Nixon v. Ryan ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Xavier Vincent Nixon, No. CV-18-02624-PHX-JGZ 10 Petitioner, ORDER 11 v. 12 Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the Court is Magistrate Judge Leslie A. Bowman’s Report 16 recommending the Court deny Petitioner Xavier Nixon’s Petition for Writ of Habeas 17 Corpus pursuant to 28 U.S.C. § 2254. (Doc. 18.) Petitioner has filed an objection to the 18 Report and Recommendation and Respondents have filed a response. (Docs. 21, 23). Also 19 pending is Petitioner’s “motion for order to provide Petitioner and this District Court with 20 copy of transcripts.” (Doc. 22.) 21 The Court has considered the Report and Recommendation, the Petition, and 22 arguments raised in Petitioner’s Objection and Respondents’ Response. For the reasons 23 set forth below, the Court will overrule the objection and adopt Magistrate Judge 24 Bowman’s recommendation to deny the Petition. The Court will deny Petitioner’s motion 25 for transcripts. 26 I. STANDARD OF REVIEW 27 This Court “may accept, reject, or modify, in whole or in part, the findings or 28 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “[T]he district 1 judge must review the magistrate judge’s findings and recommendations de novo if 2 objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 3 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct 4 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 5 474 U.S. 140, 149 (1985). See also 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72. 6 II. PROCEDURAL BACKGROUND 7 On November 21, 2014, Petitioner was sentenced to a 15-year term of imprisonment 8 and a 5-year term of probation after pleading guilty to attempted second degree murder and 9 aggravated assault. (Doc. 12-1 at 52–53.) At the sentencing hearing, Petitioner was given 10 written notice of his right to file for post-conviction relief (PCR), which he acknowledged. 11 (Doc. 12-1 at 59.) The deadline for filing an “of right” PCR notice was February 19, 2015. 12 (Doc. 12-2 at 16.) 13 Almost three years later, on February 12, 2018, Petitioner filed pro se a notice and 14 petition for post-conviction relief. (Doc. 12-2 at 15-16; Doc. 1 at 13–19; Doc. 1-1 at 1– 15 20.) The PCR court dismissed the notice and petition as untimely, rejecting Petitioner’s 16 argument that the untimely filing was not Petitioner’s fault. (Doc. 12-2 at 15–17.) 17 Petitioner appealed the dismissal to the Arizona Court of Appeals. (Id. at 2–12.) In addition 18 to the claims raised in the PCR petition, Petitioner also argued the PCR court’s dismissal 19 of his petition was an unreasonable determination of the facts. (Id. at 4.) The Arizona Court 20 of Appeals accepted review but denied relief on July 12, 2018, concluding Petitioner failed 21 to show the PCR court’s denial of the PCR petition was an abuse of discretion. (Id. at 65– 22 66.) Petitioner did not seek review in the Arizona Supreme Court. (Doc. 1 at 6–10.) 23 On August 17, 2018, Petitioner filed the pending Petition for Writ of Habeas Corpus 24 pursuant to 28 U.S.C. § 2254.1 (Doc. 1). The Petition contains the following claims: 25 1 Petitioner delivered the Petition to prison authorities for filing on August 17, 2017, 26 and it was filed with the Court on August 20, 2018. (Doc. 1 at 1, 11). Pursuant to the “prison ‘mailbox rule,’” the Court deems the Petition filed on August 17, 2018. See 27 Patterson v. Stewart, 251 F.3d 1243, 1245 n.2 (9th Cir. 2001) (“Under the prison ‘mailbox rule’ . . ., a pro se petitioner’s petition is deemed constructively filed at the moment it is 28 delivered to prison officials to be forwarded to the court clerk.”). - 2 - 1 2 (1) Petitioner is actually innocent because the record at the change of plea hearing failed to show that he intentionally, not recklessly, caused 3 physical injury to the victim; 4 (2) the indictment was multiplicitous and his convictions violated double jeopardy; 5 (3) first trial counsel was ineffective because counsel: (a) operated under a 6 conflict of interest; (b) refused to file a motion to dismiss multiplicitous counts; and (c) advised Petitioner to dismiss counsel and file a double 7 jeopardy motion; and second trial counsel was ineffective because 8 counsel: (d) failed to file a double jeopardy motion; (e) stated erroneously Petitioner could receive consecutive terms totaling 40 years if he went to 9 trial; (f) informed the prosecutor about a conversation counsel had with Petitioner about an inaccuracy in the plea agreement; and (g) failed to file 10 a PCR notice for him; and 11 (4) the PCR court erred in failing to excuse his untimely filing of the PCR notice and petition in violation of Due Process. 12 (Doc. 1 at 6-9.) 