Thompson v. Ryan et al

Filing 16

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus (State/2254) filed by Anthony Terrell Thompson. The Magistrate Judge recommends that the District Court enter an order DISMISSING the petition for writ of habeas corpus. Signed by Magistrate Judge Leslie A Bowman on 3/11/13. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Terrell Thompson,
Petitioner,

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vs.

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Charles L. Ryan; et al.,

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Respondents.

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No. CIV 11-815-TUC-FRZ (LAB)
REPORT AND
RECOMMENDATION

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Pending before the court is a petition for writ of habeas corpus filed on December 19,
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2011, by Anthony Terrell Thompson, an inmate confined in the Arizona State Prison Complex
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in Florence, Arizona. (Doc. 1) Thompson claims his plea of guilty was not knowing and
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voluntary and his trial counsel was ineffective. Id.
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Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate
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Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
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The Magistrate Judge recommends the District Court, after its independent review of the
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record, enter an order dismissing the petition. It is time-barred.
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Summary of the Case
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Thompson pleaded guilty to one count of sexual conduct with a minor under age fifteen
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pursuant to a plea agreement. (Doc. 10, p. 2) In accordance with the terms of that agreement,
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six other counts of sexual conduct were subsequently dismissed by the state. Id. On April 17,
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2006, the trial court gave Thompson a presumptive sentence of 20 years’ imprisonment. Id.,

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p. 3

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On May 15, 2006, Thompson filed notice of his Rule 32 of-right proceeding. Id. In his

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petition, Thompson argued his guilty plea was not knowing and voluntary because (1) the state

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failed to disclose Brady material that would have been useful for impeachment and (2) trial

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counsel was ineffective for failing to obtain that impeachment material. (Doc. 11-2, pp. 9-22)

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The trial court denied the petition on March 8, 2007. (Doc. 11-2, p. 24)

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The court of appeals granted review but denied relief on August 31, 2007. (Doc. 11-2,

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p. 34) Thompson did not file a petition for review before the Arizona Supreme Court. (Doc. 11,

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p. 3)

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On January 29, 2008, Thompson filed his second notice of post-conviction relief. Id.;

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(Doc. 11-2, p. 42) In his petition, Thompson argued his guilty plea was not knowing and

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voluntary because at the change of plea hearing, (1) the trial court misled Thompson into

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thinking he would receive a mitigated 13-year sentence and (2) the trial court urged Thompson

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to accept the plea agreement, which constituted improper participation in plea negotiations.

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(Doc. 11-3, pp. 2-10) The trial court denied the petition on April 3, 2009. (Doc. 11, p. 4) The

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trial court found the claims precluded and, in the alternative, without merit. Id.

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The court of appeals granted review but denied relief on August 31, 2009. (Doc. 11, p.

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4); (Doc. 11-4, p. 8) Thompson’s petition for review before the Arizona Supreme Court was

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denied on February 5, 2010. Id.; (Doc. 11-4, p. 12)

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On July 16, 2010, Thompson filed his third notice of post-conviction relief. (Doc. 11,

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p. 4); (Doc. 11-4) In his petition, Thompson argued his trial counsel was ineffective for failing

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to object to the trial court’s improper participation in plea negotiations. Id.; (Doc. 11-4, p. 15)

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The trial court denied the petition as precluded on August 24, 2010. Id.; (Doc. 11-4, p. 22)

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Thompson filed a motion for reconsideration that was denied on October 20, 2010. Id.; (Doc.

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11-4, p. 25)

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The court of appeals granted review but denied relief on February 15, 2011. (Doc. 11,

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p. 4); (Doc. 11-4, p. 29) Thompson’s petition for review before the Arizona Supreme Court was

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denied on August 8, 2011. Id.; (Doc. 11-4, p. 35)

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On December 15, 2011, Thompson filed the pending petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. (Doc. 1) He argues his plea of guilty was not knowing and

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voluntary because (1) the trial court failed to advise him that because his seven counts were

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factually related, he did not face seven consecutive sentences if he lost at trial, (2) the trial court

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and trial counsel failed to realize that his offense was not a class 2 felony because the thirteen-

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year-old victim told him that she was seventeen years old, (3) the trial court erroneously stated

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that Thompson was precluded from arguing at trial that he believed the victim was seventeen

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years old, (4) the trial court mislead him into believing he would receive a mitigated sentence,

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and (5) the trial court improperly participated in plea negotiations. (Doc. 1); see also (Doc. 11-

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1, p. 62) He further argues (6) trial counsel was ineffective for failing to challenge the trial

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court’s errors. (Doc. 1)

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On May 14, 2012, the respondents filed an answer arguing among other things that the
petition is time-barred. (Doc. 11) Thompson filed a reply on June 13, 2012. (Doc. 14)

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Discussion

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

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A one-year limitation

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period applies to persons in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d).

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The statute reads in pertinent part as follows:

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A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of--

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(A)

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(1)

the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;

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(2)

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The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.

