Gracia v. Ryan et al

Filing 22

ORDER ACCEPTING REPORT AND RECOMMENDATION 19 . Petitioner's Motion to Request Stay 17 is denied. Petitioner's Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice. The Clerk of Court shall terminate this action. The Court declines to issue a certificate of appealability. Signed by Judge G Murray Snow on 12/7/11. (TLJ)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mark Andrew Gracia,
Plaintiff,

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vs.

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Charles L. Ryan, et al.,
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Defendants.
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No. CV-10-8220-PHX-GMS
ORDER

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Pending before the Court is a Petition for Writ of Habeas Corpus filed by Petitioner

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Mark Andrew Gracia, (Doc. 1) and a Motion for a Stay. (Doc. 17). Magistrate Judge Edward

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C. Voss has issued a Report and Recommendation (“R & R”) recommending that the petition

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be denied as untimely under the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”). (Doc. 19). Petitioner has filed objections to the R & R. (Doc. 20). Because

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objections have been filed, the Court will review the petition de novo. See United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the

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Court adopts the recommendations and denies the Petition.

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BACKGROUND

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In 1985, Petitioner was convicted by a jury of burglary, kidnaping, and four counts

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of sexual assault in violation of A.R.S. § 13-1508 (1980), A.R.S. § 13-1406 (1982), and

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A.R.S. § 13-1304 (1978). (Doc. 11, Ex. B). Finding that the crime was repetitive and

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considering a number of aggravating factors, including the especially heinous, cruel or

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depraved manner in which the offense was committed, Judge H. Jeffrey Coker sentenced

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Petitioner to 71.75 years in state prison. (Id.). Upon appeal, the Court of Appeals affirmed

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his conviction on March 4, 1986, and the Arizona Supreme Court denied review on May 28,

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1986. (Doc. 1 at 3).

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Petitioner, through appointed counsel, filed a Rule 32 petition in state court, which

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was summarily denied. He then filed a motion for rehearing, alleging that 1) the trial court

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judge should have disqualified itself from the Rule 32 proceeding, 2) his trial attorney should

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have requested a hearing regarding voice identification evidence pursuant to State v.

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Dessureault, 104 Ariz. 380, 453 P. 2d 951 (1969), and that failure to do so constituted

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ineffective assistance, 3) the police failed to preserve evidence properly, 4) Petitioner should

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have had an expert witness appointed to assist at the Rule 32 proceeding, and 5) Petitioner’s

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attorney was ineffective for failing to request the assistance of a forensic expert. (Doc. 11,

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Ex. D at 3). The Court of Appeals granted review but denied relief on October 27, 1988.

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(Doc. 11, Ex. D). The Supreme Court also granted review, but denied relief on February 7,

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1989. (Doc. 12, Ex. F at 1).

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On December 31, 1998, Petitioner filed a second Rule 32 petition, alleging that the

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Supreme Court’s ruling in Batson v. Kentucky, 476 U.S. 79 (1986) should be applied

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retroactively to his case because his defense attorney, at trial, moved for a mistrial based

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upon the fact that the prosecutor had used peremptory strikes to eliminate all minority jurors.

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(Doc. 12, Ex. E). The petition was denied by Judge Coker on March 22, 1999. (Doc. 12, Ex.

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G). Petitioner sought review, arguing that while “the Supreme Court has held that Batson is

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not retroactive in the federal courts,” Arizona state courts had not yet visited the issue, and

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the fact that counsel had anticipated the ruling in Batson with a timely objection justified

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retroactive application “under the unique facts here.” (Doc. 12, Ex. H.). The Court of

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Appeals denied review on March 22, 2000. (Doc. 12, Ex. I).

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On November 15, 2010, Petitioner filed a habeas petition in federal court. (Doc. 1).

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In it, he alleges five grounds for relief, namely that 1) the trial court erred when it limited his
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trial testimony, preventing him from implicating another in the crimes and explaining why

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his fingerprints were on the victim’s windows and his wedding ring was found in her

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bedroom at the scene of the assault, 2) the trial court erred by allowing statements that had

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been excluded pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) to be used to impeach

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Petitioner’s testimony, 3) the trial court erred by allowing voice identification testimony

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without a Desureault hearing, 4) Petitioner was denied effective assistance of counsel, and

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5) he is actually innocent and entitled to relief under Schulp v. Delo, 513 U.S. 298 (1995).

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Respondents filed a limited answer on May 4, 2011, claiming that the petition is untimely

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under AEDPA. (Doc. 11). Petitioner sought and received an extension of time to write a

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reply, and then filed a motion for a stay on July 7, 2011, detailing the difficulties he has had

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in prison obtaining legal reference materials and filing pleadings. (Doc. 17). Magistrate Judge

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Voss issued his R & R on August 22, 2011, recommending that the petition be denied as

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untimely, and Petitioner filed objections on September 6, 2011. (Docs. 19–20).

