's other two pending motions be denied. (Id.).

2

I. Petitioner’s Objection

3

Rule 7.2(e)(3) of the Rules of Practice of the United States District Court for the

4

District of Arizona (“Local Rules”) provides that “[u]nless otherwise permitted by the

5

Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall

6

not exceed ten (10) pages.” Petitioner’s handwritten Objection to the R&R (Doc. 28) is

7

32 pages long and the supporting Memorandum of Law (Doc. 29) is an additional six

8

pages with 92 pages of attachments. Petitioner did not seek permission from the Court to

9

exceed the page limit set forth in the Local Rules. Based on Petitioner’s failure to

10

comply with the page limitation in LRCiv 7.2(e)(3), the Court will not consider

11

Petitioner’s Objection or Memorandum of Law. Moreover, even if the Court were to

12

consider his Objection, Petitioner fails therein to clearly identify his specific objections to

13

the R&R.

14

II. Analysis

15

A. Standard of Review

16

The district judge "shall make a de novo determination of those portions of the

17

report or specified proposed findings or recommendations to which objection is made."

18

28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must

19

determine de novo any part of the magistrate judge’s disposition that has been properly

20

objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge "may

21

accept, reject, or modify, in whole or in part, the findings or recommendations made by

22

the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

23

B. Timeliness

24

Although the Court here has not considered Petitioner’s Objection, in an

25

abundance of caution, it has performed its own limited review of the R&R. In doing so,

26

the Court agrees with the Magistrate Judge and finds that the Petition was filed after the

27

statute of limitations period expired.

28

The Antiterrorism and Effective Death Penalty Act of 1996 imposes a statute of

-2-

1

limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28

2

U.S.C. § 2244(d)(1). The statute provides in pertinent part:

3
4
5
6
7

A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The limitation
period shall run from the latest of–
(A) the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review;

8

An “of-right” petition for post-conviction review under Arizona Rule of Criminal

9

Procedure 32, which is available to criminal defendants who plead guilty, is a form of

10

“direct review” within the meaning of 28 U.S.C. § 2244(d)(1)(A). Summers v. Schriro,

11

481 F.3d 710, 711 (9th Cir. 2007). Therefore, in plea agreement cases, the judgment of

12

conviction becomes final upon “the conclusion of the Rule 32 of-right proceeding and

13

review of that proceeding or [upon] the expiration of the time for seeking such

14

proceeding or review.” Id.

15

Additionally, A[t]he time during which a properly filed application for State post-

16

conviction or other collateral review with respect to the pertinent judgment or claim is

17

pending shall not be counted toward@ the limitations period. 28 U.S.C. ' 2244(d)(2); Lott

18

v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). An application for post-conviction relief

19

remains Apending@ for purposes of the tolling provision in ' 2244(d)(2) until it achieves

20

final resolution through the State=s post-conviction procedure. Carey v. Saffold, 536 U.S.

21

214, 219-220 (2002). A post-conviction petition is Aclearly pending after it is filed with a

22

state court, but before that court grants or denies the petition.@ Chavis v. Lemarque, 382

23
24
25
26
27
28

F.3d 921, 925 (9th Cir. 2004). In Arizona, post-conviction review is pending once a
notice of post-conviction relief is filed even though the petition itself may not be filed
until later. Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9th Cir.
2004) (A[W]e hold that Isley=s state petition was Apending@ within the meaning of 28
U.S.C. ' 2244(d)(2) and he was entitled to tolling from the date when the Notice was
filed. The district court erred in dismissing his petition as untimely.@). Filing a new
-3-

1

petition for post-conviction relief, however, does not reinitiate a limitations period that

2

ended before the new petition was filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th

3

Cir. 2003).

4

Here, after Petitioner was sentenced on November 24, 2008, he filed a timely

5

notice of post-conviction relief on November 30, 2008. See Ariz.R.Crim.P. 32.4(a)

6

(providing that a petitioner has ninety days from the entry of judgment and sentence to

7

file an “of-right” petition for post-conviction relief). Petitioner subsequently filed a pro

8

se petition for post-conviction relief on March 17, 2010. The trial court then denied the

9

petition on August 12, 2010. Petitioner then had thirty days to seek review of the trial

10

court’s decision, which he did by filing a petition for review in the Arizona Court of

11

Appeals on September 24, 2010. See Ariz.R.Crim.P. 32.9(c) (providing that a petitioner

12

has thirty days from the trial court’s decision to file a petition for review). He filed a

13

second petition for review on December 8, 2010. The Arizona Court of Appeals denied

14

review on September 20, 2012. After Petitioner sought review in the Arizona Supreme

15

Court on October 23, 2012, the Court denied his request on February 15, 2013.

