United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
April 28, 2017, Magistrate Judge Michelle H. Burns issued a
Report and Recommendation (“R&R”)
recommending Petitioner Michael Lynn Cook's petition for
writ of habeas corpus be dismissed as untimely. (Doc. 16).
Cook filed objections and supplements arguing the R&R
should be overruled. The R&R's analysis is correct
and it will be adopted in full.
present, the sole issue is the timeliness of Cook's
petition. The relevant facts and dates are undisputed. Cook
was convicted in state court of, among other things,
attempted second-degree murder. He was sentenced to prison
terms totaling 40 years. Cook filed a direct appeal but the
Arizona Court of Appeals affirmed his convictions and
sentences. While that appeal was pending, Cook filed his
first post-conviction relief (“PCR”) petition
with the state trial court. Cook's direct appeal
concluded on March 1, 2010 but his first PCR petition
remained pending until July 17, 2013. Approximately six
months before his first PCR proceeding ended, Cook filed a
second PCR petition with the state trial court. The trial
court denied the second PCR petition on November 6, 2013.
(Doc. 1-6 at 2). Cook then filed a petition for review of the
denial of his second PCR petition with the Arizona Court of
Appeals. The court of appeals granted review but denied
relief. In its ruling, the court of appeals repeatedly stated
Cook's second PCR petition was “untimely.”
(Doc. 1-6 at 13). The court of appeals issued its mandate on
July 13, 2016 and Cook filed the present federal petition on
November 7, 2016. (Doc. 1-6 at 7).
law requires a petition for writ of habeas corpus be filed
within one year of a conviction becoming final. 28 U.S.C.
§ 2244(d)(1)(A). This period is subject to both
statutory and equitable tolling. Statutory tolling applies
while a “properly filed application for State
post-conviction . . . is pending.” 28 U.S.C. §
2244(d)(2). Equitable tolling applies if a petitioner was
pursuing his rights diligently but extraordinary
circumstances prevented him from filing on time. Holland
v. Florida, 560 U.S. 631, 648 (2010). The threshold for
equitable tolling is “very high” and it is
“unavailable in most cases.” Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quotation
marks and citations omitted). Based on these principles, and
the undisputed dates regarding Cook's various filings,
the timeliness inquiry is relatively straightforward.
convictions were final and his first PCR petition was no
longer pending as of July 17, 2013. If the one-year
limitations period began to run at that time, Cook's
federal petition filed in November 2016 was more than two
years too late. Alternatively, if the one-year limitations
period did not begin to run until the second PCR petition was
no longer pending as of July 13, 2016, Cook's federal
petition is timely. Finally, even if the one-year period
began to run on July 17, 2013, Cook's federal petition is
timely if he is entitled to equitable tolling.
R&R concluded the one-year period began to run in 2013
when Cook's first PCR petition was no longer pending.
According to his objections and other filings, Cook believes
that is incorrect and his second PCR petition also tolled the
statute of limitations. In other words, the one-year period
did not begin to run until Cook's second PCR petition was
no longer pending. But in rejecting Cook's second PCR
petition, the Arizona Court of Appeals explicitly found that
petition “untimely.” As explained by the Supreme
Court, an untimely petition is not considered “properly
filed” to merit tolling of the limitations period.
Pace v. DiGuglielmo, 544 U.S. 408 (2005). Thus,
Cook's second PCR petition had no impact on when his
one-year period began to run and his federal petition is
untimely by more than two years.
argues it is unfair to start the one-year period from his
first PCR petition because he had no way of knowing the state
courts would eventually deem his second PCR petition
untimely. Cook points to decisions by the state trial court
allowing his second PCR petition to proceed as evidence that
he had no reason to believe there may be a future timeliness
problem in federal court. The problem for Cook is that the
Supreme Court explicitly contemplated this exact scenario in
ruling that untimely petitions have no impact on calculating
the federal deadline.
Pace v. DiGuglielmo, 544 U.S. 408 (2005), a
Pennsylvania state court had held a petition for
post-conviction relief was untimely. The petitioner then
filed a federal petition, arguing his state petition had been
“properly filed” even though it had been deemed
untimely. That is, he was entitled to statutory tolling until
his untimely petition was no longer pending. In the
petitioner's view, it would be unfair to deem an untimely
petition not “properly filed” because “a
petitioner trying in good faith to exhaust state remedies may
litigate in state court for years only to find out at the end
that [his petition] was never ‘properly filed, '
and thus that his federal habeas petition is time
barred.” Id. at 416. The Supreme Court
rejected this argument, claiming a petitioner in this type of
“predicament” should file “a
‘protective' petition in federal court . . . asking
the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.”
Id. This exact reasoning applies to Cook.
his first PCR petition was denied, Cook could have filed a
protective federal petition to protect his right to federal
review of his conviction. Cook could not, however, rely on
his second PCR petition tolling the time period given the
strong possibility that his second PCR petition would
eventually be deemed untimely. Because the Supreme Court has
addressed and rejected Cook's exact claim regarding
statutory tolling, the R&R's conclusion on statutory
tolling is correct.
topic of equitable tolling, the R&R correctly concludes
Cook has not established he pursued his rights diligently or
that extraordinary circumstances prevented him from filing a
timely petition. It appears Cook seeks to invoke equitable
tolling based on his belief that he needed to wait until his
second PCR petition was resolved before filing his federal
petition. But as explained in Pace, petitioners must
file protective petitions in such circumstances. Cook's
decision to wait until a final ruling on his untimely second
petition does not show he was proceeding diligently. In
addition, Cook does not point to any extraordinary
circumstances that prevented him from filing his federal
petition between July 2013 and November 2016. Equitable
tolling does not apply.
Cook “request[s] access to case authorities that are
available only in electronic databases such as Lexis and
Westlaw” as well as an order compelling Respondents to
produce certain material. (Doc. 20 at 1). Because Cook's
petition is untimely under Supreme Court and statutory law,
there is no need to provide Cook the relief he seeks.
IT IS ORDERED the Report and Recommendation
(Doc. 16) is ADOPTED IN FULL. The Petition
for Writ of Habeas Corpus (Doc. 1) is DENIED
and this case is DISMISSED WITH PREJUDICE.
IS FURTHER ORDERED the Motion to Order Access (Doc.
20) and Motion to Compel (Doc. 25) are
IS FURTHER ORDERED that a Certificate of
Appealability and leave to proceed in forma pauperis on
appeal are DENIED because dismissal of the
petition is justified by a plain procedural bar and ...