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DISCUSSION
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Legal Standard

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The writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). The federal

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244–54

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“establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace

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v. DiGuglielmo, 544 U.S. 408, 410 (2005) (citing 28 U.S.C. § 2244(d)(1)). The limitation

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period begins to run when the state conviction becomes final—either “upon ‘the conclusion

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of direct review or the expiration of the time for seeking such review.’” White v. Klitzkie, 281

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F.3d 920, 923 (9th Cir. 2002) (quoting 28 U.S.C. § 2244(d)(1)(A)). This one-year limitation

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period is statutorily tolled during any time in which a “properly filed” state petition for post-

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conviction relief is “pending” before the state court, and “must be tolled for the entire period

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in which a petitioner is appropriately pursuing and exhausting his state remedies.” 28

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U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir. 1999). Those prisoners

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whose convictions became final before April 24, 1996 had a one-year grace period in which
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to file their petitions. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).

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In certain limited circumstances, AEDPA’s one-year filing deadline may be equitably

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tolled. See Holland v. Florida, 130 S. Ct. 2549, 2590 (2010). A petitioner is entitled to

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equitable tolling if he can demonstrate that “(1) he has been pursuing his rights diligently,

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and (2) that some extraordinary circumstance stood in his way” to prevent his timely filing.

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Pace, 544 U.S. at 418. Nevertheless, equitable tolling is rare: the Court must “take seriously

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Congress’s desire to accelerate the federal habeas process” and may equitably toll the

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AEDPA’s limitation period only when the test’s “high hurdle is surmounted.” Calderon v.

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United States Dist. Ct. (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1997), overruled in part on

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other grounds, 163 F.3d 530 (9th Cir. 1998).

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2.

Analysis

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Petitioner’s conviction became final upon “the expiration of the time for seeking such

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review” of the Arizona Supreme Court’s denial of his conviction. White, 281 F.3d at 923.

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For the purposes of AEDPA, the statute of limitations would have been tolled during the

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period in which he sought review through a Rule 32 petition in state court. Since that process

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itself concluded before AEDPA’s operational date, his claim was subject to AEDPA’s one-

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year grace period, which expired in April of 1997. Patterson, 251 F.3d at 1245. Petitioner

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claims in his objections that in 1996, when AEDPA became operational, he was diagnosed

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with ulcerative colitis, and was “in what was his potential death bed due to lack of medical

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treatment.” (Doc.

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circumstance [that] stood in his way” in 1996, Pace, 544 U.S. at 418, he was evidently

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sufficiently recovered to file a petition in state court in 1998, though he chose not to file a

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federal petition at that time. More than thirteen years passed between April of 1997, when

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his grace period expired, and November of 2010, when he filed his federal habeas petition.

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Petitioner makes no effort to explain why this entire period should be tolled because of his

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1996 illness, nor does he present evidence that “he has been pursuing his rights diligently”

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during that period. Pace, 544 U.S. at 418. Equitable tolling is unavailable to render the

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petition timely.

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Nor does Petitioner’s reliance on Schlup v. Delo, 513 U.S. 298 (1995) serve to excuse

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his untimeliness. In Schlup, Justice O’Connor wrote that “[t]he Court holds that, in order to

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have an abusive or successive habeas claim heard on the merits, a petitioner who cannot

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demonstrate cause and prejudice must show that it is more likely than not that no reasonable

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juror would have convicted him in light of newly discovered evidence of innocence.” Schlup,

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513 U.S. 298, 332 (O’Connor, J. concurring). Schlup offers what the Court described as a

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“gateway” by which untimely or procedurally defaulted constitutional claims could be heard

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on the merits. Id. at 315. Petitioner provides no new evidence of innocence, but claims

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instead that had unfavorable evidence (such as his suppressed statements and the victim’s

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testimony as to recognizing his voice) been suppressed, no reasonable juror would have

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found him guilty. The Court of Appeals, in its original denial of Petitioner’s appeal, wrote

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that “the evidence presented against appellant in the case-in-chief was overwhelming.” (Doc.

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12, Ex. D at 9). Even were the suppression of evidence to render the case less convincing,

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Schlup would not excuse Petitioner’s untimeliness. The petition is therefore denied.

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Petitioner’s motion for a stay is equally unconvincing. (Doc. 20). Even granting that

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the current conditions of Petitioner’s confinement make researching and filing briefings

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regarding his petition challenging, Petitioner has offered no reason, beyond his 1996 illness,

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that his untimely filing can be excused by equitable tolling or some other remedy. Since his

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petition is untimely, granting him further time to conduct legal research on the merits would

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be to no avail. Petitioner’s motion is therefore also denied.

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CONCLUSION

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Petitioner filed his habeas petition more than thirteen years after the grace period

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provided by AEDPA for those whose cases became final prior to AEDPA’s operational date,

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and is therefore untimely. He has provided no adequate grounds upon which the deadline

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could be statutorily or equitably tolled. Since the petition is untimely, further stays would be

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of no avail to Petitioner, and his motion for a stay is also denied.

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IT IS THEREFORE ORDERED:

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1.

Magistrate Judge Voss’s R & R (Doc. 19) is ACCEPTED.
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2.

Petitioner’s Motion to Request Stay (Doc. 17) is DENIED.

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3.

Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DENIED AND

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DISMISSED WITH PREJUDICE.

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The Clerk of Court shall TERMINATE this action.

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Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event

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Petitioner files an appeal, the Court declines to issue a certificate of appealability because

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reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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DATED this 7th day of December, 2011.

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