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Clark v. Ryan

United States District Court, D. Arizona

February 5, 2018

Leland Harris Clark, Petitioner
v.
Charles L. Ryan, et al., Respondents.

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE

         I. MATTER UNDER CONSIDERATION

         Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 14, 2017 (Docs. 1, 4). On October 13, 2017 Respondents filed their Limited Answer (Doc. 10). Petitioner filed a Reply on November 8, 2017 (Doc. 12).

         The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL

         On April 20, 2015, Petitioner was indicted on one count of failure to register as a sex offender as required by a California conviction. (Exhibit A, Indictment.) (Exhibits to the Answer, Doc. 10, are referenced herein as “Exhibit .”) The state alleged various prior felonies, including assault by means of force, oral copulation with means of force, grand theft auto, grand theft property, issuing bad check, and attempted securities fraud. (Exhibit B, Allegation of Priors.) Petitioner eventually entered into a written Plea Agreement (Exhibit C), agreeing to an amended charge of failure to register as a sex offender under Ariz. Rev. Stat. § 13-3821, including an allegation of a prior conviction of possession of drug paraphernalia, in exchange for a stipulated sentence of 4.5 years, and dismissal of other allegations of prior felony convictions. On January 22, 2016, Petitioner entered his plea of guilty pursuant to the Plea Agreement. (Exhibit D, M.E. 1/22/16.) On February 23, 2016, Petitioner was sentenced to the agreed upon term of 4.5 years. (Exhibit E, Sentence 2/23/16.) Petitioner signed a receipt for a notice of rights to appeal and post-conviction relief (Exhibit F).

         B. PROCEEDINGS ON DIRECT APPEAL

         Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.)

         Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).

         C. PROCEEDINGS ON POST-CONVICTION RELIEF

         On September 15, 2016, over 6 months after his sentencing, Petitioner commenced his first post-conviction relief proceeding (PCR) by filing a Notice of Post-Conviction Relief (Exhibit G) and a Petition for Post-Conviction Relief (Exhibit H). The Notice is dated September 6, 2016. (Exhibit G, Notice at 3.)

         The PCR court deemed these filings combined to constitute a single Notice of Post Conviction Relief, observed that Petitioner asserted the recent discovery of his actual innocence based on the absence of a registration requirement in his California conviction judgment and sentence. Counsel was appointed and a briefing schedule set, requiring a PCR petition by . (Exhibit I, Order 9/29/16.)

         On December 5, 2016, counsel filed a Notice of Completed Review (Exhibit J) evidencing an inability to find an issue for review, and requesting leave to file the notice untimely which delay resulted from counsel's calendaring error. Counsel was ordered to remain in an advisory capacity and Petitioner was granted leave to file a pro per PCR petition by January 20, 2017. The untimeliness of PCR counsel's notice was not addressed. (Exhibit K, Order 12/6/16.) On January 13, 2017, Petitioner filed pro per a “Memorandum of Law” (Exhibit L) arguing his actual innocence based on the lack of an order to register as a sex offender, and ineffective assistance of trial and PCR counsel in failing to argue the issue.

         On April 19, 2017, the PCR court dismissed the PCR petition as untimely, finding that the deadline for filing the petition filed January 13, 2017 was filed after the November 28, 2016 deadline (ignoring the January 20, 2017 deadline set on December 6, 2016). The court also found that the claims of innocence based on the lack of a registration order, and the related claim of ineffective assistance, were without merit. (Exhibit O, Ruling 4/19/17.)

         On June 12, 2017, Petitioner filed a Response to the Court's Ruling (Exhibit P) addressing the merits of his innocence claim. The PCR court construed this as a motion for reconsideration, and denied it, reasoning:

The Court noted that the petition was not timely filed but ruled on the merits of the petition nonetheless. From the latest motion the Court surmises that the Defendant believes relief was denied solely for the reason that his petition was untimely. That was not the only reason. The Court addressed the merits of the petition.

(Exhibit Q, Order 7/19/17 at 1 (emphasis added).) Petitioner did not point out, and the court did not address the discrepancy regarding the deadline for the pro per petition.

         Petitioner did not seek further review. (Petition, Doc. 1 at 5.)

         D. PRESENT FEDERAL HABEAS PROCEEDINGS

         Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 14, 2017 (Doc. 1). The petition is undated, and contains no certifications regarding mailing. An omitted page of an exhibit was filed on August 17, 2017 (Doc. 4).

         Petitioner's Petition asserts two grounds for relief. In Ground One, he argues that his plea was not knowing and voluntary because he was not adequately advised by counsel on the elements of the offense, and their application to his case. In Ground Two, he argues that trial counsel was ineffective for failing to adequately advise Petitioner on the elements of the offense and their application to his case. In particular, Petitioner argues in both Grounds that Petitioner was not advised regarding the applicability of Ariz. Rev. Stat. § 13-1405 and Ariz. Rev. Stat. § 13-3821.