13 The Magistrate Judge recommended dismissing Grounds 1, 2, and 3 (a)-(f) as time- 14 barred, and Grounds 3(g) and 4 on the merits. The Magistrate Judge assumed for purposes 15 of decision that Ground 3(g) was timely and Ground 4 was cognizable and exhausted. (Doc. 16 18 at 4–11.) 17 In his Objection, Petitioner argues the Magistrate Judge erred by (1) concluding 18 Claims 1, 2, and 3(a)-(f) are time barred; (2) rejecting Petitioner’s argument that AEDPA’s 19 statute of limitations for all his claims did not begin to run until the Arizona Court of 20 Appeals filed its July 12, 2018 decision; and (3) finding the state courts acted reasonably 21 in dismissing his PCR proceeding without an evidentiary hearing. (Doc. 21.) The Court 22 will overrule the objection. 23 III. DISCUSSION 24 This Court agrees with the Magistrate Judge’s conclusion that Claims 1, 2, and 3(a)- 25 (f) are time-barred. Upon independent review, the Court concludes that Claim 3(g) is also 26 time-barred and Claim 4 is not cognizable. 27 // 28 // - 3 - 1 A. Grounds 1, 2, and 3(a)-(f) are time-barred. 2 The applicable statute of limitations for habeas petitions is set forth in 28 U.S.C. § 3 2244(d)(1)(A)-(D) and applies to each claim on an individual basis. Mardesich v. Cate, 4 668 F.3d 1164, 1170 (9th Cir. 2012). The applicable limitations period begins to run on 5 “the date on which the judgment became final by the conclusion of direct review or the 6 expiration of time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). An “of-right” 7 PCR proceeding after a guilty plea is a form of “direct review” for purposes of 28 U.S.C. 8 § 2244(d)(1)(A). Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). 9 Grounds 1, 2, and 3(a)-(f) pertain to alleged errors in Petitioner’s conviction. The 10 time for Petitioner to file his of-right PCR petition expired on February 19, 2015. Therefore 11 Petitioner’s judgment became final on February 19, 2015. See id. (“AEDPA’s one-year 12 statute of limitations does not begin to run until the conclusion of the Rule 32 of-right 13 proceeding and review of that proceeding, or until the expiration of the time for seeking 14 such proceeding or review.”). Therefore, the statute of limitations for these claims expired 15 one year later, on February 19, 2016. Petitioner’s habeas petition was untimely; it was not 16 filed with this Court until August 2018. 17 Petitioner argues that because Arizona law allows the filing of some untimely PCR 18 notices, the PCR courts should have found his habeas petition timely. (Doc. 21 at 2 (citing 19 Ariz. R. Crim P. 32.2(b)).) Petitioner’s argument is not persuasive. Petitioner incorrectly 20 asserts that the AEDPA limitations period did not commence until after the Arizona 21 appellate court denied his petition for review on July 12, 2018. Petitioner’s of-right PCR 22 proceeding, which the PCR court found to be untimely, is closely analogous to a 23 conventional direct appeal. Summers, 481 F.3d at 711. In the context of a conventional 24 direct appeal, the Ninth Circuit has rejected the proposition that dismissal of an untimely 25 notice of appeal “constitute[s] ‘the conclusion of direct review’ pursuant to § 26 2241(d)(1)(A).” Randle v. Crawford, 604 F.3d 1047, 1054–55 (9th Cir. 2010). The Randle 27 court reasoned that “[i]f the one-year limitations period were made contingent on the 28 - 4 - 1 resolution of a petitioner’s attempt to file an untimely notice of appeal, a petitioner could 2 indefinitely delay the commencement of the one-year period by simply waiting to file such 3 notice until after the normal expiration date. Sanctioning this procedure would undermine 4 the statute of limitations for federal habeas petitions.” Id. (citations omitted). There is no 5 basis to depart from that reasoning here given that §2244(d)(1)(A) applies equally to 6 conventional direct appeals and of-right PCR Petitions. Thus, Petitioner’s untimely PCR 7 notice did not delay commencement of the AEDPA limitations period. 8 To the extent Petitioner is arguing that the PCR proceeding tolled the AEDPA 9 limitations period, Petitioner is mistaken. Under 28 U.S.C. § 2244(d)(2), the limitations 10 period for filing a habeas petition can be tolled by a properly filed PCR petition in state 11 court. Statutory tolling under § 2244(d)(2) does not apply to of-right PCR petitions. See 12 Summers, 481 F.3d at 711 (of-right PCR petition was a form of direct review under § 13 2244(d)(1)(A) “that delayed the start of—rather than merely tolled the running of the 14 statute of limitations.”); Adams v. Schriro, No. CV-08-750-PHX-ROS, 2009 WL 2219291, 15 at *4 (D. Ariz. July 24, 2009) (statutory tolling does not apply where petitioner filed an of- 16 right PCR petition and not a subsequent petition for post-conviction relief). 