United States District Court, D. Arizona
David G. Campbell United States District Judge
On July 16, 2013, Petitioner Alan Marcel Sojka II filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The Court referred the petition to Magistrate Judge David K. Duncan, and later to Magistrate Judge Eileen S. Willett. Docs. 5, 38. Judge Willett issued a report and recommendation (“R&R”) recommending that the Court dismiss the petition as untimely. Doc. 39. Pro se Petitioner filed an objection to the R&R. Doc. 50. For the reasons set forth below, the Court will overrule his objections and adopt Judge Willett’s recommendation that the petition be dismissed.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations for habeas petitions filed by state prisoners. 28 U.S.C. § 2244(d)(1). As relevant here, the limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). The limitations period is subject to both statutory tolling and equitable tolling. Statutory tolling is available for “[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.” § 2244(d)(2). Equitable tolling is available where “extraordinary circumstances beyond a prisoner’s control ma[d]e it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006). In addition, a petitioner is entitled to an equitable exception to the AEDPA’s statute of limitations if he makes “a credible showing of actual innocence.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013).
Judge Willett determined that (1) the AEDPA limitations period began to run on January 2, 2009, the last day on which Sojka could have petitioned the Arizona Supreme Court for direct review of his conviction (Doc. 39 at 7 & n.5); (2) the limitations period was subject to statutory tolling from January 6, 2009 through February 10, 2012, during which Sojka’s petition for post-conviction review (“PCR”) was pending before the Maricopa County Superior Court (id. at 8-9); and (3) the limitations period was not subject to any additional statutory tolling because Sojka did not have a “properly filed” PCR petition pending in state court at any time after February 10, 2012 (id. at 9-14). Next, Judge Willett determined that Sojka was not entitled to equitable tolling because he had not shown that extraordinary circumstances made it impossible for him to file a timely habeas petition. Id. at 14-19. Finally, Judge Willett determined that Sojka was not entitled to an equitable exception to the limitations period because he had not made a credible showing of actual innocence. Id. at 19-21. Based on these findings, Judge Willett concluded that the limitations period expired on February 6, 2013, making Sojka’s petition 160 days late. Id. at 19.
In his written objections, Sojka argues that (1) he is entitled to statutory tolling (or, in the alternative, equitable tolling) for the period between February 11, 2012 and September 24, 2012, when he was seeking reconsideration of the Superior Court’s denial on his PCR petition (Doc. 50 at 4-7); and (2) he is entitled to equitable tolling for the period between September 25, 2012 and July 16, 2013, when he diligently sought to appeal the denial of his reconsideration petition but was impeded by the Superior Court’s unexpected application of a state-law procedural bar (id. at 7-12). The Court reviews Sojka’s objections de novo; the portions of the R&R to which he does not object will be adopted without further discussion. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
A. Statutory Tolling.
On February 10, 2012, the Superior Court denied Sojka’s PCR petition. Doc. 39 at 3 (citing Doc. 17-2 at 130-41). The court initially set March 30, 2012 as the deadline to file a petition for reconsideration, but later granted Sojka’s request for an extension. Id. (citing Doc. 17-2 at 147-48, 150-52, 165). On May 7, 2012, the court extended the deadline to file a motion for reconsideration until June 29, 2012, warning Sojka “that no further continuances will be granted absent a substantial showing of extraordinary circumstances.” Id. at 10 (citing Doc. 17-5 at 151). Sojka failed to file his reconsideration motion by this deadline, and instead filed three additional extension requests. Id. The court denied these requests on August 7, 2012, finding that Sojka had “failed to make the required showing of extraordinary circumstances sufficient to justify a further extension of time.” Id. (citing Doc. 17-5 at 151).
In September 2012, Sojka filed a motion to set aside the final decision, a motion to extend the deadline to file a petition for review by the Court of Appeals, and a petition for reconsideration. Id. at 11 (citing Docs. 17-3 at 3-8, 9-101; 17-4). On September 24, 2012, the Superior Court issued a minute entry denying the motion to set aside the final decision, but granting the motion to extend the time for seeking appellate review. Id. (citing Doc. 17-5 at 2). The court subsequently amended the minute entry to deny the petition for reconsideration as well. Id. (citing Doc. 17-5 at 4).
Judge Willett found that statutory tolling was not available for this period because Sojka never presented the Superior Court with a “properly filed” petition for reconsideration. Doc. 39 at 9-11. She noted that “time limits, no matter their form, are ‘filing’ conditions, ” which means that an untimely PCR petition is not “properly filed” for purposes of AEDPA. Id. at 7-8 (citing Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)).
Sojka notes that the Superior Court dispensed with a prior, improperly filed motion with an order stating that “no action w[ould] be taken” on the motion. Doc. 50 at 4 (citing Doc. 17-2 at 155). Because the Superior Court did not enter a similar order with respect to his reconsideration petition, he reasons, it must have concluded that it was not improperly filed. Id. Relatedly, he argues that it must be presumed that a summary denial was made on the merits. Id. at 5 (citing Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”)).
Sojka’s arguments are unavailing. First, there is no question that Sojka’s petition was untimely. After an initial extension, the Superior Court ordered Sojka to file his petition by June 29, 2012, warning him that further extensions would not be granted absent a showing of extraordinary circumstances. Sojka did not file his petition before June 29, 2012, and his requests for an additional extension were denied. Thus, Sojka’s motion was untimely and not properly filed.
Second, the April 12, 2012 minute entry did not purport to establish a generally applicable procedure for improperly filed motions; it merely stated that the court would not take action on the particular motion pending before it. Sojka does not point to any Arizona case or rule of procedure ...