Thomas 076784 v. Shinn ( 2022 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Arthur Truman Thomas, No. CV-21-01238-PHX-JJT (MHB) 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 At issue is the Report and Recommendation (Doc. 10, “R&R”) submitted in this 16 matter by United States Magistrate Judge Michelle H. Burns, recommending the Court 17 deny and dismiss with prejudice the Petition for Writ of Habeas Corpus pursuant to 18 28 U.S.C. § 2254 (Doc. 1). Petitioner filed timely an objection to the R&R (Doc. 11), to 19 which Respondents timely replied (Doc. 13). The Court will adopt the R&R and dismiss 20 with prejudice the Petition. 21 In the R&R, Judge Burns correctly analyzes that the Petition is more than ten years 22 untimely, not statutorily tolled and without excuse sufficient to justify equitable tolling. 23 Petitioner was sentenced in the underlying matter on May 19, 2009. Thereafter he had 90 24 days—until August 17, 2009—to initiate postconviction proceedings. Petitioner did not so 25 initiate any proceedings in the state court, and so his conviction became final as of that date 26 for purposes of commencing running of the limitations period for federal habeas relief per 27 28 U.S.C. § 2254(d)(1). He therefore had until August 17, 2010, to file a petition for habeas 28 review in this Court. He did not do so until July 15, 2021—nearly eleven years too late. 1 Although Petitioner filed for post-conviction review in the state court on August 28, 2020, 2 that filing was also untimely by more than ten years under Arizona law and thus did not 3 statutorily toll the limitations period for federal habeas review. See Ferguson v. Palmateer, 4 321 F.3d 820, 823 (9th Cir. 2003). 5 Judge Burns also correctly concluded that Petitioner does not present evidence 6 sufficient to trigger statutory tolling for later discovery of “the factual predicate” of his 7 claim delayed despite “the exercise of due diligence” on Petitioner’s part pursuant to 8 28 U.S.C. § 2254(d)(1)(D). In other words, Judge Burns correctly found Petitioner had not 9 shown due diligence in his failure to discover, until 2020, a purported change in law that 10 occurred in 2009, despite the purported repeal of state statutes being published and readily 11 available since that date. For the same reason, Judge Burns correctly found that Petitioner 12 could not qualify for equitable tolling of the habeas limitations period due to his failure to 13 show he diligently pursued his rights. United States v. Aguirre-Ganceda, 592 F.3d 1043, 14 1045 (9th Cir. 2010). 15 In his Objection, as in his Petition and Reply, Petitioner asserts that on August 25, 16 2020, he discovered a “signed statement” from the Hon. Richard D. Nicholes,” whom 17 Petitioner identifies as an Arizona Superior Court Judge, purportedly supporting his 18 contention that his conviction was based on a statute that was repealed January 1, 2009, 19 and therefore unconstitutional. His argument that the habeas limitations period should have 20 been tolled until that date of discovery of the “signed statement” is unpersuasive. First, 21 Petitioner fails to produce or even cite the “signed statement,” leaving the Court to take on 22 faith its foundation, authenticity and purported content. More importantly, even if such 23 document is as Petitioner purports, and its content is as represented, the fact that Petitioner 24 did not encounter it until August of 2020 does not excuse his lack of diligence in failing to 25 uncover the repeal of a statute that has been open and notorious since January 2009. Plainly 26 and simply, Petitioner is more than ten years too late without cognizable excuse, as Judge 27 Burns concluded. 28 . . . . 1 IT IS ORDERED overruling Petitioner’s Objections (Doc. 11) and adopting in whole the R&R (Doc. 10) submitted by Judge Burns in this matter. 3 IT IS FURTHER ORDERED denying and dismissing with prejudice the Petition 4|| for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). 5 IT IS FURTHER ORDERED denying a certificate of appealability and leave to || proceed in forma pauperis on appeal. Dismissal of the Petition is justified by a plain procedural bar, and jurists of reason would not find the procedural ruling debatable. The 8 || Clerk of Court shall terminate this matter. 9 Dated this 28th day of January, 2022. CN 11 wefeholee— Unifgd State#District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-