17 Moreover, even if § 2244(d)(1) applied, “[w]hen a postconviction petition is 18 untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2).” Pace 19 v. DiGuglielmo, 544 U.S. 408, 414 (2005) (internal quotation marks and citation omitted). 20 Petitioner’s PCR notice and petition were untimely. Petitioner’s appeal of the dismissal of 21 his untimely PCR petition did not restart the limitations period. See Ferguson v. Palmateer, 22 321 F.3d 820, 823 (9th Cir. 2003) (where AEDPA limitation period expired before state 23 petition was filed, it cannot be reinitiated).2 24 25 2 The PCR court rejected Petitioner’s request to permit his untimely PCR Petition under Ariz. R. Crim. P. 32,1(f), finding that Petitioner failed to show the untimeliness was 26 without fault on his part. (Doc. 1-1 at 31.) The record amply supports this conclusion. Petitioner knew that his PCR petition needed to be filed by February 19, 2015. Petitioner 27 signed an acknowledgement to that effect. The acknowledgment warned: “[i]f you do not timely file a Notice of Post-Conviction Relief you may never have another opportunity to have any errors made in your case corrected by another court.” (Doc. 28 12-1 at 59.) Despite this warning, Petitioner made only one attempt to contact his attorney - 5 - 1 B. Ground 3(g) is time-barred 2 In the Report and Recommendation, the Magistrate Judge concluded that trial 3 counsel did not promise Petitioner that she would file a timely PCR notice for him, and 4 therefore, she was not ineffective. The Magistrate Judge reasoned that the PCR court 5 implicitly found that counsel never made such a promise, and concluded that the state 6 court’s finding was not objectively unreasonable. (Doc. 18 at 11.) Petitioner objects to the 7 finding that his attorney did not promise to file a PCR notice, asserting that that it is 8 speculation unsupported by facts in the record. The Court does not address or adopt the 9 Magistrate Judge’s finding as to Ground 3(g). Rather, the Court concludes that Ground 10 3(g) is time-barred. 11 The limitations period for Claim 3(g) began to run on “the date on which the factual 12 predicate of the claim or claims presented could have been discovered through the exercise 13 of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Due diligence is measured objectively by a 14 standard of reasonable diligence in the circumstances. Ford v. Gonzalez, 683 F.3d 1230, 15 1235-36 (9th Cir. 2012). The Court need not make any factual findings or conduct any 16 evidentiary hearing to conclude that Petitioner could have discovered through the exercise 17 of due diligence that counsel had failed to file a timely PCR notice within one year of its 18 due date—February 19, 2015. Petitioner was aware that the notice was due on that date. 19 Yet, Petitioner did not request relief from the state court until February 18, 2018, almost 20 three years later. And he did not file his petition for habeas relief with this Court until 21 about the filing of the PCR notice and that attempt did not occur until August 2017, thirty 22 months after the filing deadline expired. (See Doc. 17 at 2.) Notably, Petitioner does not allege any impediment to communicating with his attorney during the thirty-month period. 23 For the same reasons Petitioner is not entitled to equitable tolling of the habeas limitations period. Petitioner fails to show “‘(1) that he has been pursuing his rights 24 diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Lawrence v. Fla., 549 U.S. 327, 336 (2007) (quoting Pace, 544 U.S. at 418). 25 Unlike cases where equitable tolling has been allowed, Petitioner did not act with reasonable diligence. See Rudin v. Myles, 781 F.3d 1043, 1056 (9th Cir. 2014) (finding 26 petitioner reasonably diligent during period of attorney abandonment by repeatedly attempting to contact attorney, providing information to aid in his representation, and filing 27 own motion to substitute counsel); Doe v. Busby, 661 F.3d 1001, 1009, 1011-15 (9th Cir. 2011) (finding petitioner reasonably diligent where he maintained consistent contact with his attorney about the case during the relevant period and his attorney misled him for 28 several years about the status of his case). - 6 - 1 August 17, 2018. As discussed in Section A and nt. 2, even if Petitioner “ha[d] no reason 2 not to believe court appointed counsel when she told him the she w[ould] file a notice of 3 post-conviction relief” (Doc. 17 at 2), in the thirty months that passed since the notice was 4 due, he could have reasonably discovered her failure to do so. Because Petitioner did not 5 exercise reasonable diligence, his claim is time-barred. 