Bevel v. Ryan et al

Filing 14

REPORT AND RECOMMENDATION re: 1 Petition for Writ of Habeas Corpus (State/2254). The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition for writ of habeas corpus. It is time-barred. Any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. Signed by Magistrate Judge Leslie A Bowman on 4/10/14. (See attached PDF for complete information.) (KAH)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gregory A. Bevel, Petitioner, 10 11 vs. 12 Charles L. Ryan; et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) No. CIV 12-823-TUC-FRZ (LAB) REPORT AND RECOMMENDATION 15 Pending before the court is a petition for writ of habeas corpus filed on November 6, 16 2012, by Gregory Allen Bevel, an inmate confined in the Arizona State Prison Complex in 17 Florence, Arizona. (Doc. 1) Bevel claims sentencing error and ineffective assistance of 18 counsel. 19 Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate 20 Judge Bowman for report and recommendation. LRCiv 72.2(a)(2). 21 The Magistrate Judge recommends the District Court, after its independent review of the 22 record, enter an order dismissing the petition. It is time-barred. 23 24 Summary of the Case 25 On March 4, 2002, Bevel pleaded guilty pursuant to a plea agreement to sexual conduct 26 with a minor and sexual conduct with a minor under fifteen. (Doc. 11-1, p. 2) On April 1, 27 28 1 2002, the trial court sentenced Bevel to 25 years’ imprisonment followed by lifetime probation. 2 (Doc. 11-1, pp. 13-14) 3 Approximately eight years later on April 19, 2010, Bevel filed notice of post-conviction 4 relief in the trial court. (Doc. 11-1, p. 17) Appointed counsel was unable to find any colorable 5 claims, so Bevel was given the opportunity to file a petition pro se. (Doc. 11-1, pp. 36-39) On 6 June 16, 2011, Bevel filed his petition in which he claimed (1) “his plea was not voluntarily and 7 intelligently made because he was not told that he had a right to have a jury determine the truth 8 of any aggravators alleged by the State” and because he suffered from mental delusions, (2) 9 counsel was ineffective for failing to “assert his client’s critical issues” such as “Defendant’s 10 mental illness – (PTSD),” and (3) his sentence was disproportionate in violation of State v. 11 Gonzalez, 216 Ariz. 11, 162 P.3d 650 (2007). (Doc. 11-1, pp. 45-46); (Doc. 11-2, p. 28, n. 2) 12 In its response, the state argued, among other things, that counsel was not ineffective for failing 13 to raise Bevel’s mental health issues because the trial court was already appraised of his mental 14 health issues in the pre-sentence report, which discussed his suicidal thoughts after arrest and 15 his history of sexual abuse. (Doc. 11-2, p. 10) Moreover, the report contains a statement made 16 by Bevel that “he did not feel he needed psychiatric treatment.” (Doc. 11-2, p. 10) 17 The trial court denied the petition on August 17, 2011. (Doc. 11-2, p 27) The court 18 found most of Bevel’s claims precluded as untimely. (Doc. 11-2, p. 29) His Blakely claim was 19 denied on the merits, and his Gonzalez claim was denied as not ripe. (Doc. 11-2, pp. 29-30) 20 Bevel filed a motion for reconsideration arguing his mental disorder rendered his plea 21 neither intelligent nor voluntary and requesting a hearing on his competency. (Doc. 11-2, p. 33) 22 The trial court denied the motion summarily. (Doc. 11-2, p. 37) On February 17, 2012, the 23 Arizona Court of Appeals granted review but denied relief. (Doc. 11-2, p. 51) The Arizona 24 Supreme Court denied review on July 24, 2012. (Doc. 11-2, p. 59) 25 On November 5, 2012, Bevel filed the pending petition for writ of habeas corpus 26 pursuant to 28 U.S.C. § 2254. (Doc. 1, p. 11) He argues (1) his sentence violates Blakely v. 27 Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004); (2) trial counsel was ineffective for, among 28 other things, failing “to request that a psychiatric evaluation of the defendant’s competency be -2- 1 done at the pre-trial stage of the proceedings”; (3) his sentence was disproportionate; and (4) 2 his sentence of lifetime probation violates State v. Gonzalez, 216 Ariz. 11, 162 P.3d 650 (2007) 3 because that case changes the sentencing range he would face if he violates his probation. (Doc. 4 1) 5 6 On March 19, 2013, the respondents filed a limited answer arguing among other things that the petition is time-barred. (Doc. 13) Bevel filed a reply on April 22, 1013. (Doc. 12) 7 8 Discussion 9 The writ of habeas corpus affords relief to persons in custody in violation of the 10 Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, 11 however, must be filed within the applicable statute of limitations or it will be dismissed. The 12 statute of limitations reads in pertinent part as follows: 14 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-- 15 (A) 13 (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; 16 * * * 17 (C) 18 19 the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 20 * * * 21 (2) 22 23 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. 