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Tucker v. Ryan

United States District Court, Ninth Circuit

November 25, 2013

Milton Lee Tucker, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

LAWRENCE O. ANDERSON, Magistrate Judge.

This matter is before the Court on Petitioner's pro se Amended Petition for Writ of Habeas Corpus (the "Petition"), pursuant to 28 U.S.C. § 2254, in which Petitioner challenges his criminal convictions in Maricopa County Superior Court, State of Arizona, Case No. CR 159112. (Doc. 7) Respondents have filed an Answer to Petition for Writ of Habeas Corpus (the "Answer") and Petitioner has filed a Reply. (Docs. 17, 19) As explained below, the undersigned Magistrate Judge recommends the Petition be denied as untimely.

I. Background

A. Factual Summary

The Arizona Court of Appeals summarized the facts of the State criminal case as follows:

On June 12, 1986, the appellant and Raymond Rigsby robbed a bank in Mesa, Arizona. The appellant took $611 from a bank teller at gunpoint while Rigsby waited outside in a running car. Police officers of the Mesa Police Department were watching the appellant and gave chase after the robbery. When the appellant attempted to flee on foot, pursuing police officers ordered him to stop. The appellant turned and fired his gun at the officers, who returned fire. The appellant was captured shortly after the shooting incident.

(Doc. 17, Exhibit ("Exh.") E)

B. Trial and Sentencing

On June 20, 1986, Petitioner was indicted on one count of Armed Robbery, a Class 2 dangerous felony under Arizona law, and one count of Aggravated Assault, a Class 3 dangerous felony. (Doc. 17, Exh. A, E) Following a jury trial in the Superior Court in October 1986, Petitioner was convicted of both counts.[1] ( Id. ) Based on his prior felony convictions and other aggravating factors, Petitioner was sentenced on November 18, 1986, to 28 years in prison for the armed robbery conviction and a consecutive term of 20 years in prison for the aggravated assault conviction. ( Id. )

C. Direct Appeal

Petitioner, through counsel, filed a timely Notice of Appeal on November 24, 1986. (Doc. 17, Exh. B) After briefing was completed, the Arizona Court of Appeals issued a Memorandum Decision on February 2, 1988, in which it affirmed Petitioner's convictions and sentences. (Doc. 17, Exh. E) Petitioner, again through counsel, filed a Petition for Review to the Arizona Supreme Court on March 2, 1988. (Doc. 17, Exh. F) The Court denied review on April 20, 1988. (Doc. 17, Exh. H)

D. State Post-Conviction Proceedings

On June 6, 1988, Petitioner filed a pro se Petition for Post-Conviction Relief. (Doc. 17, Exh. J) Pursuant to Petitioner's request, the trial court appointed counsel to represent Petitioner in the post-conviction proceedings. (Doc. 17, Exh. K) On June 30, 1988, counsel filed a Notice of Non-Supplementation of Petitioner's Post-Conviction Relief Petition, in which he stated that, after review of the record and Petitioner's pro se petition, he found no basis to amend or supplement what Petitioner filed. (Doc. 17, Exh. L) The State of Arizona filed a Response to Petition for Post-Conviction Relief on the same day as counsel's notice was filed. (Doc. 17, Exh. M) The trial court summarily dismissed the petition on July 5, 1988. (Doc. 17, Exh. N)

On July 15, 1988, Petitioner filed a Motion for Rehearing, which was denied. (Doc. 17, Exhs. P, R) After Petitioner filed, and the trial court granted, a Motion for Leave to File a Delayed Petition for Review, Petitioner filed a Petition for Review to the Arizona Court of Appeals. (Doc. 17, Exhs. S, T and U) On July 5, 1990, the Court of Appeals issued a Memorandum Decision, granting review but denying relief. (Doc. 17, Exh. V) Petitioner's subsequent Petition for Review to the Arizona Supreme Court was denied on February 19, 1991. (Doc. 17, Exhs. W, X)

