Hamilton v. Ryan et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION. It is ordered that Magistrate Judge Duncan's R&R 10 is ACCEPTED and Petitioner Hamilton's Petition for Writ of Habeas Corpus 1 is DENIED with prejudice. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable (see attached PDF for further details). Signed by Judge G Murray Snow on 8/6/2015. (ACL)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Shawn A. Hamilton, No. CV-14-8117-PCT-GMS Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the Court are Petitioner Shawn A. Hamilton’s Petition for Writ of 16 Habeas Corpus (Doc. 1) and United States Magistrate Judge David K. Duncan’s Report 17 and Recommendation (“R&R”), which recommends that the Court deny the Motion. 18 (Doc. 10.) Because Petitioner filed timely objections to the R&R, the Court will review 19 the Petition de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 20 2003). For the following reasons, the Court adopts the R&R and denies the Petition. 21 BACKGROUND 22 On October 22, 2010, Petitioner entered a plea of guilty pursuant to a plea 23 agreement in Mohave County Superior Court to eight counts of burglary in the third 24 degree, two counts of theft, and one count of possession of dangerous drugs. His 25 stipulated guilty plea stated that he may receive a sentence of up to fifteen years in 26 prison. The superior court accepted Petitioner’s guilty plea, following a colloquy with 27 Petitioner to assess the voluntariness of his plea, and sentenced him to a total term of 28 imprisonment of fifteen years for all eleven counts. 1 Petitioner unsuccessfully sought relief through post-conviction proceedings in 2 state court by filing a Notice and Petition in July 2011, which was dismissed for 3 untimeliness. Petitioner commenced the instant action by filing a Petition for Writ of 4 Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 3, 2014. (Doc. 1.) The ground for 5 his petition is that his state trial counsel was ineffective for advising Petitioner that he 6 would be sentenced to no more than probation if he pled guilty. Respondents argue that 7 the Petition is untimely and Petitioner’s state remedies have been procedurally defaulted. 8 Judge Duncan issued an R&R on May 4, 2015 in which he recommended denial of the 9 Petition with prejudice. (Doc. 10.) Petitioner filed objections to the R&R on May 21, 10 2015. (Doc. 11.) 11 DISCUSSION 12 The writ of habeas corpus affords relief to persons in custody in violation of the 13 Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Review of 14 Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death 15 Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244 et seq. Congress provided a one- 16 year statute of limitations for all applications for writs of habeas corpus filed pursuant 17 to 28 U.S.C. § 2254 challenging convictions and sentences rendered by state courts. Id. 18 § 2244(d). Petitions filed beyond the one year limitations period are barred and must be 19 dismissed. Id. 20 The one-year statute of limitations on habeas petitions begins to run on “the date 21 on which the judgment became final by the conclusion of direct review or the expiration 22 of the time for seeking such review.” Id. § 2244(d)(1)(A). For an Arizona, non-capital, 23 pleading defendant, the conviction becomes “final” at the conclusion of the first “of- 24 right” post-conviction proceeding under Arizona Rule of Criminal Procedure 32. 25 Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). To bring an of-right proceeding 26 under Rule 32, a pleading defendant must file a notice of his intent to file a Petition for 27 Post-Conviction Review within ninety days of conviction and sentencing. Id. at 715 28 (citing Ariz. R. Crim. P. 32.4(a)). -2- 1 Petitioner was sentenced on June 4, 2010, and his right to initiate post-conviction 2 proceedings concluded ninety days later, plus five days for mailing, on September 7, 3 2010. See Ariz. R. Crim. P. 1.3, 32.4(a). Petitioner did not, and his time to file a petition 4 for review expired on that date and his convictions became final. Barring any applicable 5 tolling, Petitioner’s federal limitations period expired one year later in September 2011. 6 Petitioner’s federal habeas Petition was not filed until July 3, 2014, and is, 7 therefore, untimely. Petitioner has shown no basis for statutory tolling under 28 U.S.C. 8 § 2244(d)(2); his untimely state court Notice and Petition did not toll the statute of 9 limitations because it was not “properly” filed as required by § 2244(d)(2). Pace v. 10 DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction petition is untimely 11 under state law, that is the end of the matter for purposes of § 2244(d)(2)” (internal 12 quotation marks omitted).); Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) 13 (holding conviction pursuant to plea agreement is final on expiration of the time for 14 seeking Rule 32 relief). Moreover, the Petition does not rely on a new rule of 15 constitutional law made retroactive to cases on collateral review, see 28 U.S.C. 16 § 2244(d)(1)(C), nor has Petitioner presented evidence of “extraordinary circumstances” 17 justifying the application of equitable tolling. Ramirez v. Yates, 571 F.3d 993, 997 (9th 18 Cir. 2009). Finally, Petitioner makes no claim of actual innocence that might warrant 19 departure from the ordinary statute of limitations. 20 Petitioner’s reliance on Martinez v. Ryan, 132 S.Ct. 1309 (2012), is unavailing 21 because Martinez does not excuse untimeliness. In Martinez, the Supreme Court 22 recognized a narrow means by which a prisoner can show “cause” to excuse a state 23 procedural default of a claim based upon alleged IAC at trial by creating a narrow 24 exception to the well-established rule in Coleman v. Thompson, 501 U.S. 722, 731 25 (1991), that errors committed by an attorney who is not constitutionally guaranteed to the 26 defendant do not constitute cause. See id. at 1315. Under Martinez, a petitioner may 27 establish cause for the procedural default of a claim of IAC by demonstrating two things: 28 (1) “counsel in the initial-review collateral proceeding, where the claim should have been -3- 1 raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 2 (1984)”; and (2) “the underlying ineffective-assistance-of-trial-counsel claim is a 3 substantial one, which is to say that the prisoner must demonstrate that the claim has 4 some merit.” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 5 S.Ct. at 1318). However, Martinez does not address or create an exception to the AEDPA 6 statute of limitations. Federal courts have consistently rejected the argument 7 that Martinez provides relief for time-barred petitions in the form of equitable tolling of 8 the statute of limitations. See Chavez v. Sec’y, Fla. Dep’t Corr., 742 F.3d 940, 945 (11th 9 Cir. 2014) (“Chavez's initial § 2254 petition was dismissed as untimely because it was 10 filed more than one year after his convictions became final on direct review, see 28 11 U.S.C. § 2244(d)(1)(A), and nothing in Martinez alters that fact.”); Manning v. Epps, 688 12 F.3d 177, 189 (5th Cir. 2012) (Martinez does not extend statute of limitations period 13 under 28 U.S.C. § 2244(d)(1)(B); see also White v. Martel, 601 F.3d 882, 884 (9th Cir. 14 2010) (the adequacy analysis used to decide procedural default issues is inapplicable to 15 the determination of whether a federal habeas petition was barred by the AEDPA statute 16 of limitations). Consequently, the Petition must be dismissed because it is time barred. 17 CONCLUSION 18 19 Because the Court finds the Petition barred by the statute of limitations, it does not address the issues of IAC or procedural default. 20 IT IS THEREFORE ORDERED that Magistrate Judge Duncan’s R&R (Doc. 21 10) is ACCEPTED and Petitioner Hamilton’s Petition for Writ of Habeas Corpus (Doc. 22 1) is DENIED with prejudice. 23 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 24 Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a 25 certificate of appealability because reasonable jurists would not find the Court’s 26 procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 27 /// 28 /// -4- 1 2 3 IT IS FURTHER ORDERED directing the Clerk of Court is TERMINATE this action and enter judgment accordingly. Dated this 6th day of August, 2015. 4 5 6 Honorable G. Murray Snow United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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