United States District Court, D. Arizona
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF
F. METCALF UNITED STATES MAGISTRATE JUDGE
MATTER UNDER CONSIDERATION
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).
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.
RELEVANT FACTUAL & PROCEDURAL BACKGROUND
FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL
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).
PROCEEDINGS ON DIRECT APPEAL
did not file a direct appeal. (Petition, Doc. 1 at 2.)
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).
PROCEEDINGS ON POST-CONVICTION RELIEF
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.)
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.)
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.
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.)
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
(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
did not seek further review. (Petition, Doc. 1 at 5.)
PRESENT FEDERAL HABEAS PROCEEDINGS
- 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.
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.
- 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
- 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
APPLICATION OF LAW TO FACTS
One Year Limitations Period
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.
Commencement of Limitations Period
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. §
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)).
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.
Petitioner's one year began running on May 24, 2016, and
without any tolling expired on May 23, 2017.
Timeliness Without Tolling
Petition (Doc. 1) was filed on August 14, 2017.
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.
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).
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).
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).
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).
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
Id. at 575.
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).
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).
time, some 115 days of Petitioner's one year had expired,
leaving 250 days.
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.)
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.
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.
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.
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).
the PCR court's untimeliness application was based on the
determination (albeit erroneous) that Petitioner's PCR
petition was filed after the briefing deadline.“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.
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.
PCR proceeding remained pending until April 19,
2017. Thus, Petitioner's habeas limitations
period commenced running again on April 20, 2017, and expired
250 days later, on December 26, 2017.
Petitioner's habeas petition, filed August 14, 2017, was
Summary re Statute of Limitations
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.
EXHAUSTION AND PROCEDURAL DEFAULT
also argue that all of Petitioner's claims are
procedurally defaulted, and thus are barred from federal
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.
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).
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.
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).
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)).
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 ...