Nelson v. Yavapai, County of et al

Filing 28

ORDER - IT IS ORDERED: 1. Judge Fine's R&R (Doc. 25 ) is accepted. 2. Nelson's petition for writ of habeas corpus (Doc. 13 ) is dismissed. 3. Nelson's motion of ineffective counsel (Doc. 26 ) and motion to subpoena his attorney (D oc. 27 ) are denied. 4. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Nelson has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). 5. The Clerk is directed to enter judgment and terminate this action. See document for complete details. Signed by Senior Judge David G Campbell on 3/30/2020. (WLP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stanley E. Nelson,

No. CV-18-08125-PHX-DGC (DMF)
Petitioner,

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vs.

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ORDER

David Shinn, Director of the Arizona
Department of Corrections; and Mark
Brnovich, Attorney General of the State of
Arizona,

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Respondents.

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Stanley Nelson is confined in Arizona state prison. He has filed a petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Docs. 1, 13. Magistrate Judge Deborah

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Fine issued a report recommending that the petition be dismissed (“R&R”). Doc. 25.

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Nelson filed objections. Docs. 26, 27. For reasons stated below, the Court will accept

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the R&R and dismiss the petition.

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I.

Background.

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On December 10, 2012, Nelson pled guilty in state court to one count of

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trafficking in stolen property and two counts of sale of a dangerous drug. Doc. 20

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at 9-15. He received concurrent sentences of 9.25 years in prison on the stolen property

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offense and 10 years on each of the two drug offenses. Id. at 17-21.

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Nelson waived his right to appeal by pleading guilty. Under state court Rule 32,

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Nelson had until March 11, 2013 – 90 days from the date of his sentencing – to file a

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notice of post-conviction relief. See Doc. 25 at 7; Ariz. R. Crim. P. 32.4(b)(3)(A).

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Nelson claims that upon returning to jail after his sentencing, he provided a notice of

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post-conviction relief to an unnamed detention officer to forward to the state court.

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Doc. 13 at 2-6. He never received a response.

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Nelson brought this federal habeas proceeding in June 2018, asserting ineffective

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assistance of counsel claims. Doc. 13. Judge Fine recommends that the petition be

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dismissed as untimely. Doc. 25.

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II.

R&R Standard of Review.

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court

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“must review the magistrate judge’s findings and recommendations de novo if objection

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is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003) (en banc). The Court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985);

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

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III.

The AEDPA’s One-Year Limitation Period.

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Federal habeas proceedings are governed by the Antiterrorism and Effective Death

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Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. The AEDPA establishes a

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one-year limitation period for the filing of habeas petitions. 28 U.S.C. § 2244(d); see

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Pliler v. Ford, 542 U.S. 225, 230 (2004). The limitation period generally begins to run

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when the state conviction becomes final by the expiration or conclusion of direct review.

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28 U.S.C. § 2244(d)(1)(A).

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Statutory tolling is available for the time during which a properly filed petition for

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post-conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). Equitable tolling

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applies where the petitioner shows that “(1) some ‘extraordinary circumstance’ prevented

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him from filing on time, and (2) he has diligently pursued his rights.” Luna v. Kernan,

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784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)).

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In addition, an equitable exception to the limitation period applies if the petitioner

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establishes a fundamental miscarriage of justice through a “credible showing of actual

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innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); see Schlup v. Delo, 513

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U.S. 298, 327 (1995).

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IV.

Judge Fine’s R&R.

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Judge Fine found Nelson’s habeas petition untimely under the AEDPA’s one-year

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limitation period because he filed the petition more than five years after his conviction

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became final in March 2013, and he has not established a basis for statutory or equitable

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tolling. Doc. 25 at 7-13. Noting that the state court has no record of the notice of post-

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conviction relief Plaintiff purportedly gave to an unnamed detention officer in December

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2012 (see Doc. 20 at 32), Judge Fine concluded that, “[w]ithout a properly filed post-

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conviction proceeding, there is no statutory tolling of the limitations period under [the]

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AEDPA.” Doc. 25 at 7-8. Judge Fine further concluded that equitable tolling does not

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apply because Nelson did not diligently follow up with the state court after providing the

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notice to the detention officer. Id. at 10-12 (citing Huizar v. Carey, 273 F.3d 1220, 1223

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(9th Cir. 2001)); Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016)). Because Nelson does

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not argue, let alone meet, the “actual innocence” excuse for untimeliness of this habeas

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proceeding, Judge Fine recommends that the petition be dismissed as untimely. Id. at 12.

