Clark v. Ryan et al

Filing 17

ORDER Petitioner's § 2254 petition for writ of habeas corpus (Doc. 1 ) is denied and dismissed with prejudice. The R&R (Doc. 15 ) is accepted Petitioner's motion for clarification (Doc. 14 ) is found to be moot. A certificate of app ealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). The Clerk shall terminate this action. Signed by Judge David G Campbell on 8/7/2015. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marc Allen Clark,

No. CV-14-08112-PCT-DGC
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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On April 24, 2007, Petitioner Marc Allen Clark pled guilty to three felony charges.

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In accordance with the plea agreement, Clark was sentenced to 15 years in prison. After

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receiving his sentence, Clark acknowledged in writing that he had 90 days to file a notice

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of post-conviction relief. Doc. 9-1 at 51.

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On October 31, 2011, Clark filed a notice of post-conviction relief (id. at 53),

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which the state court dismissed because it was untimely by four years (id. at 62). Both

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the Arizona Court of Appeals and Arizona Supreme Court denied review. On June 30,

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2014, Clark filed this § 2254 petition. On June 30, 2015, Magistrate Judge John Boyle

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issued a Report and Recommendation (“R&R”) recommending that the Court dismiss the

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petition as untimely. Doc. 15 at 8. Clark objects to the R&R. Doc. 16.

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Petitions for writs of habeas corpus are governed by the Antiterrorism and

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Effective Death Penalty Act of 1996 (“AEDPA”). AEPDA imposes a one-year statute of

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limitations on habeas petitions, which runs “from the latest of . . . the date on which the

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judgment became final by the conclusion of direct review or the expiration of the time for

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seeking such review.” 28 U.S.C. § 2244(d)(1). Clark was sentenced on June 28, 2007,

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and did not file notice of post-conviction relief. Therefore, the judgment in his case

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became final on September 26, 2007, when the 90 days expired. See Gonzalez v. Thaler,

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132 S. Ct. 641, 656 (2012) (noting that when a state prisoner “does not seek review in a

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State’s highest court, the judgment becomes ‘final’ under § 2244(d)(1)(A) when the time

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for seeking such review expires”). As such, Clark’s habeas petition was due no later than

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September 26, 2008.

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The petition filed by Clark on June 30, 2014 is untimely by nearly six years.

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Nonetheless, Clark argues that AEDPA’s limitations period is unconstitutional and that

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his inability to obtain documents related to his case impinged his ability to file his notice

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for post-conviction relief and his habeas petition. Doc. 16 at 2, 5. Both arguments are

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meritless.

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First, Clark cites no authority supporting his claim that AEDPA’s limitations

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period is unconstitutional, and the Court is aware of none. Second, Clark has not shown

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any right to tolling. AEDPA provides for statutory tolling if a prisoner “properly file[s]

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[an] application for State post-conviction or other collateral review[.]”

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§ 2244(d)(2).

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“(1) some ‘extraordinary circumstance’ prevented him from filing on time, and (2) he has

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diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). Clark

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did not file a timely notice for post-conviction relief, and thus he is not entitled to

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statutory tolling. Although he claims to have been unable to obtain documents, this, by

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itself, is not an extraordinary circumstance. Clark does not state what documents he

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failed to obtain, why they were important to his case, or how their absence affected his

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ability to file a petition. Clark has thus failed to demonstrate that AEDPA’s one-year

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limitations period should be tolled.

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IT IS ORDERED:

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1.

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28 U.S.C.

Equitable tolling is available for prisoners who can demonstrate that

Petitioner’s § 2254 petition for writ of habeas corpus (Doc. 1) is denied
and dismissed with prejudice.

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The R&R (Doc. 15) is accepted.

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Petitioner’s motion for clarification (Doc. 14) is found to be moot.

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A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Petitioner has not made a substantial showing of

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the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).

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5.

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Dated this 7th day of August, 2015.

The Clerk shall terminate this action.

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