Griffet 035518 v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Phillip Meril Griffet, No. CV-19-00700-PHX-DJH 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus 16 pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1). After a thorough review, Magistrate 17 Judge James F. Metcalf issued a Report and Recommendation (“R&R”) finding the Petition 18 untimely and recommending that it be dismissed with prejudice and that Petitioner’s 19 request for certificate of appealability be denied (Doc. 22). Petitioner filed a timely 20 Objection to the R&R (“Objection”) (Doc. 23). For the following reasons, the Court will 21 overrule Petitioner’s Objection and adopt Judge Metcalf’s R&R. 22 I. Background 23 No party objects to the R&R’s factual background, so the Court will accept and 24 adopt it. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (noting that the relevant provision 25 of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any 26 review at all . . . of any issue that is not the subject of an objection”). Here the Court 27 summarizes the relevant facts as stated in the R&R. 28 Petitioner was convicted at trial in Maricopa County Superior Court of sexual 1 conduct with a seven-year-old minor. (Doc. 22 at 1). He filed a direct appeal, which the 2 Arizona Court of Appeals denied on June 20, 2017, affirming the conviction and life 3 sentence. (Id. at 2). Petitioner did not seek reconsideration or file a petition for review. 4 (Id.) On August 9, 2017, the Arizona Court of Appeals issued its Mandate. (Id.) 5 On November 6, 2017, Petitioner filed a Notice of Post-Conviction Relief (“PCR”) 6 in which he raised claims of ineffective assistance of counsel, newly discovered evidence, 7 and actual innocence. (Id.) On December 13, 2017, the PCR court denied the Notice as 8 untimely, and Petitioner sought no further review. (Id.) On February 1, 2019, Petitioner 9 filed his federal Habeas Petition, although the Petition itself avers it was placed in the 10 prison mailing system on “1-24-2019.” (Doc. 1 at 11). 11 The R&R concluded that the Petition was barred by the Antiterrorism and Effective 12 Death Penalty Act of 1996’s (“AEDPA”) statute of limitations. (Doc. 22 at 8). In arriving 13 at this conclusion, the R&R found that Petitioner’s conviction became final on Wednesday, 14 July 25, 2017, when his time to file a petition for review of Arizona Court of Appeal’s 15 decision ended. (Id. at 4). Therefore, to be considered timely under AEDPA’s one-year 16 statute of limitations, Petitioner should have filed a petition on or before July 25, 2018. 17 (Id. at 8). The R&R, applying the mailbox rule to the Petition, concluded that the Petition’s 18 filing date of January 24, 2019 was 183 days delinquent. (Id.) 19 Ultimately, the R&R found that Petitioner had not put forth any grounds to equitably 20 toll the statute of limitations. (Id. at 7). The R&R also declined to toll the statute of 21 limitations based on the grounds of actual innocence because Petitioner had made “no 22 claim of actual innocence based on new credible evidence, and the record reveals none.” 23 (Id. at 8). 24 II. Legal Standard 25 The district judge “shall make a de novo determination of those portions of the 26 report or specified proposed findings or recommendations to which objection is made.” 28 27 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine 28 de novo any part of the magistrate judge’s disposition that has been properly objected to.”); 1 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). The judge 2 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 3 by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). 4 Objections are to the R&R, and they are not to “be construed as a second opportunity 5 to present the arguments already considered by the Magistrate Judge.” Betancourt v. Ace 6 Ins. Co. of Puerto Rico, 313 F. Supp.2d 32, 34 (D.P.R. 2004). It is well-settled that “‘failure 7 to object to a magistrate judge’s factual findings waives the right to challenge those 8 findings[.]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) (quoting Miranda 9 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation marks omitted) 10 (footnote omitted)). 11 III. Petitioner’s Objections 12 The Court infers two objections to the R&R. First, Petitioner claims to have been 13 incapable of filing in a timely manner because he was not appointed counsel, lacks legal 14 knowledge, is of an advanced age, and suffers from post-traumatic stress disorder. 15 (Doc. 23 at 1). From this, the Court construes this as an argument in favor of equitably 16 tolling the statue of limitations. Second, Petitioner objects to the R&R on the grounds that 17 he was actually innocent. He claims his trial counsel was ineffective, that the prosecutor 18 at his trial engaged in misconduct, and that evidence and testimony from the trial actually 19 demonstrates his evidence, among other critiques of the trial court proceedings. (Id. at 6). 20 IV. Analysis 21 The Court will first address equitable tolling and proceed to the arguments for actual 22 innocence. 23 The Petitioner bears the burden of providing proof that equitable tolling is 24 warranted. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The R&R found Petitioner 25 had not proffered any grounds for equitable tolling. (Doc. 22 at 7). To the extent that 26 Petitioner argues the statute of limitations should be tolled because he lacks a lawyer or 27 legal sophistication, this is not enough to warrant equitable tolling. See Rasberry v. Garcia, 28 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro se petitioner's lack of legal sophistication is 1 not, by itself, an extraordinary circumstance warranting equitable tolling.”). In addition, 2 Petitioner has failed to provide the Court with any evidence beyond self-serving statements 3 that his age or post-traumatic stress disorder inhibited him from diligently filing his claim. 4 Petitioner still has not met his burden to demonstrate that the statute of limitations should 5 be equitably tolled. See Pace, 544 U.S. at 418. 6 As to the question of actual innocence, to toll the statute of limitations Petitioner 7 “must show that it is more likely than not that no reasonable juror would have convicted 8 him in the light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 385 (2013) 9 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The R&R found Petitioner had made 10 “no claim of actual innocence based on new credible evidence and the record reveals none.” 11 (Doc. 22 at 8). Petitioner’s Objection, likewise, cites no new credible evidence that shows 12 no reasonable juror would have convicted him. Although a portion of the Objection is 13 captioned “New Evidence,” all it contains is speculation about evidence that might exist, 14 such as interview tapes and DNA evidence contained in saliva. (Doc. 23 at 4–5). There is 15 no identification of new evidence, and no reasonable juror would change their view in light 16 of Petitioner’s Objection. 17 V. Conclusion 18 Based on the foregoing, 19 IT IS HEREBY ORDERED that Magistrate Judge Metcalf’s R&R (Doc. 22) is 20 accepted and adopted. Petitioner’s Objections (Doc. 23) are overruled. 21 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 22 to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice. 23 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the RULES 24 Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma 25 pauperis on appeal are denied because dismissal of the Petition is justified by a plain 26 procedural bar and jurists of reason would not find the procedural ruling debatable. 27 … 28 … 1 IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. 3 Dated this Ist day of November, 2021. 4 5 JL — — —__f 6 Ke Diangé. 7 United States District Fudge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-