United States District Court, D. Arizona
REPORT & RECOMMENDATION ON CERTIFICATE OF APPEALABILITY
JAMES F. METCALF, Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Background - On January 15, 2015, the undersigned filed an Amended Report and Recommendation (Doc. 19) recommending the dismissal of Petitioner's habeas Petition as barred under the habeas statute of limitations. That recommendation was based in part on a conclusion that Petitioner had not shown the applicability of the prisoner mailbox rule with regard to his first petition for review to the Arizona Court of Appeals, and thus that petition was untimely and did not delay the commencement of the habeas limitations period. The Report & Recommendation further found that the Court need not resolve the authority of the habeas court to rethink a state court's ruling that a post-conviction petition was untimely because Petitioner's second PCR petition was properly found to be untimely under Arizona law.
Petitioner then filed an Objection (Doc. 20) arguing that his first petition for review was entitled to application of the prison mailbox rule, and providing an affidavit supporting the contention.
In the Order filed March 4, 2014 (Doc. 23), the Court concluded that this habeas Court could not second guess the state court's timeliness ruling, but found that if it could, it would find the first petition for review was timely by application of the state's prison mailbox rule. The Court reasoned that the Arizona Supreme Court may have overlooked the extension granted by the Arizona Court of Appeals, and thus concluded that the petition was untimely even with the application of the prison mailbox rule. On that basis, the Court also concluded that Petitioner's second PCR petition was improperly dismissed as untimely, under the assumption that the PCR court had calculated its due date from the PCR court's denial of the first PCR petition rather than the dismissal of the petition for review.
Despite its ruling that the Petition should be dismissed as untimely, the Court granted a certificate of appealability. In doing so, the Court observed:
In this case, Supreme Court and Ninth Circuit case law appears to make it clear that, for purposes of tolling § 2244(d)'s statute of limitations, a state court's determination that a prisoner filed his state petition untimely is "the end of the matter." However, the unusual equities of this case may make it appropriate for further scrutiny on appeal. Therefore, a certificate of appealability will be granted.
(Order 3/4/14, Doc. 20 at 5.)
Motion to Amend/Correct Judgment - On March 5, 2015, Respondents filed a Motion to Amend/Correct Judgment (Doc. 25), arguing that that the March 4, 2015 Order (Doc. 23) failed to specify a substantive claim with respect to which Petitioner had shown that reasonable jurists could disagree, and thus asked for an amendment to either deny a certificate of appealability or to clarify the meritorious claim.
In response, on March 9, 2015, the Court "temporarily" vacated its Order on the Report and Recommendation and the resulting Judgment, and referred the Motion to Amend (Doc. 25) to the undersigned for a further report & recommendation after further briefing. The report & recommendation is to be limited to determining "whether Petitioner's substantive claims for relief are sufficiently meritorious to justify issuance of a certificate of appealability." (Order 3/9/15, Doc. 26 at 2.) The Court reiterated that it stands by the conclusion that jurists of reason would find debatable the Court's procedural ruling.
Consequently, the Court set a briefing schedule on the Motion to Amend/Correct Judgment, such briefing to be limited to the issue of the certificate of appealability, i.e whether Petitioner has made a substantive claim for relief which is sufficiently meritorious to justify issuance of a certificate of appealability. (Order 3/12/15, Doc. 27.)
In doing so, the Court noted that Respondents had addressed the merits of Petitioner's claims in their Answer (Doc. 14), and Petitioner had already replied thereto (Doc. 15). Consequently, the parties were directed to only address whether there is sufficient merit to justify a certificate of appealability, i.e. whether "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 478 (2000).
Response to Motion - On March 16, 2015, Petitioner responded (Doc. 29) to the Motion, arguing in pertinent part that he had a right to effective assistance of counsel in his PCR proceeding which was the functional equivalent of direct appeal. Petitioner also argues that this Court should reconsider various decisions with regard to the timeliness of his Petition etc.
Reply - On March 17, 2015, Respondents replied in support of the Motion to Amend/Correct (Doc. 32). Respondents argue that Petitioner's right to counsel is not at issue, and the referral from Judge Wake on the instant motion was not a reopening of the timeliness issue.
Supplement - On March 23, 2015, Petitioner filed a Supplement (Doc. 35) to his response, arguing that the AEDPA's deferential standards do not apply in determining whether to issue a COA. Petitioner further argues that his Ground One is based on the rejection of a favorable plea, not merely an irreconcilable conflict, and that he had a right to counsel in his PCR proceeding. Petitioner argues counsel should be appointed for him in this proceeding to assert any claims his PCR counsel failed to present.
The matter is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
With one exception, the undersigned incorporates by reference the Relevant Factual & Procedural Background set forth in the Report and Recommendation filed January 15, 2015 (Doc. 19).
The one exception is made to incorporate the findings made by Judge Wake on the basis of Plaintiff's Objections, in the since vacated Order filed March 4, 2015 (Doc. 26) relating to the mailing of Petitioner's first petition for review, and the import of the state court rulings on that petition and the subsequent second petition for post-conviction relief. (Doc. 26 at 3-4.)
III. APPLICATION OF LAW TO FACTS
A. APPLICABLE STANDARD
Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Under the AEDPA, "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a ...