6 C. Ground 4 is not cognizable 7 In Ground 4, Petitioner argues that the PCR court erred in failing to excuse his 8 untimely filing of the PCR notice under Arizona Rule of Criminal Procedure 32.1(f). 9 Petitioner asserts this was a violation of Due Process. The Court notes that Ground 4 is 10 intertwined with Ground 3(g) in that Petitioner challenges the PCR court’s rejection of his 11 argument that the untimely filing was not his fault because trial counsel had promised to 12 file the notice but failed to do so. As set forth supra in Section A, this Court has already 13 determined that Petitioner could have discovered through the excise of reasonable diligence 14 that counsel had failed to file a timely notice within the applicable deadline. 15 To the extent that Ground 4 is not intertwined with Ground 3(a), it is not cognizable 16 in this action. Habeas relief is available “only on the ground that [the prisoner] is in custody 17 in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 18 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“Today, we reemphasize 19 that it is not the province of a federal habeas court to reexamine state-court determinations 20 on state-law questions.”); Blair v. Martel, 645 F.3d 1151, 1157-58 (9th Cir. 2011) (a due 21 process claim to compel the speedy processing of an appeal to which prisoner is entitled 22 under state law does not necessarily imply the validity of a conviction and therefore is non- 23 cognizable in a habeas action) (citing Skinner v. Switzer, 562 U.S. 521, 533-34 & n.13 24 (2011)); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[A] petition alleging errors 25 in the state post-conviction review process is not addressable through habeas corpus 26 proceedings.”). Petitioner cannot “transform a state-law issue into a federal one merely by 27 asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). 28 - 7 - 1 Accordingly, the Court finds Petitioner’s challenge to the post-conviction review process 2 non-cognizable in this habeas action.3 3 D. Motion requesting transcripts is denied. 4 On April 1, 2019, Petitioner filed a renewed motion “for order to provide Petitioner 5 and this District Court with copy of transcripts.” (Doc. 22.) Petitioner requests transcripts 6 from his (1) settlement conference; (2) trial management conference; (3) reset 7 date/continuance; (4) status conference; (5) change of plea hearing; (6) motion for 8 continuance hearing; and (7) sentencing hearing. Petitioner argues he needs the transcripts 9 “to substantiate his claims and pleadings.” (Id. at 2.) This Court has concluded that 10 Petitioner’s claims are either time-barred or non-cognizable. Because the requested 11 transcripts could not cure these deficiencies, the Court will deny the motion. 12 IV. CERTIFICATE OF APPEALABILITY 13 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 14 (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the 15 Rules Governing Section 2254 Cases. “The district court must issue or deny a certificate 16 of appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the 17 Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may 18 issue only when the petitioner “has made a substantial showing of the denial of a 19 constitutional right.” The court must indicate which specific issues satisfy this showing. 20 See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a petitioner “must 21 demonstrate that reasonable jurists would find the district court’s assessment of the 22 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 23 For procedural rulings, a COA will issue only if reasonable jurists could debate whether 24 the petition states a valid claim of the denial of a constitutional right and whether the court’s 25 procedural ruling was correct. Id. Applying these standards, the Court concludes that a 26 27 3 Based on this conclusion, the Court does not address Petitioner’s other objections to the dismissal of Ground 4. 28 - 8 - ! certificate should not issue, as the resolution of the petition is not debatable among reasonable jurists. ° V. CONCLUSION ‘ For the foregoing reasons, ° IT IS ORDERED: 6 1. The Report and Recommendation (Doc. 18) to deny the Petition is ADOPTED. 2. Petitioner’s Objection to the Report and Recommendation (Doc. 21) is 8 OVERRULED. 3. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED with 10 prejudice. 4. Petitioner’s Motion for Order to provide Petitioner and this District Court with copy 2 of transcripts (Doc. 22) is DENIED. 8 5. A certificate of appealability is DENIED. i 6. The Clerk of Court shall enter judgment accordingly and close the file in this action. Dated this 11th day of October, 2019. 17 . 18 Honorable Jennifer’# Zfpps 19 United States District Judge 20 21 22 23 24 25 26 27 28 -9-