United States District Court, D. Arizona
PAUL G. ROSENBLATT, District Judge.
The Court has before it the Report and Recommendation on Petition for Writ of Habeas Corpus (Doc. 21), the Petitioner's Objections to the Report and Recommendation (Doc. 22), and the Appendix to Petitioner's Objections (Doc. 27). The Court also has reviewed the entire record in this case. For the reasons discussed below, the Court will accept and adopt in part and reject in part the Report and Recommendation; will dismiss in part the Petition for Writ of Habeas Corpus; and will refer this case to the Magistrate Judge for an evidentiary hearing.
A. Equitable Tolling
Alfred Copeland objects to the Report and Recommendation ("R&R") finding that his habeas petition was delinquent. Copeland does not contest the R&R finding that the one year state of limitations for filing a federal habeas petition ran in August 2005; that he was not entitled to statutory tolling; and that his Petition, filed November 7, 2013, was therefore over eight years delinquent. Rather, Copeland contends that he is entitled to equitable tolling.
To be entitled to equitable tolling, Copeland must establish both the existence of extraordinary circumstances, and that he pursued his rights diligently. See Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). Copeland contends that he meets these requirements because he "has pursued redress by state and federal proceedings diligently after the appearance in 2009 of new evidence, i.e., the Affidavits recanting and refuting the testimonial evidence upon which the convictions for Counts 3, 5, 7 and 8, 11 depended." (Doc. 27 at 2.) The "affidavits" to which Copeland refers are actually notarized statements from D.P., L.P., and Bobby Copeland. ( See Doc. 1 at 28; Doc. 1-1 at 3-6.)
Assuming that the "appearance" of these statements constitutes extraordinary circumstances,  Copeland has not met his burden of demonstrating that he pursued his rights diligently. Copeland's trial was held in 2002, and he has neither claimed, nor provided an explanation as to why, he was unable to previously obtain these statements dated June, July, and August 2009 (Doc. 15-5 at 116, 119-122), almost seven years after he was convicted.
Further, even if Copeland was unable to obtain these statements prior to 2009, the Arizona Court of Appeals summarily denied review of his claim on January 4, 2013 ( see Doc. 15-5 at 166), yet Copeland did not file his federal habeas petition until November 7, 2013, more than ten months later. Copeland contends that he needed this ten month period "to properly familiarize himself with the federal habeas laws applicable to his issues so as to properly present them in this court" and that "only today is he aware that the court may limit the habeas petition to be filed within 30 days of the final decision of the state court of last resort." (Doc. 27 at 2.) Copeland's unfamiliarity with the law does not, however, excuse his failure to promptly file his federal habeas petition. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling").
The Court finds the ten month delay between the state court's decision and the filing of the federal habeas petition demonstrates a lack of diligence in pursuing his rights. See Guillory v. Roe, 329 F.3d 1015, 1018 n.1 (9th Cir. 2003) (finding lack of diligence where petitioner waited seven months after state court's decision to return to federal court, noting that "thirty days is sufficient time for a petitioner to return to federal court following final action by the state courts"). Copeland is not, therefore, entitled to equitable tolling.
B. Jurisdiction of State Trial Court
Copeland contends that his claim for relief based on lack of subject matter jurisdiction over 9 of the 11 indicted counts "should not be denied because an absence of jurisdiction" is cognizable in an action for federal habeas relief and renders the judgment against him "void and unenforceable." (Doc. 27 at 2-3.) Copeland argues that ground 7 of his petition, in which he claimed that the state trial court lacked subject matter jurisdiction because the indictment was invalid on its face, should survive any perceived procedural bar because lack of subject matter jurisdiction can be raised at any time. (Doc. 27 at 3.) Copeland also appears to argue that ground 3 (arguing that he was not in Arizona during the relevant time period) and ground 4 (that the statute of limitations had run prior to the date that he was prosecuted) of his petition also should survive any procedural bar because they also are "jurisdictional." ( See id. )
As the Magistrate Judge concluded, the mere assertion by Copeland that these claims are "jurisdictional" in nature does not avoid the requirement that the claims be properly exhausted and timely raised in a federal habeas petition. See Chapman v. Bradt, 2015 WL 1211683, at *10-*11 (W.D.N.Y 2015) (finding that claim that indictment was jurisdictionally defective was procedurally defaulted and thus barred from review in federal habeas). Moreover, Copeland's contention that he was not in Arizona during the relevant time raises a sufficiency of the evidence argument rather than a jurisdictional argument, and his contention that the statute of limitations had run is not cognizable in federal habeas because it relies on requirements of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("federal habeas corpus relief does not lie for errors of state law").