         Response - On October 13, 2017 Respondents filed their Limited Answer (Doc. 10.) Respondents argue that the petition is untimely, and Petitioner's state remedies on his claims were procedurally defaulted.

         Reply - On November 8, 2017, Petitioner filed a Reply (Doc. 12). Petitioner argues that the Petition is timely because his state PCR petition was accepted as demonstrated by the orders appointing counsel, etc. He argues that further attempts to exhaust where shown by the rulings of the PCR court to be futile. Petitioner argues his procedural default should be excused because trial counsel and PCR counsel were ineffective.

         III. APPLICATION OF LAW TO FACTS

         A. TIMELINESS

         1. One Year Limitations Period

         Respondents assert that Petitioner's Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one year limitations period are barred and must be dismissed. Id.

         2. Commencement of Limitations Period

         The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).[1]

         For an Arizona noncapital pleading defendant, the conviction becomes “final” at the conclusion of the first “of-right” post-conviction proceeding under Rule 32. “Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). “To bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to the Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of his or her intent to file a Petition for Post-Conviction Review.” Id. at 715 (citing Ariz. R.Crim. P. 32.4(a)).

         Here, Petitioner's sentencing occurred on February 23, 2016. (Exhibit E, Sentence.) Accordingly, an of-right PCR proceeding had to be commenced by May 23, 2016. He did not file his PCR Notice (Exhibit G) until September 15, 2016, almost six months later. Accordingly, his first PCR proceeding did not qualify as an of-right proceeding, and his conviction became final on May 23, 2016 on the expiration of his time to file an of-right proceeding.[2]

         Therefore, Petitioner's one year began running on May 24, 2016, and without any tolling expired on May 23, 2017.

         3. Timeliness Without Tolling

         Petitioner's Petition (Doc. 1) was filed on August 14, 2017.

         As determined in subsection (2) above, without any tolling Petitioner's one year habeas limitations period expired no later than May 23, 2017, making his August 14, 2017 Petition some 83 days delinquent.[3]

         4. Statutory Tolling

         The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).

         Properly Filed - Statutory tolling of the habeas limitations period only results from state applications that are “properly filed, ” and an untimely application is never “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005). On the other hand, the fact that the application may contain procedurally barred claims does not mean it is not “properly filed.” “[T]he question whether an application has been ‘properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.” Artuz v. Bennett, 531 U.S. 4, 9 (2000).

         Even if the state court provides alternative grounds for disposing of the state application, a ruling that the application was untimely precludes it from being “properly filed” and tolling the limitations period. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). If the state court summarily disposes of a state application without identifying if it was on timeliness grounds, or otherwise fails to give a clear indication whether it has deemed the application timely or untimely, the federal habeas court “must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness.” Evans v. Chavis, 546 U.S. 189, 198 (2006).

         For purposes of applying the “properly filed” requirement of § 2244(d), the federal courts look to the “last reasoned decision” of the state courts. Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016).

         Mailbox Rule - For purposes of calculating tolling under § 2244(d), the federal prisoner “mailbox rule” applies. Under this rule, a prisoner's state filings are deemed “filed” (and tolling thus commenced) when they are delivered to prison officials for mailing. In Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000), the Ninth Circuit noted:

[I]n Saffold v. Newland, 224 F.3d 1087 (9th Cir.2000), we squarely held that the mailbox rule applies with equal force to the filing of state as well as federal petitions, because "[a]t both times, the conditions that led to the adoption of the mailbox rule are present; the prisoner is powerless and unable to control the time of delivery of documents to the court." Id. at 1091.

Id. at 575.

         Similarly, the “mailbox rule” applies to determining whether an Arizona prisoner's state filings were timely. Although a state may direct that the prison mailbox rule does not apply to filings in its court, see Orpiada v. McDaniel, 750 F.3d 1086, 1090 (9th Cir. 2014), Arizona has applied the rule to a variety of its state proceedings. See e.g. Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.1995) (notice of direct appeal); State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App.1999) (PCR notice); State v. Goracke, 210 Ariz. 20, 23, 106 P.3d 1035, 1038 (App. 2005) (petition for review to Arizona Supreme Court).

         Application to Petitioner - Petitioner's limitations period commenced running on May 24, 2016. Petitioner's First PCR proceeding was commenced on September 15, 2016 when he filed his PCR Notice (Exhibit G).[4]

         At that time, some 115 days of Petitioner's one year had expired, leaving 250 days.

         Respondents argue that this PCR proceeding was not properly filed (and thus did not toll the running of the statute of limitations) because it was ultimately determined to be untimely. Indeed, the PCR court did conclude that Petitioner's PCR petition was untimely. (See Exhibit O, Ruling 4/19/17; Exhibit Q, Order 7/19/17.)

         However, Respondents confuse a timely application with a timely brief. The statute provides tolling during the pendency of a “properly filed application, ” not a properly filed petition or brief.

