United States District Court, D. Arizona
James E. Young, Petitioner,
Charles L. Ryan, Arizona Attorney General, Respondents.
REPORT AND RECOMMENDATION
MARK E. ASPEY, Magistrate Judge.
TO THE HONORABLE G. MURRAY SNOW:
Petitioner, who is pro se in this matter, docketed a motion seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 23, 2013. In an order issued September 12, 2014, the Court ordered Respondents to answer the petition. Respondents docketed a limited answer to the petition for habeas corpus relief on December 11, 2014. See Doc. 14 ("Answer"). On March 11, 2015, Petitioner docketed a reply to the answer to the petition. See Doc. 22.
I Procedural background
On December 8, 2000, Petitioner was indicted on one count of first degree murder, which indictment alleged Petitioner caused the premeditated death of his estranged common-law wife on October 17, 2000. See Doc. 14 (Answer), Exh. B. Petitioner was apprehended and arrested on this charge on June 13, 2001. Id., Exh. C. Petitioner was represented by retained counsel at his criminal trial. Id., Exh. D. A jury found Petitioner guilty as charged. Id., Exh. E. On March 15, 2002, pursuant to this conviction, Petitioner was sentenced to a term of natural life imprisonment. Id., Exh. F.
Petitioner took a timely direct appeal of his conviction and sentence. On January 30, 2003, the Arizona Court of Appeals affirmed Petitioner's conviction but remanded his case for resentencing, having found that Petitioner was incorrectly sentenced pursuant to Arizona Revised Statutes § 13-702 rather than section 13-703. Id., Exh. H. On January 28, 2005, Petitioner was re-sentenced to a term of life imprisonment with the possibility of parole after 25 years. Id., Exh. I.
Before he was resentenced Petitioner initiated a state action for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Id., Exh. K. Although the action was initially dismissed as premature, on November 19, 2004, on Petitioner's motion, the trial court reinstated Petitioner's Rule 32 action. Id., Exhs. L & M. Petitioner was represented by counsel in his Rule 32 proceedings. In his Rule 32 action Petitioner asserted, inter alia, that his trial counsel was ineffective because of her deteriorating health during his trial and her continuing use of prescription drugs for her deteriorating health during his trial. Petitioner also asserted that phone records admitted at his trial were incorrect. Id., Exh. N. In an order entered December 12, 2008, the state trial court granted post-conviction relief "on the grounds of unconstitutional ineffective assistance of counsel." Id., Exh. O. The state trial court vacated Petitioner's conviction and sentence, reinstated the original charge against Petitioner, and ordered a new trial. Id., Exh. O.
A jury found Petitioner guilty as charged after a second trial on the charge of first degree murder. Id., Exh. Q. Petitioner filed a motion seeking a new trial asserting that the verdict was contrary to the weight of the evidence, that he was subjected to prosecutorial misconduct, and that the trial court's evidentiary rulings violated Petitioner's right to due process of law. After hearing argument on the motion for new trial, the trial court denied the motion. Id., Exh. R.
On December 3, 2010, Petitioner was again sentenced to a term of life imprisonment with the possibility of parole after 25 years, and given credit for 3, 461 days of pre-sentence incarceration. Id., Exh. R.
Petitioner took a timely direct appeal of his second conviction and sentencing. Id., Exh. T. Petitioner argued that the trial court erred when it denied Petitioner's motions to dismiss the charges against him or remand the matter to the grand jury because the prosecution had presented false or misleading testimony to the grand jury. Petitioner also asserted that the trial court erred when it denied Petitioner's motion for a new trial. Id., Exh. U. Petitioner alleged that he was entitled to a new trial because there was insufficient evidence to support his conviction. Petitioner further maintained he was entitled to a new trial because the prosecutor engaged in misconduct, including a failure to provide the defense with the substance of testimony presented to the jury and the prosecutor's repeated referral to Petitioner's silence in her closing argument. Petitioner further asserted that the trial court's cumulative errors deprived him of a fundamentally fair trial. Id., Exh. U.
