Evans v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Evans, No. CV-20-08291-PCT-DLR (MTM) 10 Petitioner, ORDER 11 v. 12 David Shinn, 13 Respondent. 14 15 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 16 Michael T. Morrissey (Doc. 15) regarding Petitioner’s Amended Petition for Writ of 17 Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 4). The R&R recommends that 18 the Amended Petition be denied and dismissed with prejudice. The Magistrate Judge 19 advised the parties that they had fourteen days from the date of service of a copy of the 20 R&R to file specific written objections with the Court. Petitioner filed an objection to the 21 R&R on July 6, 2021 (Doc. 16) and Respondents filed their response on July 20, 2021 22 (Doc. 17). 23 Petitioner’s Amended Petition presents two grounds for relief. First, he claims the 24 state court violated his Fifth and Fourteenth Amendment rights by refusing to allow him to 25 proceed with an untimely petition for post-conviction relief (“PCR”). Second, he alleges 26 the state court violated his Sixth Amendment rights by failing to appoint counsel to 27 represent him in his PCR. 28 The Court has considered the objections and reviewed the R&R de novo. See Fed. 1 R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The R&R recommends that the Amended Petition 2 be denied because it is untimely. Petitioner’s objection argues that he, “an 80-year-old 3 man who has never been in trouble before, trusted the jail staff and Inmate Legal Services, 4 would provide me the correct form.” (Doc. 16 at 1.) The Court understands that to be an 5 objection to the R&R’s determination that he was not entitled to equitable tolling. 6 Petitioner asserts that his failure to file a timely petition was due to jail staff providing him 7 the wrong forms. 8 I. Background 9 The R&R found that the delay in filing the notice of PCR was caused by Petitioner. 10 At his change of pela, the court advised him that, because he had pled guilty and waived 11 his right of direct appeal to the Arizona Court of Appeals, the only review of his conviction 12 available was through a PCR with the trial court. (Doc. 14 at 16-17.) At sentencing, 13 Petitioner signed a form entitled “Notice of Rights of Review After Conviction and Right 14 to Set Aside Conviction.” (Id. at 25-26.) That notice provided him with the same 15 information as provided during his change of plea; that he had no right to a direct appeal 16 and his only review was by a PCR with the trial court. 17 Despite those warnings, Petitioner filed a notice of appeal to pursue a direct appeal 18 to the Arizona Court of Appeals. After wasting time pursuing a direct appeal, Petitioner 19 eventually recognized the mistake. By then, though, the time to file a PCR had expired. 20 Petitioner requested authorization from the PCR court to file a delayed PCR. The PCR 21 court denied that request stating: 22 The defendant’s failure to file a timely notice of post- conviction relief was his own fault. The defendant ignored the 23 admonishment of the Court at the change of plea hearing. The defendant requested the wrong form from the jail. The jail staff 24 apparently provided the defendant the form he requested. The defendant ignored the dismissal of the appeal by the Court of 25 Appeals. 26 (Doc. 11-1 at 33.) 27 Petitioner appealed the PCR dismissal to the Arizona Court of Appeals, arguing that 28 the PCR court abused its discretion by not permitting him to file a late notice of PCR. 1 (Doc. 11-1 at 35.) The Arizona Court of Appeals denied relief, finding that the PCR court 2 did not abuse its discretion. (Doc. 11-1 at 66-7.) 3 II. Statute of Limitations 4 Petitions for habeas corpus are governed by the Antiterrorism and Effective Death 5 Penalty Act of 1996 (“AEDPA”). The AEDPA imposes a one-year limitation period for 6 the filing of a habeas petition “from the latest of . . . the date on which the judgment became 7 final by the conclusion of direct review or the expiration of the time for seeking such 8 review.” 28 U.S.C. § 2244(d)(1)(A). Because Petitioner pled guilty, his PCR proceeding 9 in Arizona is considered “of-right” rather than collateral review. Therefore, the statute of 10 limitations started to run at the conclusion of his PCR proceedings or, in his case, at the 11 expiration of the time for seeking PCR review. 12 III. Petitioner’s Timeline 13 Petitioner was sentenced on June 14, 2019. The state PCR Notice must be filed 14 within 90 days of sentencing. In Petitioner’s case, that would have been September 11, 15 2019. He did not file his PCR Notice until February 21, 2020. Because he did not file a 16 timely PCR, Petitioner did not receive the benefit of statutory tolling. Therefore, 17 Petitioner’s statute of limitations under the AEDPA expired on September 12, 2020. His 18 habeas petition was filed on November 6, 2020, after the limitations period expired. 19 IV. Equitable Tolling 20 Equitable tolling of the AEDPA’s limitations period is available to petitioners who 21 can show both that an extraordinary circumstance prevented him from filing on time and 22 that he has diligently pursued his rights. Holland v. Florida, 560 U.S. 631, 649 (2010). 23 The PCR court and the R&R faulted Petitioner for failing to obtain the correct forms 24 and file the correct appeal. They also found that, even though Petitioner started with the 25 wrong appeal, he still had plenty of time to file his PCR Notice within the time allowed by 26 the Arizona Rules of Criminal Procedure after the Arizona Court of Appeals dismissed his 27 case. However, Petitioner inexplicitly waited until that deadline had long passed to file his 28 PCR Notice. 1 The R&R correctly determined that Petitioner failed to establish either of the □□ required elements for equitable tolling. He has not shown that an extraordinary 3 || circumstance prevented him from filing a timely PCR Notice or that he diligently pursued 4|| his rights. 5 V. Actual Innocence 6 Petitioner’s objection alleges, for the first time, that he is not guilty. Ifa freestanding claim of actual innocence is legally cognizable in habeas proceedings, the threshold “would 8 || have to be ‘extraordinarily high’” and “contemplates a stronger showing than insufficiency 9|| of the evidence to convict.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (quoting Herrera v. Collins, 506 U.S. 390, 417 (1993)). Petitioner’s one-line assertion that he is || “NOT guilty” (Doc. 16 at 1) is not the kind of strong showing that would be necessary to || support a free-standing actual innocence claim. 13 IT IS ORDERED as follows: 14 1. Petitioner’s Objection (Doc. 16) is OVERRULED. 15 2. The R&R (Doc. 15) is ACCEPTED. 16 3. Petitioner’s Amended Petition for Writ of Habeas Corpus filed pursuant to 28 17 U.S.C. § 2254 (Doc. 4) is DISMISSED with prejudice. 18 4. Finding Petitioner’s Request for Final Ruling on Habeas Corpus (Doc. 18) moot. 19 5. A Certificate of Appealability and leave to proceed in forma pauperis on appeal 20 are DENIED because the dismissal of the Amended Petition is justified by a 21 plain procedural bar and jurists of reason would not find the ruling debatable, 22 and because Petitioner has not made a substantial showing of the denial of a 23 constitutional right. 24 6. The Clerk of the Court shall enter judgment accordingly and terminate this case. 25 Dated this 15th day of December, 2021. 26 - b 4 bla 28 Do . Rayes United States District Judge -4-