16

Thus, the judgment of conviction became final 90 days later on May 16, 2013,

17

which is when the period for filing a petition for writ of certiorari to the United States

18

Supreme Court expired. See Summers, 481 F.3d at 711 (holding that a judgment of

19

conviction pursuant to a guilty plea becomes “final” for purposes of § 2244(d)(1)(A)

20

upon the conclusion of a Rule 32 of-right proceeding and review of that proceeding or

21

upon the expiration of the time for seeking such proceeding or review). The limitations

22

period ran uninterrupted until it expired one year later on May 16, 2014. Petitioner filed

23

his habeas petition on June 23, 2016, more than two years after the limitations period

24
25

expired. The Petition is, therefore, untimely.
Petitioner’s second and third notices of post-conviction relief, filed on August 28,

26

2012 and October 17, 2012, respectively, did not statutorily toll the limitations period

27

because they were not “properly filed.” See Pace v. DiGuglielmo, 544 U.S. 408, 414

28

(2005) (holding that an untimely state post-conviction petition is not “properly filed” for

-4-

1

purposes of the AEDPA statutory tolling provision).

2

Petitioner’s second notice of post-conviction relief as untimely on October 2, 2012.

3

Petitioner did not seek further review. The trial court dismissed Petitioner’s third notice

4

as untimely on November 13, 2012. Petitioner’s requests for review of the dismissal of

5

his third notice were denied. Thus, upon conducting its own limited review, the Court

6

reaches the same conclusion as the Magistrate Judge and finds the Petition is untimely.

The trial court dismissed

7

C. Equitable Tolling

8

Additionally, like the Magistrate Judge, the Court finds Petitioner is not entitled to

9

equitable tolling here. The limitations period set forth in 28 U.S.C. § 2244(d) is subject

10

to equitable tolling where a petitioner shows he has been pursuing his rights diligently

11

and that extraordinary circumstances prevented him from filing a timely petition.

12

Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is applied sparingly, as

13

reflected by the “extraordinary circumstances” requirement.

14

Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling is unavailable in most

15

cases. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that “the threshold

16
17
18
19
20
21
22
23
24
25
26
27
28

Waldron-Ramsey v.

necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions
swallow the rule.”) (citation omitted). An “external force must cause the untimeliness,
rather than, as we have said, merely ‘oversight, miscalculation or negligence on [the
petitioner’s] part.’” Waldron-Ramsey, 556 F.3d at 1011(quoting Harris v. Carter, 515
F.3d 1051, 1055 (9th Cir. 2008)). A petitioner seeking equitable tolling bears the burden
of demonstrating it is warranted in his habeas case. Doe v. Busby, 661 F.3d 1001, 1011
(9th Cir. 2011) (citing, inter alia, Holland, 130 S.Ct. at 2562).
Petitioner has not shown that extraordinary circumstances prevented him from
filing a timely petition. The reasons he identifies, including denial of his request for
appointment of counsel and insufficient legal resources at the prison, among others, are
insufficient to demonstrate entitlement to equitable tolling here.
D. Other Motions
Finally, the Court agrees with the Magistrate Judge that an evidentiary hearing is
not warranted here where the state court record clearly demonstrates that Petitioner’s
-5-

1

habeas petition is untimely. Moreover, in light of the Court’s determination on the

2

habeas petition, the Court finds no basis to grant the motion for Respondents to furnish

3

transcripts.

4

III. Conclusion

5

Based on the foregoing,

6

IT IS ORDERED that Magistrate Judge Boyle's R&R (Doc. 27) is accepted and

7
8
9

adopted.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

10

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

11

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

12

on appeal are denied because dismissal of the Petition is justified by a plain procedural

13

bar and jurists of reason would not find the procedural ruling debatable.

14

IT IS FURTHER ORDERED that Petitioner's Motion for Evidentiary Hearing

15

and Request for Appointment of Counsel (Doc. 12) and Motion Requesting Respondents

16
17
18
19

Furnish Transcripts and Exhibits (Doc. 24) are denied.
IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 13th day of February, 2017.

20
21
22

Honorable Diane J. Humetewa
United States District Judge

23
24
25
26
27
28

-6-