Finally, even if Copeland's defective indictment claims were not procedurally defaulted, the defects alleged by Copeland are not of the type that would deprive the state court of jurisdiction and thus are not cognizable in federal habeas. See Pyle v. Johnston, 137 F.2d 869, 870 (9th Cir. 1943) ("if a court passing sentence had jurisdiction over the person of the defendant and over the offense which the indictment undertook to define, its judgment of conviction is not subject to collateral attack by habeas corpus proceedings on the ground that the indictment fails to charge an offense, unless the court was so completely without jurisdiction that its proceedings were void"); see also Evans v. Cain, 577 F.3d 620, 624 (5th Cir. 2009) (sufficiency of state indictment not a matter for federal habeas relief unless indictment is so defective that convicting court had no jurisdiction); Heath v. Jones, 863 F.2d 815, 821 (11th Cir. 1989) (same).
Copeland contends that Count 1 of the indictment was defective because it failed to list the element of causation. The Court disagrees and finds that Count 1 sufficiently set forth the charged offense by alleging that Copeland had "intentionally or knowingly engaged" in "direct or indirect touching, fondling, or manipulating of any part of the female breast" of L.P., "a minor under the age of fifteen years of age, in violation of A.R.S. § 13-1404...." See A.R.S. § 13-1404(A), (B) ("A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with... any person who is under fifteen years of age if the sexual contact involves only the female breast."); see also United States v. Zavala, 839 F.2d 523, 526 (9th Cir. 1988) (an indictment generally is sufficient if it tracks the language of the statute).
Copeland contends that Count 3 of the indictment was defective because it failed to allege that L.P. was under the age of 12 years. However, a review of the statute under which Copeland was tried and convicted in Count 3 demonstrates that the indictment sufficiently set forth the charged offense by alleging that Copeland "intentionally or knowingly engaged in sexual intercourse or oral sexual contact" with L.P., "who was a minor under the age of fifteen years, (to-wit: vaginal penetration)." See A.R.S. § 13-1405(A) ("A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age."); A.R.S. § 13-1405(B) ("Sexual conduct with a minor who is under fifteen years of age is a class 2 felony and is punishable pursuant to § 13-705."). The factor of "under twelve years of age" is a sentencing factor and did not need to be set forth in the indictment. See A.R.S. § 13-705(A) ("A person who is at least eighteen years of age and who is convicted of... sexual conduct with a minor who is twelve years of age or younger shall be sentenced to life imprisonment...."); Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) (although indictment must plead all elements of a crime, it "need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime").
Copeland contends that Count 5 of the indictment was defective because it contained a time frame that was too broad. The Court disagrees and finds that Count 5 sufficiently set forth the time span of the offense by stating that "on or between the 2nd day of April, 1984, and the 2nd day of April, 1985, " Copeland "knowingly recorded a visual or print medium, (to wit: Polaroid photos) in which [T.B.], a minor under the age of fifteen, was engaged in sexual conduct." See Dilworth v. Markle, 970 F.Supp.2d 498, 508 (N.D.W.Va. 2013) (indictment sufficient that charged state prisoner "with sexually touching his stepdaughter on ten separate occasions in 2001"); Voymas v. Unger, 2011 WL 26700233, at *5 (W.D.N.Y. 2011) (one year time span on sexual abuse charge was not unreasonable because victim was child).
C. Actual Innocence
Copeland asserts "actual innocence" as a basis to avoid the procedural default of his claims and to overcome the habeas statute of limitations bar. Specifically, Copeland contends (1) that he was not in Arizona during the time of some of the offenses on which he was convicted, (2) that some of the victims originally told the police that nothing criminal happened, and (3) that two of the victims now deny that the abuse of which he was convicted ever happened. ( See Doc. 1 at 28; Doc. 1-1 at 3-6; see also Doc. 23, 24, 26.)
To excuse procedural default or overcome the habeas statute of limitations bar based on a claim of actual innocence, a federal habeas petitioner has the burden of presenting new reliable evidence "of innocence so strong that a court cannot have confidence in the outcome of trial unless the court is also satisfied that the trial was free of non-harmless constitutional error." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013); see Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). "[T]enable actual-innocence gateway pleas are rare.'" Stewart v. Cate, 757 F.3d 929 (9th Cir. 2014) (quoting McQuiggin, 133 S.Ct. at 1928). A petitioner must "persuade the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin, 133 S.Ct. at 1928. To determine whether a petitioner has met this burden, the Court must "assess how reasonable jurors would react to the overall, newly supplemented record, ' including all the evidence the petitioner now proffers." Stewart, 757 F.3d at 938 (quoting Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011)). A petitioner must make the showing of actual innocence on each of the charges for which he seeks relief. See Vosgien v. Persson, 742 F.3d 1131, 1136-37 (9th Cir. 2014).
The Magistrate Judge found that Copeland had not met his burden of demonstrating actual innocence. ( See Doc. 21 at 10-18.) Copeland contends that it was premature and improper for the Magistrate Judge to dismiss the recantations of the witnesses' trial testimony as not credible ...