Binkley v. Shinn ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bradley Corwin Binkley, No. CV-18-08243-PCT-MTL 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 Before the Court is Bradley Binkley’s Petition for Writ of Habeas Corpus. (Doc. 16 1.) The Court has reviewed the Petition, Response to the Petition (Doc. 9), Reply to the 17 Response (Doc. 10), Report and Recommendation (“R&R”) (Doc. 13), Objection to the 18 R&R (Doc. 21), and Response to the Objection (Doc. 18). The Court will overrule the 19 Objection and adopt the recommendation to dismiss the Petition. 20 I. BACKGROUND 21 A jury convicted Petitioner for luring a minor for sexual exploitation and 22 tampering with evidence. (Doc. 9-1 at 5.) The Arizona Court of Appeals affirmed. 23 (Doc. 9-2 at 15.) Petitioner sought discretionary review by the Arizona Supreme Court, 24 which was denied. During a subsequent state post-conviction relief process, he presented 25 two issues to the Arizona Court of Appeals: that Petitioner was sentenced under a facially 26 overbroad statute and that his convictions violated the Arizona and federal double 27 jeopardy clauses. State v. Binkley, No. 2 CA-CR 2017-0072-PR, 2017 WL 1193699, at 28 *1 (Ariz. Ct. App. 2017). The Court of Appeals granted review and denied relief. Id. at 1 *2. On September 12, 2017, the Arizona Supreme Court denied Petitioner’s request for 2 review. (Doc. 9-2 at 122.) 3 Petitioner mailed his Petition for Writ of Habeas Corpus to this Court on 4 September 27, 2018. (Doc. 1.) He asserted five grounds for relief: (1) facial overbreadth 5 of the statute which defines luring a minor for exploitation; (2) lack of jurisdiction in the 6 county where he was tried; (3) violation of the U.S. Constitution’s Double Jeopardy 7 Clause; (4) prosecutorial vindictiveness in his post-conviction proceedings; and (5) the 8 statute authorizing lifetime probation is overbroad and violates due process. (Id.) 9 II. LEGAL ANALYSIS 10 A. Legal Standard on Petition for Writ of Habeas Corpus 11 “When a federal district court reviews a state prisoner’s habeas corpus petition 12 pursuant to 28 U.S.C. § 2254, it must decide whether the petitioner is ‘in custody in 13 violation of the Constitution or laws or treaties of the United States.’” Coleman v. 14 Thompson, 501 U.S. 722, 730 (1991) (quoting 28 U.S.C. § 2254). Habeas petitions are 15 governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 16 U.S.C. § 2244. AEDPA provides a one-year statute of limitations concerning habeas 17 petitions. 28 U.S.C. § 2244(d)(1). That period runs from the latest of: 18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 19 seeking such review; 20 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws 21 of the United States is removed, if the applicant was 22 prevented from filing by such State action; 23 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has 24 been newly recognized by the Supreme Court and made 25 retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or 26 claims presented could have been discovered through the 27 exercise of due diligence. 28 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect 1 to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 2 3 28 U.S.C. § 2244(d)(1), (d)(2). 4 This Court reviews de novo those portions of the Magistrate Judge’s report subject 5 to an objection. 28 U.S.C. § 636(b)(1)(C). The Court “may accept, reject, or modify, in 6 whole or in part, the findings or recommendations made by the magistrate judge.” Id. 7 District courts are not required to review “any issue that is not the subject of an 8 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 9 B. Petitioner’s Objections 10 The R&R found that ADEPA’s one-year statute of limitations ended on September 11 12, 2018, one year after the Arizona Supreme Court denied review of the post-conviction 12 proceedings. (Doc. 13 at 5.) Further, it found that none of the criteria for equitable tolling 13 applied. (Id. at 5-7.) Additionally, the R&R found that all claims were either 14 procedurally defaulted or non-exhausted. (Doc. 13 at 8-9.) The R&R found that none of 15 the exceptions allowing a habeas court to hear a procedurally defaulted claim apply. 16 (Doc. 13 at 10.) 17 In his Objection, Petitioner argues that his post-conviction relief proceedings were 18 his first opportunity to raise ineffective assistance of counsel claims, thus making it an of- 19 right proceeding. (Doc. 21 at 13.) As a result, Petitioner argues, he had the right to seek 20 certiorari from the United States Supreme Court, tolling the statute of limitations beyond 21 the September 2017 statute of limitations deadline calculated in the R&R. (Id.) He also 22 alleges that Arizona Department of Corrections facilities “do not have law libraries,” thus 23 providing a basis for equitable tolling. (Id. at 20.) Finally, he alleges that any procedural 24 default would be excused under Martinez v. Ryan, which holds that “inadequate 25 assistance of counsel at initial-review collateral proceedings may establish cause for a 26 prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez v. 27 Ryan, 566 U.S. 1, 9 (2012). (Doc. 21 at 21.) 28 Petitioner’s state court post-conviction proceedings were collateral rather than 1 direct, of-right review because he was convicted by a jury. See Ariz. R. Crim. P. 32.1 2 (“A defendant who plead guilty or no contest . . . may file an of-right notice of post- 3 conviction relief.”). Thus, the time for Petitioner to seek certiorari did not fall within the 4 scope of 28 U.S.C. § 2244(d)(1)(A)’s tolling provision. The Court finds that the R&R 5 correctly calculated the statute of limitations. Petitioner’s claim that Arizona prisons do 6 not have law libraries is dubious, especially in light of his detailed statutory and 7 constitutional interpretation arguments with case citations. His cursory assertion does not 8 meet his “heavy burden to show that [he] is entitled to equitable tolling. . . .” See Rudin 9 v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2014). Finally, Martinez v. Ryan does not apply 10 as Petitioner suggests in his Objection. Martinez allows a habeas court to hear certain 11 ineffective assistance of counsel claims that would otherwise be procedurally defaulted. 12 Martinez, 566 U.S. at 9. While Petitioner does attribute his procedural default to 13 attorneys, none of the claims before this Court are ineffective assistance of counsel 14 claims. Therefore, Martinez does not apply. The Court overrules the Objection and 15 adopts the R&R. 16 C. Certificate of Appealability 17 The R&R finds that because Petitioner has not made a substantial showing that a 18 state court denied a constitutional right, the Court should deny a certificate of 19 appealability. (Doc. 13 at 12.) The Objection requests a certificate of appealability 20 without making a sufficient supporting argument. (Doc. 21 at 22.) This Court finds that 21 jurists of reason would not “find it debatable whether the Petition states a valid claim of 22 the denial of a constitutional right . . . [or that] the district court is correct in its 23 procedural ruling” that the claims are time-barred and procedurally defaulted. See Slack 24 v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, the Court will deny the certificate of 25 appealability. 26 III. CONCLUSION 27 Accordingly, 28 IT IS ORDERED adopting the Report and Recommendation. (Doc. 13.) 1 IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus 2|| (Doc. 1) and dismissing it with prejudice. 3 IT IS FURTHER ORDERED denying Petitioner’s request for a Certificate of 4|| Appealability. (Doc. 21 at 22.) 5 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment. 6 Dated this 18th day of March, 2020. 7 Michael T. Liburdi 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-