24 28 U.S.C. §§ 2244(d)(1) & (d)(2). The “one-year statute of limitations . . . applies to each claim 25 in a habeas application on an individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1170 (9th 26 Cir. 2012). 27 The limitation period for all of Bevel’s claims was triggered on “the date on which the 28 judgment became final by the conclusion of direct review or the expiration of the time for -3- 1 seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The Blakely claim does not trigger a later 2 limitation period pursuant to 28 U.S.C. § 2244(d)(1)(C) because the right recognized in Blakely 3 does not apply retroactively. Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005). The 4 Gonzalez claim does not trigger a later limitation period pursuant to 28 U.S.C. § 2244(d)(1)(C) 5 because Gonzalez is not a Supreme Court case. 6 The limitation period for all claims is determined by section 2244(d)(1)(A). Bevel was 7 sentenced on April 1, 2002. (Doc. 11-1, pp. 13-14) He had 90 days to file notice of his Rule 8 32 of-right petition. Ariz.R.Crim.P. 32.4(a). When he did not file a timely notice, his judgment 9 became final when the deadline1 passed – July 1, 2002. See Summers v. Schriro, 481 F.3d 710, 10 711 (9th Cir. 2007) (“AEDPA’s one-year statute of limitations does not begin to run until the 11 conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the 12 expiration of the time for seeking such proceeding or review.”). The limitation period began 13 running the next day and expired one year later on July 1, 2003. The pending petition was filed 14 more than nine years later on November 5, 2012. (Doc. 1, p. 11) It is time-barred. 15 The limitation period is subject to equitable tolling “but only when extraordinary 16 circumstances beyond a prisoner’s control make it impossible to file a petition on time and the 17 extraordinary circumstances were the cause of his untimeliness.” Laws v. Lamarque 351 F.3d 18 919, 922 (9th Cir. 2003) (internal punctuation omitted). “Indeed, the threshold necessary to 19 trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.” 20 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (punctuation modified), cert. denied, 21 537 U.S. 1003 (2002). In this case, Bevel argues his “mental illness caused him to delay, in 22 filing his petition.” (Doc. 12, p. 7) 23 In the Ninth Circuit, mental impairment can trigger equitable tolling but only if the 24 impairment is so severe that the “petitioner was unable rationally or factually to personally 25 understand the need to timely file” or the “petitioner’s mental state rendered him unable 26 27 28 1 The 90th day, June 30, 2002, is a Sunday, so the deadline expired the next day, July 1, 2002. Ariz.R.Crim.P. 1.3. -4- 1 personally to prepare a habeas petition and effectuate its filing.” Bills v. Clark, 628 F.3d 1092, 2 1099-1100 (9th Cir. 2010). 3 Here, however, the trial court found Bevel mentally competent to enter his plea of guilty. 4 (Doc. 11-1, p. 2) And over the years, various state courts rejected Bevel’s claim that he suffered 5 from a mental disorder of sufficient severity that his plea was not made voluntarily and 6 intelligently. These factual findings as to Bevel’s mental condition are presumed to be correct 7 absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). Bevel, however, 8 offers no evidence establishing the severity of his alleged mental impairment aside from his own 9 unsupported statements. (Doc. 12) Bevel therefore is not entitled to equitable tolling. See, e.g., 10 Fisher v. Gibson, 262 F.3d 1135, 1144 (10th Cir. 2001) (The defendant’s alleged mental 11 impairment did not justify equitable tolling in part because “the state trial judges made their own 12 observations of [the defendant’s] competence to enter his pleas of guilty . . . .”), cert. denied, 13 535 U.S. 1034 (2002); Cadmus v. Pennsylvania, 2013 WL 3524700, 3 (M.D.Pa.2013) 14 (rejecting argument that mental impairment justified equitable tolling). 15 16 RECOMMENDATION 17 The Magistrate Judge recommends that the District Court, after its independent review 18 of the record, enter an order Dismissing the petition for writ of habeas corpus. (Doc. 1) It is 19 time-barred. 20 Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 21 14 days of being served with a copy of this report and recommendation. If objections are not 22 timely filed, they may be deemed waived. 23 24 25 The Clerk is directed to send a copy of this report and recommendation to the petitioner and the respondents. DATED this 10th day of April, 2014. 26 27 28 -5-

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