Thirteen days after Petitioner's opening brief in his direct appeal was docketed Petitioner filed a pro per motion to withdraw the brief, arguing that he was "aware that he will forever be barred if all issues not listed in this opening brief." Id., Exh. V. The Arizona Court of Appeals denied the motion to withdraw the brief and instructed Petitioner that his counsel "need not raise every issue on appeal requested by appellant" and that, "after the conclusion of this appeal, " if Petitioner believed that his appellate counsel was ineffective, he could "file a petition for post-conviction relief pursuant to the Arizona Rule of Criminal Procedure 32." Id., Exh. W.
The Arizona Court of Appeals affirmed Petitioner's conviction and sentence in a memorandum decision entered July 10, 2012. Id., Exh. Z. Inter alia, noting that a conviction may rest on circumstantial evidence, the Court of Appeals stated: "Our review of the evidence finds it more than sufficient to permit a finder of fact to conclude beyond a reasonable doubt that Young murdered S.C." Id., Exh. Z at 9. The court further found that Petitioner had raised two distinct claims of prosecutorial misconduct. With regard to Petitioner's argument that the prosecutor failed to disclose the content of a witness' testimony as required by Rule 15.1, Arizona Rules of Criminal Procedure, the appellate court found no abuse of discretion in allowing this testimony. The Court of Appeals also concluded "there [was] nothing improper in a prosecutor commenting on silence that is not Miranda - induced, " noting "there was nothing improper in the prosecutor reminding the jury that Young made efforts to avoid the police following the murder..." Id., Exh. Z at 11-12. The appellate court informed Petitioner that a petition for review to the Arizona Supreme Court was due on or before August 14, 2012. Id., Exh. BB. On August 24, 2012, because no petition for review had been filed, the Arizona Court of Appeals issued a mandate in Petitioner's direct appeal. Id., Exh. CC.
On August 28, 2012, Petitioner filed a pro per motion in the Arizona Court of Appeals "advising court of due process of law. Violation of Appellant's appeal by court & court appointed counsel, " alleging that the state trial courts and the prosecutors of abusing their power and disregarding the rules of the court. Id., Exh. DD. Respondents aver that the Arizona Court of Appeals did not rule on this motion. Id., Exh. LL.
On March 11, 2013, Petitioner filed a notice pursuant to Rule 32, Arizona Rules of Criminal Procedure, acknowledging that it was untimely. Id., Exh. EE. Petitioner alleged in his Rule 32 notice:
State has tried Defendant in violation of Double [Jeopardy] Clause since Judge Contes reversed conviction after finding of Grand Jury Indictment was based on False misleading statements of fact by Det. Laird. Prosecutorial misconduct continued prosecution misconduct. Police malfeasence (sic), fraud, perjury. Falsifing (sic) evidence by state, selective prosecution, judicial bias & prejudice. State attorney threatening and intimidation defence (sic) witness Valerie Smith on CD. Judge Contes violated Rules of Court & letter of law to protect 2 other Judges.
Id., Exh. EE. The state trial court interpreted these claims as an allegation that Petitioner's conviction and sentence were obtained in violation of his constitutional rights, i.e., his right to be free of double jeopardy, as a claim of prosecutorial misconduct, a claim of police misconduct and perjury, and a claim of judicial bias and prejudice. Id., Exh. FF.
On April 2, 2013, the trial court dismissed Petitioner's Rule 32 action as untimely because it was not filed within thirty days of the issuance of a final order or mandate of the appellate court in a direct appeal; in this matter the mandate was issued August 24, 2012, and the Rule 32 notice received March 11, 2013. Id., Exh. FF. The court noted that Petitioner had not asserted a claim which could be properly stated in an untimely or successive Rule 32 proceeding.