According to portions of the State-court record provided by Respondents, Petitioner submitted nothing else to challenge his convictions in the State case until he filed a "Motion for Void Judgment" in the Superior Court on January 25, 2011. (Doc. 17, Exh. Z) He then filed a "Motion of Petition for the Court to Take Mandatory Judicial Notice, " on March 22, 2011. (Doc. 17, Exh. AA) The motion lists two Maricopa County Superior Court case numbers, the one at issue in the instant Petition, CR-159112, and CR-110385. The latter case number is the subject of another petition filed by Petitioner in CV-12-1909-PHX-NVW (LOA), for which a second Report and Recommendation is being issued simultaneously herewith. On October 11, 2011, Petitioner filed in the Superior Court a document titled "Acceptance of Contract, " which is in the form of a letter to Attorney General Tom Horne.[2] (Doc. 17, Exh. BB)

On December 6, 2011, Petitioner filed a Petition for Review in the Arizona Court of Appeals. (Doc. 17, Exh. CC) The Court of Appeals dismissed the matter on December 9, 2011, because "the trial court ha[d] not entered any final order in post-conviction relief proceedings." (Doc. 17, Exh. DD)

On December 15, 2011, the trial court issued an order, addressing Petitioner's "Motion of Petition for the Court to Take Mandatory Judicial Notice, " filed on March 22, 2011, and Petitioner's "Acceptance of Contract, " filed on October 11, 2011.[3] (Doc. 17, Exh. EE) In the order, the Superior Court construed Petitioner's "Motion of Petition for the Court to Take Mandatory Judicial Notice" as a petition for post-conviction relief. ( Id. )

With regard to CR-159112, the State case being challenged in the instant Petition, the Superior Court dismissed the post-conviction proceedings because Petitioner had previously filed a post-conviction relief petition on June 6, 1988. ( Id. ) The trial court treated the new notice of post-conviction relief as successive and determined the claims contained therein were precluded.[4] ( Id. )

On January 18, 2012, Petitioner filed a Petition for Review in the Arizona Court of Appeals, challenging the trial court's dismissal of post-conviction proceedings in CR-159112.[5] (Doc. 17, Exh. FF) The Court of Appeals treated the Petition for Review as a Petition for Special Action, at least as to CR-159112, and declined jurisdiction on February 3, 2012. (Doc. 17, Exh. GG)

E. Federal Habeas Petition

On December 6, 2012, Petitioner filed his Amended Petition for Writ of Habeas Corpus in this District Court.[6] (Doc. 7) Petitioner raises nineteen grounds for relief in the Petition. In Ground One, Petitioner alleges the Maricopa County Superior Court had no jurisdiction over his case because it failed to prove its jurisdiction in response to Petitioner's jurisdictional challenge. In Ground Two, Petitioner alleges the Superior Court did not have jurisdiction or authority to convert his "Motion for Void Judgment and Motion to Dismiss: No Contract" into a petition for post-conviction relief under Rule 32, Arizona Rules of Criminal Procedure. In Ground Three, Petitioner alleges the Superior Court defaulted when it failed to address the "Motion for Void Judgment and Motion to Dismiss: No Contract, " which he submitted on January 19, 2011. In Ground Four, Petitioner alleges the State statutes used to convict him in this case did not have enacting clauses. Thus, he contends the Superior Court did not have subject matter jurisdiction. In Ground Five, Petitioner alleges the Superior Court Judge who presided over his trial and sentencing "did not have a valid and lawful oath of office secured by a fidelity bond on file." In Ground Six, Petitioner claims the Superior Court did not have subject matter jurisdiction because there were no original charging documents, including an arrest warrant, an information, and a supporting affidavit. In Ground Seven, Petitioner alleges the United States and the State of Arizona are not sovereign. In Ground Eight, Petitioner alleges his identity was "concealed by novation, " and an artificial person was named in the case. In Ground Nine, Petitioner alleges the United States and the State of Arizona are bankrupt and cannot participate in court actions. In Ground Ten, Petitioner alleges the statutes used to charge him in the State case are copyrighted and not for public use. In Ground Eleven, Petitioner alleges the Superior Court was a commercial tribunal and not a criminal tribunal. In Ground Twelve, Petitioner alleges his criminal sentence in the State case was actually a debt for which he cannot be imprisoned. In Ground Thirteen, Petitioner alleges his sentence in the State case was unlawful because the Superior Court Judge's discretion was unlawfully restricted by mandatory sentencing. In Ground Fourteen, Petitioner alleges double jeopardy based on the trial court's refusal to sever his trial from his co-defendant's until prejudicial statements by his co-defendant forced a mistrial and subsequent retrial. In Ground Fifteen, Petitioner alleges a violation of his right to a speedy trial. In Ground Sixteen, Petitioner alleges judicial misconduct based on the trial judge's alleged failure to ensure his right to a speedy trial, and for allegedly forcing a mistrial that resulted in a double jeopardy violation. In Ground Seventeen, Petitioner alleges the trial judge unlawfully imposed consecutive sentences. In Ground Eighteen, Petitioner alleges his two armed robbery convictions in CR-110385 were unlawfully used to enhance his sentence in the instant case, CR-159112. Lastly, in Ground Nineteen, Petitioner alleges a conflict of interest in that both his defense counsel and the prosecutor were employed by Maricopa County.