         In Isley v. Arizona Dept. of Corrections, the Ninth Circuit addressed the question whether an Arizona PCR petition “was ‘pending' before the state courts within the meaning of § 2244(d)(2) when the Notice was filed or when the actual petition for relief was filed.” 383 F.3d 1054, 1055 (9th Cir. 2004).

The language and structure of the Arizona post-conviction rules demonstrate that the proceedings begin with the filing of the Notice. Arizona Rule 32.4(a) provides that a state post-conviction “proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred.” Ariz. R.Crim. P. 32.4(a). For defendants like Isley who plead no contest, Rule 32 notices must be filed within 90 days of sentencing. Id.
With the filing of the Notice, Arizona's mechanism for post-conviction relief is set in motion. It is only after filing of the Notice that indigent defendants are entitled to have counsel appointed and that the time limitation for filing of the formal petition begins to run. Ariz. R.Crim. P. 32.4(c). The unambiguous language of Rule 32.4(a) compels our conclusion that, because Isley's Notice was filed in conformity with the pertinent statutory provisions and contained a specific prayer for relief in the form of a request for a new trial, it is sufficient to toll the AEDPA statute of limitations.

Id. at 1055-56.

         In Morgal v. Ryan, Magistrate Judge Anderson similarly concluded that statutory tolling applied where an Arizona defendant filed a timely PCR notice, but after counsel found no claims, the petitioner's pro per PCR petition was filed after the court's deadline, and was dismissed as untimely (and as without merit). Judge Anderson concluded: “In Arizona, the deadline for filing a notice of post-conviction relief under Rule 32.4(a) is the operative deadline for determining when a post-conviction action is properly filed and pending for purposes of § 2244(d)(2).” Morgal v. Ryan, CV-11-2552-PHX-NVW, 2013 WL 655122, at *7 (D. Ariz. Jan. 18, 2013), report and recommendation adopted, 2013 WL 645960 (D. Ariz. Feb. 21, 2013).[5]

         Here, the PCR court's untimeliness application was based on the determination (albeit erroneous) that Petitioner's PCR petition was filed after the briefing deadline.[6]“For the reason that the petition is untimely…the petition is summarily dismissed.” (Exhibit O, Ruling 4/19/17 at 3.) That did not render his PCR notice untimely, and thus is not determinative of the timeliness issue.

         It is true that the habeas court must itself evaluate the timeliness of a state application in some situations if the state court fails to give a clear indication whether it has deemed the application timely or untimely. Evans v. Chavis, 546 U.S. 189, 198 (2006). Assuming that obligation applied in this instance, the undersigned would not find Petitioner's PCR notice untimely. Arizona Rule of Criminal Procedure 32.4(a)(2)(D) requires that a PCR notice be filed within 90 days of the sentence (where there is no direct appeal). But, the rule exempts claims under Rule 32.1(d) through (h). Ariz. R. Crim. Proc. 32.4(a)(2)(A). Rule 32.1(e) includes claims of newly discovered evidence, and Rule 32.1(h) includes claims “sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt.” Petitioner's PCR Notice indicated claims based on newly discovered material facts, and his actual innocence, and referenced his assertion that “he did not need to register.” (Exhibit G, PCR Notice at 2-3.) His PCR Petition asserted that he was “factually innocent” and cited “Ariz. R. Crim. P. 32.1(h). (Exhibit L, PCR Petition at 2.) The PCR court noted that the Notice was based on claims under Ariz. R. Crim. Proc. 32.1(e), (f) and (h), which are exceptions to the timeliness rule. (Exhibit I, Order 9/29/16 at 2.) Accordingly, the undersigned finds no basis to conclude that Petitioner's PCR Notice was untimely under Rule 32.4.

         Petitioner's PCR proceeding remained pending until April 19, 2017.[7] Thus, Petitioner's habeas limitations period commenced running again on April 20, 2017, and expired 250 days later, on December 26, 2017.

         Consequently, Petitioner's habeas petition, filed August 14, 2017, was timely.

         5. Summary re Statute of Limitations

         Taking into account the available statutory tolling, Petitioner's one year habeas limitations period commenced running on May 24, 2016, was tolled at least from September 16, 2016 through at least April 19, 2017, and expired no sooner than December 26, 2017, making his August 14, 2017 Petition timely by over four months.

         B. EXHAUSTION AND PROCEDURAL DEFAULT

         Respondents also argue that all of Petitioner's claims are procedurally defaulted, and thus are barred from federal habeas review.

         Petitioner argues that any appeal of his claims would have been dismissed as untimely, and thus the corrective process was unavailable or ineffective, and that the ineffective assistance of trial and PCR counsel establish cause and prejudice for his failure to properly exhaust.

         1. Exhaustion Requirement

         Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). The exhaustion doctrine, first developed in case law, has been codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981)(per curiam), cert. denied, 455 U.S. 1023 (1982).

         Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).

         Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989).

         Proper Forum - “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'” Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).

         2. Procedural Default

         Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally ...


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