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Parker v. Ryan

United States District Court, D. Arizona

August 8, 2016

Willie Lee Parker, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus (“Petition”), (Doc. 1), and Motion for Release Pending Review of Court’s Decision and Recommendation (“Motion for Release”), (Doc. 50). On June 8, 2016, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (“R&R”) recommending that the Petition and the Motion for Release be denied. (Doc. 52). Petitioner subsequently filed a “Motion to Object to Doc (52) to Dismiss Petitioner[’]s Petition, and Responsed [sic] with Proffer Authority” (“Motion to Object”) on June 22, 2016. (Doc. 53).[1] The Court now rules on Petitioner’s Petition and Motion for Release.

         I. Legal Standard

         The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] recommendations to which the parties object”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) (“[T]he court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”). Thus, the Court will review de novo the portions of the R&R to which Petitioner objected.

         II. Petition

         At page 9, the R&R discusses the statute of limitations applicable to federal habeas petitions brought pursuant to 28 U.S.C. § 2254. The Court adopts this statement of the governing law.

         The R&R then applies the controlling law and determines that Petitioner’s Petition must be dismissed with prejudice because it was filed more than three years after the statute of limitations had expired. (Doc. 52 at 9-24). In reaching this conclusion, the R&R reviews whether statutory tolling is applicable, (id. at 12); and whether equitable tolling applies due to Petitioner’s pro se status, Petitioner’s allegation of ineffective assistance of counsel, the state court’s delay in ruling on Petitioner’s motion to extend time to file his notice of post-conviction relief (“PCR”), and Petitioner’s argument that he was required to exhaust his state remedies before filing his habeas petition in federal court, (id. at 12-15). The R&R also reviews Petitioner’s claim of actual innocence under the standards set forth in Schlup v. Delo, 513 U.S. 298 (1995). (Id. at 15-24). The R&R concludes that none of these issues prevents the statute of limitations from barring Petitioner’s Petition. (Id. at 24).

         In his Motion to Object, Petitioner does not expressly object to any particular finding of the R&R. See (Doc. 53). Rather, the only reference to any “objection” in the Motion to Object is the comment that “Petitioner object [sic] to the Court’s recommendation to dismiss the Petition with prejudice, of petitioners [sic] claims.” (Id. at 9). Beyond this cursory statement, the Motion to Object simply reasserts that Petitioner is innocent and reviews the state court’s delay in ruling on Petitioner’s motion for a time extension. (Id. at 1-7). Although Petitioner does not expressly state that he objects to the R&R’s findings on these issues, because Petitioner is an incarcerated, pro se litigant, the Court will construe his arguments regarding these two issues as objections. Nonetheless, because Petitioner does not object to or discuss any other portion of the R&R in his Motion to Object, see (id.), the Court accepts and adopts the R&R’s findings regarding the commencement of the statute of limitations time period, (Doc. 52 at 9-10); the mailbox rule, (id. at 11); statutory tolling, (id. at 12); and equitable tolling as to Petitioner’s pro se status, allegation of ineffective assistance of counsel, and exhaustion, (id. at 12-15). The Court will now review de novo the two issues discussed in Petitioner’s Motion to Object: (1) the state court’s delay in ruling on Petitioner’s time extension motion and (2) Petitioner’s claim of actual innocence.

         A. Motion for Time Extension

         Pursuant to Arizona Rule of Criminal Procedure 32.4, Petitioner was required to file a notice of PCR within ninety days of being sentenced by the Arizona state court. Eighty-seven days after Petitioner was sentenced, he filed a “Motion for Extension of Time to File Rule 32, ” seeking an unspecified extension of time to file a notice of PCR. When filing his motion for a time extension, Petitioner claims that he relied on the “Arizona Constitution & U.S. Constitutional Amendment, Art 6. Sub. 21, [which] says ‘every matter submitted to a judge of the superior court for his decision shall be decided within (sixty days) from the date of submission thereof.’” (Doc. 53 at 1) (parenthesis in original). The state court did not rule on Petitioner’s motion before the ninety day period lapsed. One-hundred and fifty-three days after being sentenced, Petitioner filed a notice of PCR. According to Petitioner, because the state court did not promptly grant Petitioner’s motion for a time extension, that “caus[ed] Petitioner[’]s PCR to be late, as if it was done ‘egregiously.’” (Id.)

         When determining whether the statute of limitations should be equitably tolled, the R&R considers the state court’s delay in ruling on Petitioner’s motion for an extension of time. (Doc. 52 at 13-14). The R&R explains that there is no substantive or procedural guarantee that an eleventh hour time extension motion will be ruled upon before an impending deadline and concludes that Petitioner bore the risk of filing such a late motion. (Id.) The R&R further finds that there is no evidence that Petitioner was prevented from filing his notice on time. (Id.) Consequently, the R&R determines that the trial court’s delay in ruling on the motion was not an extraordinary circumstance warranting equitable tolling. (Id.)

         The Court agrees with the R&R that the state court’s delay in ruling on Petitioner’s last minute motion for a time extension was not an extraordinary circumstance that justifies equitable tolling. There is no evidence indicating that Petitioner was prohibited or prevented from filing his PCR notice within ninety days of his sentence. Further, as detailed by the R&R, Petitioner did not exhibit diligence by filing his notice within the un-extended deadline. In any event, even if Petitioner did in fact rely on subsection 21 of article 6 of the Arizona Constitution, he still acted in a dilatory manner. Namely, Petitioner waited over 150 days after his sentence to file a notice of PCR, more than three years to file a federal habeas petition after the state court deemed his notice untimely, and over sixteen months after the Arizona Court of Appeals affirmed the trial court’s decision that the notice was untimely. Accordingly, to the extent Petitioner objected to this portion of the R&R, his objection is overruled.

         B. Actual Innocence

         Within a span of eight months, Petitioner was detained on three separate instances for driving under the influence (“DUI”). Petitioner ultimately pled guilty to one count of aggravated DUI for each occurrence. As recounted by the R&R, the counts were aggravated because Petitioner “committed each DUI while his driver’s license or privilege to drive was suspended, canceled, revoked, or refused, or while a restriction was placed on his license as a result of a prior DUI.” (Doc. 52 at 2) (citation omitted). The suspended license was issued to one “Maurice Davis.” Fingerprint analysis ...


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