Calmese v. Ryan

          ORDER

          David G. Campbell, Senior United States District Judge

         Petitioner Gerald M. Calmese filed a petition under 28 U.S.C. § 2254 to vacate, set aside, or correct his sentence. Doc. 1. Magistrate Judge Bridget S. Bade issued a Report and Recommendation (“R&R”) recommending that the Court deny the petition as untimely and without merit. Doc. 15. The Court will accept the R&R in part and reject it in part, and remand the petition to a magistrate judge for consideration of the claims in ground 5.

         I. Background.

         Petitioner was indicted in the Maricopa County Superior Court for fraudulent schemes and artifices, a class 2 felony (Count 1); six counts of theft of a credit card or obtaining a credit card by fraudulent means, class 5 felonies (Counts 2-4, 6-8); and aggravated taking of the identify of another, a class 3 felony (Count 5). A jury found Petitioner guilty of all counts except Count 2, on which the court declared a mistrial. Id. at 1-2. Petitioner was sentenced to twenty years in prison on Count 1, six years on Counts 3, 4, and 6-8, and fifteen years on Count 5, with the sentences on Counts 1 and 5 to run concurrently with the sentences for the other counts and the sentences on Counts 3-4 and 6-8 to run consecutively to one another.

         Petitioner asserts six grounds for relief: (1) the trial court erred by denying Petitioner's motion for acquittal based on insufficient evidence on Count 1; (2) the indictment was defective and duplicitous; (3) Petitioner's Fifth Amendment due process rights were violated as to Counts 1, 2, and 8; (4) a “lack of subject matter jurisdiction” existed for the state court's application of procedural rules governing special action proceedings; (5) ineffective trial and appellate counsel; and (6) Petitioner's right to a fair trial was violated because one of a juror's bias. Docs. 15 at 4; 1.

         II. Legal Standard.

         This 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). “[T]he 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). 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).

         III. Discussion.

         Petitioner filed two objections to the R&R. He objects to Judge Bade's findings that his petition was untimely filed and that he failed to fairly present his federal claims in state court and exhaust his state remedies. Doc. 16 at 2, 6.

         A. Timeliness.

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year deadline for filing an initial habeas petition, running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d). The one-year limitation is statutorily tolled during the time that a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Post-conviction review is “pending” - tolling the state of limitations - while a prisoner pursues post-conviction relief in state court. Carey v. Saffold, 536 U.S. 214, 219-21 (2002). But an untimely state petition is not “properly filed” pursuant to § 2244(d)(2) and does not toll the statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005); Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007).

         A petitioner bears the burden of showing that equitable tolling is appropriate, and to do so must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Raspberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (quoting Pace, 544 U.S. at 418).

         Petitioner was sentenced on May 9, 2012. Doc. 15 at 2. He filed a direct appeal in the Arizona Court of Appeals, which was denied. He then obtained an extension to October 1, 2013 to file a petition for review in the Arizona Supreme Court. Doc. 13, Exs. B, E, V. On October 3, 2013, the Arizona Supreme Court denied a motion for another extension of time and dismissed the matter. Doc. 13, Ex. V. Because Petitioner did not file a petition for review by the deadline, his convictions became final under 28 U.S.C. § 2244(d)(1)(A) on October 1, 2013, “when his time for seeking review with the State's highest court expired.” See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The AEDPA's one-year deadline therefore began to run the next day, October 2, 2013, and expired one year later unless tolling applies.

         The R&R found that post-conviction proceedings were no longer pending as of July 1, 2016, or at the latest, August 24, 2016. Doc. 15 at 7-9 (citing Ariz. R. Crim P. 32.9(c)). Accounting for statutory tolling during those proceedings, the R&R found that the statute of limitations deadline for Petitioner to file his § 2254 petition in this Court expired on August 3, 2017, more than six months before Petitioner filed on February 14, 2018. Id. at 9. The R&R also addressed a second untimely and successive petition for post-conviction relief that Petitioner filed in ...