United States District Court, D. Arizona
ORDER
Honorable Jennifer G. Zipps United States District Judge
Before
the Court is Magistrate Judge Lynette C. Kimmins' Report
and Recommendation (R&R) recommending that the District
Court dismiss Mr. Hertel's Petition for Writ of Habeas
Corpus filed pursuant to 28 U.S.C. § 2254 because the
Petition is time-barred. (Doc. 23.) Mr. Hertel has filed an
objection, arguing that his Petition should not be
time-barred because his Petition was timely under at least
one subsection of 28 U.S.C. § 2244(d)(1), that
Petitioner is actually innocent, and that he is entitled to
equitable tolling. After reviewing the record, the Court will
overrule Defendant's objection and adopt Judge
Kimmins' R&R.
STANDARD
OF REVIEW
When
reviewing a Magistrate Judge's Report and Recommendation,
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) (emphasis omitted). 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); Fed.R.Civ.P. 72.
DISCUSSION
The
R&R sets forth the relevant factual background in greater
detail. In short, Petitioner was found guilty of Sexual
Conduct with a Minor under 15 on August 1, 2001, and on
October 22, 2012, [1] was sentenced to 20 years of imprisonment.
The court of appeals affirmed his sentence and conviction on
October 23, 2012, and he did not petition for review with the
Arizona Supreme Court. Petitioner ultimately filed two
unsuccessful Petitions for Post-Conviction Relief (PCR)-the
first of which the Arizona Supreme Court denied review on
July 1, 2015, and the second of which the court of appeals
ultimately denied on February 23, 2017. On April 16, 2018,
Petitioner filed a Petition for Writ of Habeas Corpus, now
before the Court.
Petitioner
first argues that he should not have been sentenced under
§ 13-705, the statute governing sentencing for
“dangerous crimes against
children.”[2] Petitioner argues that he should have been
sentenced as a first-time felony offender under the general
sentencing statute instead, now set forth in A.R.S. §
13-701(C)(1). As a general matter, where a more specific
sentencing statute applies to a charged offense, that statute
governs, and Petitioner was sentenced under the appropriate
statute. See, e.g., State v. Rice, 516 P.2d
1222, 1225 (Ariz. 1973) (when “a general statute and a
specific statute . . . are in conflict, the specific
governs”). Petitioner argues, however, that State
v. Williams, 854 P.2d 131 (Ariz. 1993), held §
13-705 to be overbroad, and that this statute should not have
been implicated in his case simply because of the
victim's age. In State v. Williams, the court
held that where a reckless driver injured a 14 year-old child
in a driving accident, there was no evidence that the
defendant's reckless driving was directed at a minor
victim so as to support a finding that he committed a
dangerous crime against children, and that the defendant
therefore should not have been sentenced under § 13-705.
Id. at 132. This holding is inapplicable to
Petitioner's case, where his conviction was for sexual
conduct with his minor daughter. As also held in
Williams, “[t]he question of whether the child
victim is the target of the defendant's criminal conduct
will rarely be an issue” in a case involving a
conviction for “sexual assault, molestation, sexual
conduct, ” and other similar offenses, because
“[i]t is impossible to imagine how” such offenses
“could be committed without targeting persons.”
Id. at 136-37.
Petitioner
further asserts that he was sentenced in violation of
Blakely v. Washington, 542 U.S. 296 (2004), and
Apprendi v. New Jersey, 530 U.S. 266 (2000), in part
because “exculpatory evidence and facts contained in
his presentence report” negated some of the elements
underlying his conviction. (Doc. 28, pg. 3, 5-6.) This
report, however, was before the judge who imposed his
sentence, and therefore does not constitute “new
evidence” of innocence that would support his petition.
See Schlup v. Delo, 513 U.S. 298, 316, 324 (1995).
Petitioner
next argues that he is actually innocent of sexual conduct
with a minor, in violation of A.R.S. § 13-1405. To
support this argument, Petitioner reiterates many of his
previously asserted claims: 1) that the trial court
improperly admitted “other acts” evidence from
Ohio; 2) that the trial court violated his right to present
at trial; 3) that the trial court violated his due process
rights by sentencing him more than 11 years after his
conviction; 4) that the trial court, appellate court, and
prosecutor discriminated against him, and; 5) that his trial
and appellate counsel were constitutionally ineffective.