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V.

Nelson’s Objections.

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Nelson does not object to Judge Fine’s conclusions that statutory tolling does not

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apply and that there has been no showing of actual innocence. See Doc. 25 at 8, 12.

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Nelson instead contends that he is entitled to equitable tolling because his state court

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attorney did not send him a Rule 32 packet and otherwise failed to help him prepare and

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file a petition for post-conviction relief. Docs. 26 at 4, 27 at 3. But as Judge Fine

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explained, “a petitioner’s pro se status [and] ignorance of the law . . . during the

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applicable filing period do not constitute extraordinary circumstances justifying equitable

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tolling.” Doc. 25 at 10 (citing Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006);

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Ballesteros v. Schriro, CIV 06-675-PHX-EHC (MEA), 2007 WL 666927, at *5 (D. Ariz.

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Feb. 26, 2007)).

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Nelson further contends that he did his part by providing a notice of post-

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conviction relief to the detention officer in December 2012, and waited more than five

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years for a response from the state court. Doc. 26 at 3. But this only confirms that

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Nelson was not “diligent in following up with the court after a ‘reasonable period of

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time.’” Doc. 25 at 11 (quoting Huizar, 273 F.3d at 1223). Indeed, he waited until

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October 2018 – nearly four months after bringing this federal habeas action – before

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filing anything with the state court about his purported earlier attempt to file for post-

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conviction relief. See id.; Doc. 20 at 32.

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Because Nelson has not shown that extraordinary circumstances made it

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impossible for him to file a timely habeas petition, he is not entitled to equitable tolling.

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See Valencia Pineda v. Allison, No. 1:19-cv-00260-DAD-EPG-HC, 2020 WL 756643, at

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*6 (E.D. Cal. Feb. 14, 2020) (petitioner failed to act with reasonable diligence where he

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waited four years to file a successive habeas petition after receiving no notice of the

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dismissal of his initial petition); Allard v. Montana, No. CV 16-63-M-DLC-JCL, 2017

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WL 7328928, at *5 (D. Mont. Dec. 12, 2017) (“Allard’s case is distinguishable from

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Huizar and Fue [because] . . . he waited nearly three years before inquiring of counsel as

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to the status of his case.”); Bethell v. Madden, No. 2:17-cv-07233-VAP-KES, 2017 WL

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7310095, at *3 (C.D. Cal. Nov. 13, 2017) (“In [Huizar and Fue], . . . the prisoners made

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some effort to follow-up to inquire about the status of their cases. Here, Petitioner makes

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no showing that he ‘diligently’ pursued his habeas request . . . after experiencing a

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twenty-eight month delay.”); Broxton v. Arnold, No. 2:16-cv-1548 GEB KJN P, 2017

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WL 1956221, at *5 (E.D. Cal. May 11, 2017) (“[P]etitioner’s first contact with the

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Superior Court was 33 months after he filed the petition. It is clear from the cases cited

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above that a delay of this magnitude does not demonstrate diligence.”) (citations

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omitted); see also Young v. Montgomery, No. CV-17-08995-MWF (JDE), 2018 WL

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4027010, at *5 (C.D. Cal. June 7, 2018) (“Petitioner ultimately filed his Petition without

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knowing whether the state habeas petition had been denied, further suggesting that he

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could have timely filed a federal habeas petition without awaiting a decision from the

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superior court.”).1

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IT IS ORDERED:

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1.

Judge Fine’s R&R (Doc. 25) is accepted.

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2.

Nelson’s petition for writ of habeas corpus (Doc. 13) is dismissed.

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3.

Nelson’s motion of ineffective counsel (Doc. 26) and motion to subpoena

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his attorney (Doc. 27) are denied.
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A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Nelson has not made a substantial showing of the denial of a

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

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5.

The Clerk is directed to enter judgment and terminate this action.

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Dated this 30th day of March, 2020.

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Nelson seeks leave to subpoena records from his former attorney to obtain proof
that she “instructed him to sign a plea of 10-years flat time” (Doc. 27 at 2), but does not
explain how the records sought are relevant to any issue addressed in the R&R.
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