On May 24, 2013, Petitioner filed a pro per motion for reconsideration of the trial court's decision in his Rule 32 action, asking permission to file an untimely Rule 32 petition and seeking the appointment of counsel. Petitioner argued that his Rule 32 action was untimely because he is not an attorney and because he was "unaware of the Rules concerning time frames for filing a notice, of his intention to file a Rule 32-PCR appeal." Id., Exh. GG. On August 9, 2013, the state trial court denied the motion for reconsideration, finding that Petitioner had raised no cognizable basis for reconsideration, that he was not entitled to advisory counsel to pursue an untimely Rule 32 proceeding, and that his "claim of actual innocence is a conclusory statement unsupported by demonstrated facts, sworn testimony or required evidence." Id., Exh. HH.
In his federal habeas petition docketed December 23, 2013, Petitioner asserts he is factually and actually innocent of the crime of conviction, that he was subjected to double jeopardy, and that the prosecutor engaged in misconduct, depriving Petitioner of his right to due process of law. Petitioner further contends that exculpatory evidence was destroyed and that witnesses provided perjured testimony at his trial. Petitioner also alleges that he was denied his right to the effective assistance of trial counsel. Petitioner maintains he is "not a lawyer and ha[s] no legal training or understanding of law or rules."
Respondents assert: "This Court should dismiss, with prejudice, the remainder of Petitioner's habeas petition because: it is untimely; it does not raise claims that are cognizable in federal habeas; and all but two of Petitioner's subclaims are unexhausted..."
II Statute of limitations
The petition seeking a writ of habeas corpus is barred by the applicable statute of limitations found in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. See, e.g., Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011); Espinoza Matthews v. California, 432 F.3d 1021, 1025 (9th Cir. 2005); Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002). The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). See also Doe, 432 F.3d at 1011.
Petitioner's conviction became final on August 14, 2012, when the time expired for seeking review by the Arizona Supreme Court of the Arizona Court of Appeals' decision denying relief in Petitioner's direct appeal. The one-year statute of limitations regarding Petitioner's claims for federal habeas relief began to run on August 14, 2012, and expired on August 13, 2013. Petitioner's federal habeas action, docketed on December 23, 2013, is not timely filed.
The AEDPA provides that a petitioner is entitled to tolling of the statute of limitations during the pendency of a "properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2). See also Artuz v. Bennet, 531 U.S. 4, 8, 121 S.Ct. 361, 363-64 (2000); Stewart v. Cate, 757 F.3d 929, 934-35 (9th Cir.), cert. denied, 135 S.Ct. 341 (2014); Harris v. Carter, 515 F.3d 1051, 1053 (9th Cir. 2008). "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" the limitations period. 28 U.S.C. § 2244(d)(2). A state 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). However, a state petition that is not filed within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling of the federal statute of limitations during the time such a petition is "pending" in the state courts. See Pace v. DiGuglielmo, 544 U.S. 408, 413, 125 S.Ct. 1807, 1811-12 (2005). "When a postconviction petition is untimely under state law, that [is] the end of the matter' for purposes of § 2244(d)(2)." Id., 544 U.S. at 414, 125 S.Ct. at 1812.
Petitioner's untimely state action for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, did not toll the statute of limitations because the state court determined it was untimely as a matter of state law. See Allen v. Siebert, 552 U.S. 3, 5-6, 128 S.Ct. 2, 3-4 (2007); Cross v. Sisto, 676 F.3d 1172, 1176 (9th Cir. 2012).
The one-year statute of limitations for filing a habeas petition may be equitably tolled if extraordinary circumstances beyond a prisoner's control prevent the prisoner from filing on time. See Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 2554, 2562 (2010); Gibbs v. Legrand, 767 F.3d 879, 884-85 (9th Cir. 2014); Bills v. Clark, 628 F.3d 1092, 1096-97 (9th Cir. 2010). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418, 125 S.Ct. at 1814-15. See also Forbess v. Franke, 749 F.3d 837, 839-40 (9th Cir. 2014); Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012); Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011-14 (9th Cir. 2009). In Holland the Supreme Court eschewed a "mechanical rule" for determining extraordinary circumstances, while endorsing a flexible, "case-by-case" approach, drawing "upon decisions made in other similar cases for guidance." E.g., Bills, 628 F.3d at 1096-97.