On April 23, 2013, Respondents filed their Answer and supporting exhibits. (Doc. 17) Petitioner then filed his Reply on June 7, 2013. (Doc. 19)

II. Discussion

Respondents argue the Petition should be dismissed as time-barred because it was not filed within one year of the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Alternatively, Respondents contend the Petition fails to state a valid claim for relief as Petitioner's claims are vague, conclusory, and fail to specify the nature of any alleged constitutional violation. Respondents also argue Petitioner's claims are procedurally defaulted.

Because the information presented clearly establishes the Petition was filed after the limitations period expired, the undersigned Magistrate Judge finds the Petition is barred and recommends it be denied on that basis. It is, therefore, unnecessary to address Respondents' alternative arguments.

A. Legal Standards

The AEDPA imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1).[7] The statute provides:

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-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) 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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Additionally, "[t]he 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" the limitations period. 28 U.S.C. § 2244(d)(2); Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). An application for post-conviction relief remains "pending" for purposes of the tolling provision in § 2244(d)(2) until it achieves final resolution through the state's post-conviction procedure. Carey v. Saffold, 536 U.S. 214, 219-220 (2002). A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition itself may not be filed until later. Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004) ("[W]e hold that Isley's state petition was "pending" within the meaning of 28 U.S.C. § 2244(d)(2) and he was entitled to tolling from the date when the Notice was filed. The district court erred in dismissing his petition as untimely.").

An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey, 536 U.S. at 223). The time between a first and second application for post-conviction relief, however, is not tolled because no application is "pending" during that period. Id .; see also King v. Roe, 340 F.3d 821 (9th Cir. 2003) (The petitioner was "not entitled to tolling during the interval between the completion of one round of state collateral review and the commencement of a second round of review."), abrogated on other grounds by Evans v. Chavis, 546 U.S. 189 (2006). Moreover, filing a new petition for post-conviction relief does not reinitiate a limitations period that ended before the new petition was filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

State prisoners whose convictions became final before the AEDPA effective date of April 24, 1996, had a one-year grace period in which to file their habeas petitions. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). Thus, absent any tolling, the deadline to file a habeas petition under these circumstances was April 24, 1997. Id. at 1246.

The AEDPA statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). For equitable tolling to apply, a petitioner must show "(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way" that prevented him from filing a timely petition. Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (internal quotation marks omitted).