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28 U.S.C. § 2244(d).
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The limitation period for Thompson’s claims was triggered on “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)(A). On August 31, 2007, the court of appeals
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affirmed the trial court’s denial of Thompson’s Rule 32 of-right proceeding. Thompson then
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had 30 days to file a petition for review before the Arizona Supreme Court. Ariz.R.Crim.P.
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31.19(a). His judgment became final on October 1, 2007,1 when he failed to do so. See
Summers v. Schriro, 481 F.3d 710, 716 -717 (9th Cir. 2007) (“We therefore conclude that

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Arizona’s Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review
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within the meaning of 28 U.S.C. § 2244(d)(1)(A).”); Hemmerle v. Schriro, 495 F.3d 1069,
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1073-74 (9th Cir. 2007), cert. denied, 555 U.S. 829 (2008).

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The one-year limitation period began running the next day and ran for 119 days until it
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was tolled on January 29, 2008, when Thompson filed his second notice of post-conviction
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relief. See 28 U.S.C. § 2244(d)(2). Tolling pursuant to § 2244(d)(2) continued until his petition
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for review before the Arizona Supreme Court was denied on February 5, 2010.
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The limitation period began running again the next day and ran for an additional 160
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days until July 16, 2010, when Thompson filed his third notice of post-conviction relief. See
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28 U.S.C. § 2244(d)(2). Tolling pursuant to § 2244(d)(2) continued until his petition for review
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before the Arizona Supreme Court was denied on August 8, 2011.
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The one-year limitation period began running the next day and expired 86 days later on
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November 3, 2011.2 Thompson filed his petition in this court on December 19, 2011. It is time-

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barred.
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Because the 30th day, September 30, 2007, is a Sunday, the deadline ends on the next Monday,
October 1, 2007. Ariz.R.Crim.P. 1.3 (a).
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119 days +160 days +86 days =365 days.
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Thompson argues his petition is timely because he filed it within one year from the date

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the Arizona Supreme Court denied his third post-conviction relief petition. (Doc. 14, p. 5) He

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is incorrect. His judgment became final at “the conclusion of direct review or the expiration of

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the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). This occurred when the court

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of appeals affirmed the trial court’s denial of his Rule 32 of-right proceeding and he failed to

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file a petition for review before the Arizona Supreme Court. Hemmerle, 495 F.3d at 1073-74.

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The limitation period began to run the next day and ran until he filed his second notice of post-

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conviction relief. The limitation period began to run again when his second post-conviction

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relief proceeding ended and ran until he filed his third post-conviction relief notice. When his

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third post-conviction relief proceeding ended, his limitation period began running a third time.

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It expired before the pending petition was filed.

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In the alternative, Thompson argues this court “should find that petitioner’s second and

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third petitions for post-conviction relief are attempts to correct the deficiencies of Mr.

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Thompson’s ineffective assistance of trial counsel’s claims, and the issue of the trial court’s

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colloquy about the plea agreement and consider the merits.” (Doc. 14, p. 6) (emphasis added)

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Because he uses the phrase “correct the deficiencies,” the court believes Thompson is

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invoking the “gap” tolling rule discussed in Hemmerle v. Schriro. See Hemmerle, 495 F.3d at

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1075. He is not.

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In Hemmerle, the court considered whether the petitioner was entitled to “gap” tolling

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between the dismissal of his first notice of post-conviction relief (for failing to file a timely

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petition) and the filing of his second notice of post-conviction relief. Hemmerle, 495 F.3d at

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1075. The court stated that if the second notice “simply attempted to correct the deficiencies

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in the prior petition,” both notices would be considered part of one “full-round” of collateral

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review and the limitation period would be tolled during this “gap.” Id. (emphasis added) The

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Hemmerle rule applies to tolling within a single round of post-conviction relief.

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This case is different. Thompson does not argue he is entitled to tolling within a single

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round of collateral review. Instead, Thompson argues he is entitled to tolling between rounds

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of collateral review because his second and third rounds of collateral review were simply
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attempts to “correct the deficiencies” in his first round. The period between separate rounds of

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collateral review, however, is not tolled because there is nothing pending before the state court

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at that time. Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (“Only the time period during

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which a round of habeas review is pending tolls the statute of limitation; periods between

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different rounds of collateral attack are not tolled.”); cert. denied, 131 S.Ct. 3023 (2011). The

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Hemmerle rule does not apply to the gaps between Thompson’s three separate rounds of

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collateral review. Hemmerle, 495 F.3d at 1075.

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RECOMMENDATION

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The Magistrate Judge recommends that the District Court, after its independent review

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of the record, enter an order DISMISSING the petition for writ of habeas corpus. (Doc. 1) It

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is time-barred.

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

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14 days of being served with a copy of this report and recommendation. If objections are not

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timely filed, they may be deemed waived.

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The Clerk is directed to send a copy of this report and recommendation to the petitioner
and the respondents.
DATED this 11th day of March, 2013.

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