The Ninth Circuit Court of Appeals has determined equitable tolling of the filing deadline for a federal habeas petition is available only if extraordinary circumstances beyond the petitioner's control make it impossible to file a petition on time. See Chaffer v. Prosper, 592 F.3d 1046, 1048-49 (9th Cir. 2010); Porter, 620 F.3d at 959 (noting the difference between attorney negligence and abandonment of counsel, which abandonment constitutes extraordinary circumstances); Waldron-Ramsey, 556 F.3d at 1011-14 & n.4; Harris v. Carter, 515 F.3d 1051, 1054-55 & n.4 (9th Cir. 2008). Equitable tolling is only appropriate when external forces, such as "abandonment" by the petitioner's counsel, the unavailability of a prison library, or a petitioner's mental disability, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. See Gibbs, 767 F.3d at 886-87; Forbess, 749 F.3d at 841; Sossa v. Diaz, 729 F.3d 1225, 1236 (9th Cir. 2013). Equitable tolling is also available if the petitioner establishes their actual innocence of the crimes of conviction. See Stewart, 757 F.3d at 937-38; Lee v. Lampert, 653 F.3d 929, 933-34 (9th Cir. 2011).
Equitable tolling is to be rarely granted. See, e.g., Waldon- Ramsey, 556 F.3d at 1011, quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) ("We have previously explained that the threshold necessary to trigger equitable tolling... is very high, lest the exceptions swallow the rule.'"). Petitioner must show that "the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Porter, 620 F.3d at 959. It is Petitioner's burden to establish that equitable tolling is warranted in his case. See, e.g., Porter, 620 F.3d at 959; Waldon-Ramsey, 556 F.3d at 1111; Espinoza Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2004).
In his reply to the answer to his petition, Petitioner asserts that evidence was not provided to the grand jury and that this evidence was discovered eight years after the grand jury issued the original indictment. Petitioner alleges that the County Attorney and the Phoenix Police Department withheld evidence from the defense and that DNA testing was not performed on some evidence. Petitioner alleges that he was convicted as a result of cumulative prosecutorial misconduct, including "witness tampering" and "witness intimidation." Petitioner asserts his ability to take an appeal of his conviction and sentences was hindered when he was denied transcripts and copies of pleadings. Petitioner alleges he was subjected to police malfeasance and that evidence favorable to him was improperly suppressed. Petitioner alleges that a police detective who testified in his grand jury proceedings was later terminated by the police department and found to have committed acts of fraud. Petitioner maintains he was subjected to judicial bias and prejudice. Petitioner further contends that he could not timely pursue post-conviction relief because he was not informed by his counsel or the courts as to the deadline for pursuing this avenue of relief.
Petitioner has not stated an adequate basis for equitable tolling of the statute of limitations. Compare Holland, 130 S.Ct. at 2564; Porter, 620 F.3d at 961 (noting the circumstances of cases determined before and after Holland). A petitioner's pro se status, ignorance of the law, and lack of legal representation during the applicable filing period do not constitute circumstances justifying equitable tolling because such circumstances are not "extraordinary." See, e.g., Chaffer, 592 F.3d at 1048-49; Waldron-Ramsey, 556 F.3d at 1011-14; Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004). The vicissitudes of prison life are not "extraordinary" circumstances that make it impossible to file a timely habeas petition. See, e.g., Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). Although Petitioner contends he was not informed by his counsel or the courts as to the deadlines for pursuing post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, the record indicates that Petitioner was informed of the requirements of this rule.
The Ninth Circuit Court of Appeals has held that a petitioner is entitled to tolling of the statute of limitations if they can establish that they are actually innocent of the crimes of conviction. See Lee, 653 F.3d at 934.
"Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar... [or] expiration of the statute of limitations." McQuiggin v. Perkins, , 133 S.Ct. 1924, 1928,  (2013). When an otherwise time-barred habeas petitioner "presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error, " the Court may consider the petition on the merits. See Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851,  (1995). The Supreme Court has recently cautioned, however, that "tenable actual-innocence gateway pleas are rare." McQuiggin, 133 S.Ct. at 1928. "[A] petitioner does not meet ...