B. Analysis

1. Limitations Period

Here, Petitioner's judgment of conviction and sentences were imposed on November 18, 1986. (Doc. 17, Exh. A) Direct review ended when the time expired for Petitioner to file a petition for writ of certiorari with the United States Supreme Court following the Arizona Supreme Court's denial of review on April 20, 1988. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (holding that "the period of direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition."). Petitioner's first post-conviction proceeding, which began on June 6, 1988, when he filed a pro se Petition for Post-Conviction Relief, ended on February 19, 1991, when the Arizona Supreme Court denied his Petition for Review.

Because Petitioner's convictions became final well before the AEDPA was enacted in 1996, Petitioner had a one-year grace period, until April 24, 1997, to file a federal habeas petition. See Patterson, 251 F.3d at 1245. As indicated above, Petitioner submitted the original Petition to this District Court on August 31, 2012, more than fifteen years after the AEDPA deadline.

Additionally, statutory tolling of the limitation period is inapplicable here. Petitioner's "Motion of Petition for the Court to Take Mandatory Judicial Notice, " construed as a second petition for post-conviction relief, was not filed until March 22, 2011, almost fourteen years after the limitations period had expired. The time between the termination of Petitioner's first post-conviction proceeding on February 19, 1991, and his second application for post-conviction relief on March 22, 2011, was not tolled because no application was "pending" during that period. See Biggs, 339 F.3d at 1048 (holding that the time between the completion of a first round of post-conviction review and the beginning of a second round is not tolled). As a result, Petitioner's second petition for post-conviction relief, filed in 2011, had no impact on the already-expired limitations period. See Ferguson, 321 F.3d at 823. For these reasons, this federal Petition was untimely filed.

2. Equitable Tolling

As referenced above, the limitations period set forth in § 2244(d) is subject to equitable tolling where a petitioner shows he has been pursuing his rights diligently and extraordinary circumstances prevented the petitioner from filing a timely petition. Holland, 130 S.Ct. at 2562. Equitable tolling is applied sparingly, as reflected by the "extraordinary circumstances" requirement. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling is not available in most cases. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under the AEDPA] is very high, lest the exceptions swallow the rule.") (citation omitted). An "external force must cause the untimeliness, rather than, as we have said, merely oversight, miscalculation or negligence on [the petitioner's] part.'" Waldron-Ramsey, 556 F.3d at 1011(quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). A pro se petitioner's ignorance of the law and lack of legal sophistication do not constitute "extraordinary circumstances" warranting equitable tolling. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (collecting cases from other circuits and holding that "a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance"); see also Johnson v. United States, 544 U.S. 295, 311 (2005) (in the 28 U.S.C. § 2255 context, rejecting movant/prisoner's attempt to justify his lack of diligence on his pro se status and lack of legal sophistication and stating: "we have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness"); Waldron-Ramsey, 556 F.3d at 1013 n. 4 ("a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling"), cert. denied, 558 U.S. 897 (2009). A petitioner seeking equitable tolling bears the burden of demonstrating it is warranted in his case. Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (citing, inter alia, Holland, 130 S.Ct. at 2562).

Here, Petitioner has failed to show extraordinary circumstances stood in his way, preventing him from filing a timely federal petition. In the section of the Petition that directed Petitioner to explain why the one-year statute of limitations in 28 U.S.C. § 2244(d) does not bar the Petition, Petitioner simply asserted, without explanation, that it does not apply. (Doc. 7 at 27) Petitioner also addressed the timeliness issue in his Reply, writing he had never heard of the AEDPA and was "suspicious" of whether Respondents are correctly applying the statute to this case. (Doc. 19 at 7) Thus, Petitioner has presented no basis to apply equitable tolling.

C. Conclusion

For the foregoing reasons, this Magistrate Judge finds Petitioner filed the Petition after the limitations period expired. In addition, this Magistrate Judge finds there is no legal or factual basis to apply statutory or equitable tolling. Consequently, the Petition is barred by the AEDPA's statute of limitations.

Based on the foregoing,

IT IS RECOMMENDED that the Amended Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, doc. 7, be DENIED;

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, must not be filed until entry of the District Court's judgment. The parties have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (b), and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the undersigned Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.


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