United States District Court, D. Arizona
Robert C. Echols, Petitioner,
Charles L. Ryan, et al., Respondents.
Honorable Roslyn O. Silver Senior United States District
Robert C. Echols filed a pro se petition for habeas
corpus pursuant to 28 U.S.C. § 2254, raising seventeen
claims. (Doc. 1). Magistrate Judge Eileen S. Willett issued a
Report and Recommendation (“R & R”) to
dismiss the petition as untimely. (Doc. 29), and Echols filed
a timely objection. (Doc. 30). The Court will adopt the R
& R, with comments.
was convicted on two counts of Drive By Shooting at a
Residence, and ten counts of Aggravated Assault with a Deadly
Weapon or Dangerous Instrument. (Doc. 25-1 at 4). He appealed
the sentences for four of the aggravated assault counts, and
on July 8, 2009, the Arizona Court of Appeals affirmed the
convictions and sentences. (Id. at 9). Echols did
not petition the Arizona Supreme Court for review, and the
Court of Appeals issued its mandate on September 30, 2009.
(Doc. 25-5). On March 17, 2010, Echols filed a Notice of
Post-Conviction Relief (“PCR”). (Doc. 25-6). The
trial court denied his petition (Doc. 26-5), and on April 3,
2012, the Arizona Court of Appeals granted review, but denied
relief. (Doc. 26-7). The thirty-day period to petition the
Arizona Supreme Court expired May 3, 2012. Ariz. R. Crim. P.
31.19(a). On July 30, 2012, the Arizona Court of Appeals
issued its mandate, holding Echols had filed neither a motion
for reconsideration nor a petition for review, and the time
for doing either had expired. (Doc. 26-8). Echols filed a
petition for review on June 5, 2014 (Doc. 27-1), and the
Arizona Supreme Court denied review without noting the
petition's untimeliness. (Doc. 27-2).
filed his habeas petition on October 8, 2015. (Doc. 1). He
filed a state habeas petition six days later. (Doc. 30 at 8).
On February 4, 2016, Echols filed a motion in this case to
toll the one-year statute of limitations “for the
entire time that his state habeas corpus is pending in the
Arizona courts.” (Doc. 14).
petition is subject to a one-year statute of limitations
provided for at 28 U.S.C. § 2244(d)(1). The statute
began to run “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). Echols does not dispute the R & R's
finding that the start date was August 8, 2009. (Doc. 29 at
5; Doc. 30 at 2). Neither does he dispute the R & R's
finding that the limitations clock ran for a total of 221
days before he filed his PCR notice on March 17, 2010. (Doc.
29 at 6; Doc. 30 at 2).
disputes the R & R's statute of limitations analysis
in only one respect: he claims the limitations clock remained
tolled from March 17, 2010 until the Arizona Supreme Court
denied his petition for review on October 20, 2014. (Doc. 30
at 2). The Court agrees with the R & R's finding that
the clock began to run again on May 4, 2012, when the time
for seeking Arizona Supreme Court review expired (Doc. 29 at
6-7). And assuming Echols' argument was correct, his
habeas petition, filed October 8, 2015, was untimely.
petitioner can overcome the one-year statute of limitations
by a “convincing” showing of their innocence.
McQuiggin v. Perkins, 133 S.Ct. 1924, 1927 (2013)
(discussing the so-called “Schlup
gateway” and its application to statute of limitations
issues). “To be credible, such a claim requires
petitioner to support his allegations of constitutional error
with new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence-that was not presented at trial.
Because such evidence is obviously unavailable in the vast
majority of cases, claims of actual innocence are rarely
successful.” Schlup v. Delo, 513 U.S. 298, 324
(1995). Finally, “‘actual innocence' means
factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998).
Echols' petition does not so much as allude to any new
evidence, but simply rehashes the evidence at trial. (Doc. 1
at 6). In his state court petition, he argues the state
failed to prove he actually fired a gun during the drive-by
shootings, and failed to prove certain sentencing
enhancements. (Doc. 30 at 8-37). These arguments, even if
true, are not enough to prove factual innocence. Instead of
again arguing about the evidence presented, Echols would need
to point to new evidence negating his guilt. He has not done
so. Thus, Echols cannot make use of the
Schlup/McQuiggin gateway to avoid the one-year
statute of limitations.
issue merits some discussion. Echols has moved the Court to
toll the present proceedings while his state habeas petition
is adjudicated, explaining the state petition is intended to
exhaust his actual innocence claim. The Court construes this
to mean Echols may be attempting to raise a freestanding
actual innocence claim. Although the Supreme Court has not
resolved whether such a claim is a cognizable basis for
habeas relief, McQuiggin, 133 S.Ct. at 1931, the
Ninth Circuit has acknowledged a freestanding innocence claim
exists in capital cases, Carriger v. Stewart, 132
F.3d 463, 476-77 (9th Cir. 1997). However, it has declined to
state whether it extends to the non-capital context.
Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir.
2014). Assuming Echols can assert a freestanding claim, the
evidentiary burden would be “extraordinarily high,
” Herrera v. Collins, 506 U.S. 390, 417
(1993), requiring even “more convincing proof of
innocence than Schlup.” House v.
Bell, 547 U.S. 518, 555 (2006). Since Echols'
Schlup argument fails, his freestanding claim fails
as well. This is true regardless of whether he is required to
exhaust the claim. Therefore, his motion to toll the current
proceedings is moot.
IT IS ORDERED the Report and Recommendation (Doc. 29) is
FURTHER ORDERED Petitioner's Motion to Toll (Doc. 14) is
FURTHER ORDERED Petitioner's Application for Writ of
Habeas Corpus (Doc. 1) is DISMISSED WITH PREJUDICE. The ...