Cook v. Ryan et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION in Full re: 16 Report and Recommendation. The Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and this case is dismissed with prejudice. Denying 20 Motion to Order Access and 25 Motion to Compel . 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 jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Roslyn O Silver on 7/6/17. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Lynn Cook,
Petitioner,

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ORDER

v.

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No. CV-16-03872-PHX-ROS

Charles L Ryan, et al.,

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Respondents.

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On April 28, 2017, Magistrate Judge Michelle H. Burns issued a Report and

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Recommendation (“R&R”) recommending Petitioner Michael Lynn Cook’s petition for

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writ of habeas corpus be dismissed as untimely. (Doc. 16). Cook filed objections and

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supplements arguing the R&R should be overruled. The R&R’s analysis is correct and it

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will be adopted in full.

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At present, the sole issue is the timeliness of Cook’s petition. The relevant facts

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and dates are undisputed. Cook was convicted in state court of, among other things,

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attempted second-degree murder. He was sentenced to prison terms totaling 40 years.

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Cook filed a direct appeal but the Arizona Court of Appeals affirmed his convictions and

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sentences. While that appeal was pending, Cook filed his first post-conviction relief

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(“PCR”) petition with the state trial court. Cook’s direct appeal concluded on March 1,

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2010 but his first PCR petition remained pending until July 17, 2013. Approximately six

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months before his first PCR proceeding ended, Cook filed a second PCR petition with the

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state trial court. The trial court denied the second PCR petition on November 6, 2013.

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(Doc. 1-6 at 2). Cook then filed a petition for review of the denial of his second PCR

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petition with the Arizona Court of Appeals. The court of appeals granted review but

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denied relief. In its ruling, the court of appeals repeatedly stated Cook’s second PCR

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petition was “untimely.” (Doc. 1-6 at 13). The court of appeals issued its mandate on

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July 13, 2016 and Cook filed the present federal petition on November 7, 2016. (Doc. 1-

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6 at 7).

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Federal law requires a petition for writ of habeas corpus be filed within one year

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of a conviction becoming final. 28 U.S.C. § 2244(d)(1)(A). This period is subject to

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both statutory and equitable tolling. Statutory tolling applies while a “properly filed

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application for State post-conviction . . . is pending.” 28 U.S.C. § 2244(d)(2). Equitable

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tolling applies if a petitioner was pursuing his rights diligently but extraordinary

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circumstances prevented him from filing on time. Holland v. Florida, 560 U.S. 631, 648

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(2010). The threshold for equitable tolling is “very high” and it is “unavailable in most

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cases.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quotation marks and

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citations omitted). Based on these principles, and the undisputed dates regarding Cook’s

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various filings, the timeliness inquiry is relatively straightforward.

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Cook’s convictions were final and his first PCR petition was no longer pending as

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of July 17, 2013. If the one-year limitations period began to run at that time, Cook’s

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federal petition filed in November 2016 was more than two years too late. Alternatively,

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if the one-year limitations period did not begin to run until the second PCR petition was

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no longer pending as of July 13, 2016, Cook’s federal petition is timely. Finally, even if

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the one-year period began to run on July 17, 2013, Cook’s federal petition is timely if he

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is entitled to equitable tolling.

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The R&R concluded the one-year period began to run in 2013 when Cook’s first

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PCR petition was no longer pending. According to his objections and other filings, Cook

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believes that is incorrect and his second PCR petition also tolled the statute of limitations.

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In other words, the one-year period did not begin to run until Cook’s second PCR petition

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was no longer pending. But in rejecting Cook’s second PCR petition, the Arizona Court

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of Appeals explicitly found that petition “untimely.” As explained by the Supreme

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Court, an untimely petition is not considered “properly filed” to merit tolling of the

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limitations period. Pace v. DiGuglielmo, 544 U.S. 408 (2005). Thus, Cook’s second

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PCR petition had no impact on when his one-year period began to run and his federal

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petition is untimely by more than two years.

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Cook argues it is unfair to start the one-year period from his first PCR petition

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because he had no way of knowing the state courts would eventually deem his second

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PCR petition untimely. Cook points to decisions by the state trial court allowing his

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second PCR petition to proceed as evidence that he had no reason to believe there may be

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a future timeliness problem in federal court. The problem for Cook is that the Supreme

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Court explicitly contemplated this exact scenario in ruling that untimely petitions have no

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impact on calculating the federal deadline.

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In Pace v. DiGuglielmo, 544 U.S. 408 (2005), a Pennsylvania state court had held

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a petition for post-conviction relief was untimely. The petitioner then filed a federal

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petition, arguing his state petition had been “properly filed” even though it had been

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deemed untimely. That is, he was entitled to statutory tolling until his untimely petition

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was no longer pending. In the petitioner’s view, it would be unfair to deem an untimely

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petition not “properly filed” because “a petitioner trying in good faith to exhaust state

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remedies may litigate in state court for years only to find out at the end that [his petition]

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was never ‘properly filed,’ and thus that his federal habeas petition is time barred.” Id. at

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416. The Supreme Court rejected this argument, claiming a petitioner in this type of

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“predicament” should file “a ‘protective’ petition in federal court . . . asking the federal

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court to stay and abey the federal habeas proceedings until state remedies are exhausted.”

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Id. This exact reasoning applies to Cook.

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After his first PCR petition was denied, Cook could have filed a protective federal

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petition to protect his right to federal review of his conviction. Cook could not, however,

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rely on his second PCR petition tolling the time period given the strong possibility that

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his second PCR petition would eventually be deemed untimely. Because the Supreme

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Court has addressed and rejected Cook’s exact claim regarding statutory tolling, the

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R&R’s conclusion on statutory tolling is correct.

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On the topic of equitable tolling, the R&R correctly concludes Cook has not

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established he pursued his rights diligently or that extraordinary circumstances prevented

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him from filing a timely petition. It appears Cook seeks to invoke equitable tolling based

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on his belief that he needed to wait until his second PCR petition was resolved before

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filing his federal petition. But as explained in Pace, petitioners must file protective

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petitions in such circumstances. Cook’s decision to wait until a final ruling on his

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untimely second petition does not show he was proceeding diligently. In addition, Cook

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does not point to any extraordinary circumstances that prevented him from filing his

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federal petition between July 2013 and November 2016. Equitable tolling does not

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apply.

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Finally, Cook “request[s] access to case authorities that are available only in

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electronic databases such as Lexis and Westlaw” as well as an order compelling

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Respondents to produce certain material. (Doc. 20 at 1). Because Cook’s petition is

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untimely under Supreme Court and statutory law, there is no need to provide Cook the

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relief he seeks.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 16) is ADOPTED IN

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FULL. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED and this case is

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DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED the Motion to Order Access (Doc. 20) and Motion
to Compel (Doc. 25) are DENIED.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal are DENIED because dismissal of the petition is

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justified by a plain procedural bar and jurists of reason would not find the procedural

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ruling debatable.
Dated this 6th day of July, 2017.

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Honorable Roslyn O. Silver
Senior United States District Judge

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