(Doc. 24, pgs. 10-15.) As stated by Judge Kimmins,
“[a]ctual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is
a procedural bar, ” or “expiration of the statute
of limitations.” McQuiggin v. Perkins, 569
U.S. 383, 386 (2013). “[A] petitioner does not meet the
threshold requirement” for an actual innocence claim,
however, “unless he persuades the district court that,
in light of new evidence, ” which was not presented at
trial, ‘no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 324, 329. To support
Petitioner's claims, he does not present any new evidence
not presented at trial.
Finally,
Petitioner argues that his Petition was, in fact, timely
filed. He first asserts that under either 28 U.S.C. §
2244(d)(1)(A) or (B), he was entitled one year to file from
his second PCR, rather than his first, because he second PCR
was not untimely. As found in the R&R, however,
Petitioner filed his Petition more than one year from the
date on which his judgment became final, whether tolled
through the denial of his first or second PCR. See
28 U.S.C. § 2244(d)(1)(A). Petitioner next asserts that
his position was timely under § 2244(d)(1)(D), because
the limitations period should have run from the time at which
Petitioner discovered State v. Williams, which he
claims undercut the applicability of A.R.S. § 13-705 to
his conviction. But as already stated, Williams does
not affect Petitioner's case.
Petitioner
also asserts that his Petition was timely under §
2244(d)(1)(C), because Betterman v. Montana, 136
S.Ct. 1609 (2016) “establishes a new substantive rule
voiding sentences issued too long after conviction.”
(Doc. 24, pg. 17.) Betterman held that the Sixth
Amendment speedy trial right “does not extend beyond
conviction, ” noting that “[a]fter conviction, a
defendant's due process right to liberty, while
diminished, is still present, ” such that “due
process serves as a backstop against exorbitant delay.”
Id. at 1617. Betterman did not purport to
define what type of delay would run afoul of the due process
clause, but Petitioner has failed to articulate what
prejudice he suffered from the delay, the cause of which was
his own decision to abscond.
Petitioner
argues that he is entitled to equitable tolling because
“he has been pursuing his rights diligently” by
litigating claims in both Arizona and in Ohio, and because
“some extraordinary circumstance stood in his
way.” (Doc. 24, pg. 15.) See Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (litigant seeking
equitable tolling bears the burden of establishing that he
pursued his rights diligently and extraordinary
circumstances); Doe v. Busby, 661 F.3d 1001, 1012
(9th Cir. 2011) (a petitioner must demonstrate only
“reasonable diligence, ” rather than
“maximum feasible diligence”). Petitioner's
litigation efforts outside of this case, however, do not
constitute a valid justification for why he failed to advance
certain claims within a reasonable time of their
availability, or for why he delayed in filing his habeas
petition after his petitions for post-conviction relief at
the state level were denied. Petitioner argues that
extraordinary circumstances exist to warrant tolling because
“when the Pima County Superior Court decided his 2nd
PCR Petition on the merits, petitioner (1) thought he had
successfully passed the state timeliness hurdle, ” and
“(2) assumed he could timely file his instant petition
after exhausting state remedies.” In addition,
Petitioner again notes that he did not discover State v.
Williams, despite his due diligence, until recently, and
argues that under Montgomery v. Louisiana, 136.
S.Ct. 718 (2016), Judge Kimmins's and the Arizona
appellate court's findings of untimeliness should be
voided. (Doc. 24, pgs. 15-16.) As Respondents note, however,
a petitioner's educational deficiencies, ignorance of the
law, and lack of legal expertise are not extraordinary
circumstances, and do not equitably toll the limitations
period. See Ford v. Pliler, 590 F.3d 782, 789 (9th
Cir. 2009). And Montgomery v. Louisiana has no
bearing on Petitioner's case, because the state appellate
court's finding of untimeliness, as well as Judge
Kimmins's, was based on procedural rather than
substantive rules. 136. S.Ct. at 729.
Following
Judge Kimmins's R&R, Petitioner also filed a motion
seeking a certificate of appealability. Before Petitioner can
appeal this Court's judgment, a certificate of
appealability (COA) must issue. See 28 U.S.C.
§2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the
Rules Governing Section 2254 Cases. “The district court
must issue or deny a certification of appealability when it
enters a final order adverse to the applicant.” Rule
11(a) of the Rules Governing Section 2254 Cases. Pursuant to
28 U.S.C. § 2253(c)(2), a COA may issue only when the
petitioner “has made a substantial showing of the
denial of a constitutional right.” The court must
indicate which specific issues satisfy this showing.
See 28 U.S.C. §2253(c)(3). With respect to
claims rejected on the merits, a petitioner “must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). For procedural rulings, a COA will issue only if
reasonable jurists could debate whether the ...