Osborn 130581 v. Shinn ( 2021 )

1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 Kevin A Osborn, No. CV-20-02344-PHX-ROS (JZB) 9 Petitioner, REPORT AND RECOMMENDATION 10 v. 11 David Shinn, et al., 12 Respondents. 13 14 15 TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES 16 DISTRICT JUDGE: 17 Petitioner Kevin A. Osborn has filed a pro se Petition for Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2254. (Doc. 1.) 19 I. Summary of Conclusion. 20 On August 22, 1997, Petitioner was sentenced to consecutive 15-year terms of 21 imprisonment for two counts of manslaughter. Because he is serving consecutive 22 sentences, the Arizona Department of Corrections denied him earned-release credits 23 toward his first sentence. In 2010, Petitioner filed a petition for post-conviction relief 24 contesting that decision. The superior court denied relief and Arizona Court of Appeals 25 affirmed the decision in 2012. Petitioner now asks the Court to reverse those rulings. The 26 habeas Petition was due January 27, 2013, but he filed the Petition on December 3, 2020. 27 Petitioner’s claims are untimely and he is not entitled to equitable tolling. Accordingly, the 28 Court will recommend that the Petition be denied and dismissed with prejudice. 1 II. Background. 2 a. Facts and Trial Procedural History. 3 On August 22, 1997, Petitioner was sentenced in Maricopa County Superior Court 4 to two consecutive 15-year terms in prison for separate counts of manslaughter, in 5 Counts I and II. (Doc. 13-1, Ex. 1, at 6; Ex. 2, at 12.) Petitioner was given credit for 475 6 days of pre-sentence custody applied to the first sentence, making the effective beginning 7 of the sentence as May 4, 1996. (Id.) 8 b. Petition for Post-Conviction Relief in State Court. 9 On March 10, 2010, Petitioner filed a post-conviction relief (PCR) petition in the 10 Maricopa County Superior Court. (Id., Ex. 3.) Therein, Petitioner requested, inter alia, that 11 “[Arizona Department of Corrections (ADC)] be ordered to apply all his [Earned Release 12 Credit (ERC) days] earned on his first sentence so that they affect his actual time served . . . 13 and that [ADC] be ordered to (retroactively) release him to his second sentence.” (Id., 14 at 38.) On March 30, 2010, the PCR court found that Petitioner’s ERC dispute with ADOC 15 was not a cognizable claim under Ariz. R. Crim. P. 32 and redesignated the proceeding as 16 a Complaint for Special Action. (Id., Ex. 4; Ex. 10 at 177-178.) On June 8, 2010, the 17 superior court accepted jurisdiction of the Special Action and denied Petitioner his 18 requested relief. (Id., Ex. 6, at 74-75.) 19 On November 30, 2010, Petitioner appealed the trial court’s denial of Special Action 20 relief to the Arizona Court of Appeals. (Id., Ex. 7.) On January 26, 2012, the Arizona Court 21 of Appeals affirmed the decision of the trial court. (Doc. 13-1, Ex. 10, at 179.)1 Petitioner 22 did not seek review of the appeals court decision with the Arizona Supreme Court. (Id., 23 Ex. 10.) 24 c. Petitioner’s Formal Inmate Grievance. 25 On November 2, 2020, Petitioner filed a formal Inmate Grievance proposing that 26 1 The Arizona courts determined that the statute in effect for Petitioner did not allow for 27 earned release credits to be applied toward a sentence unless the inmate was released from the Department of Corrections. Since Petitioner was serving consecutive sentences, he was 28 not released on Count One and was not eligible for the application of earned release credits earned under that count. (Doc. 13-1, Ex. 10, at 179.) 1 “the withheld ERC days [from the first sentence] be applied to the end of [his] second 2 sentence.” (Id., Ex. 11, at 190.) On November 6, 2020, Deputy Warden Abbl denied 3 Petitioner’s grievance, stating that “[a]n inmate serving a sentence with a consecutive 4 sentence to serve and whose date of offense is between August 13, 1986 and December 31, 5 1993 shall not be entitled to deduction of release credits.” (Id., Ex. 11, at 189.) On 6 November 10, 2020, Petitioner filed an Inmate Grievance Appeal with the Director’s 7 Office. (Id., Ex. 11, at 186.) On November 30, 2020, the Director’s Office affirmed Deputy 8 Warden Abbl’s decision to deny the grievance. (Id., Ex. 11, at 183.) 9 III. Petitioner’s Federal Habeas Petition. 10 On December 7, 2020, Petitioner filed the instant Petition. (Doc. 1.) On December 11 18, 2020, he amended his Petition. (Doc. 6.) This Court summarized the claims in 12 Petitioner’s Amended Petition as follows: 13 In Grounds One and Two, Petitioner contends he is being held in custody illegally, in violation of his Fifth and Fourteenth Amendment rights; he 14 claims he is being subjected to an unconstitutional denial of liberty and procedural due process (Ground One) and liberty and substantive due process 15 (Ground Two). In Ground Three, he alleges ADC’s treatment of Petitioner and others “creates an underclass of prisoners who are treated illegally due 16 to violation of the Equal Protection Clause” of the Fourteenth Amendment. In Ground Four, Petitioner contends he is being held in illegal custody, in 17 violation of his Fifth and Fourteenth Amendment due process rights because the 1991 version of Arizona Revised Statutes section 41-1604(B) and (D) is 18 “unconstitutionally vague” and ADC’s promulgation and enforcement of its “unconstitutional Department Order” was only possible because of the 19 ambiguous nature of the statute. 20 (Id. at 2-3.) 21 Here, Petitioner is challenging the denial of ERC on his first sentence. He states that 22 “I am not challenging my conviction or the sentence itself, only the denial by ADOC of all 23 my earned time on my first sentence, which now leaves me in illegal custody.” (Doc. 6 at 24 13.) Petitioner agrees this claim “previously was presented by petition to the Maricopa 25 County Superior Court and the Arizona Court of Appeals (both with decisions on the 26 merits). . . .” (Doc. 6 at 5.) Petitioner avows each of his four claims was similarly 27 exhausted. (Id. at 7, 9, and 10.) 28 On March 1, 2021, Respondents filed a Limited Response. (Doc. 13.) On March 23, 1 2021, Petitioner filed a reply. (Doc. 14.) 2 a. Statutory Tolling. 3 Petitioner’s PCR/Special Action proceedings ended on January 27, 2012, after he 4 did not file a petition with the Arizona Supreme Court for review of the Arizona Court of 5 Appeals decision. AEDPA provides a one-year statute of limitations concerning Petitions 6 for Habeas Corpus. 28 U.S.C. § 2244(d)(1)(A), (d)(2). Thus, Petitioner’s one-year 7 limitation to file a timely petition ended on January 27, 2013, absent additional tolling. 8 AEDPA provides for tolling of the limitations period when a “properly filed 9 application for State post-conviction or other collateral relief with respect to the pertinent 10 judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). In Arizona, post-conviction review 11 is pending once a notice of the petition is filed. See Isley v. Arizona Dep’t of Corr., 383 12 F.3d 1054, 1056 (9th Cir. 2004). See also Ariz. R. Crim. P. 32.4(a) (“A proceeding is 13 commenced by timely filing a notice of PCR with the court in which the conviction 14 occurred.”). 15 Petitioner had no petitions for relief pending from the time PCR proceedings ended 16 on January 27, 2012, so statutory tolling would not apply here. Petitioner’s subsequent 17 November 2, 2020 Formal Inmate Grievance did not reinitiate the limitations period. See 18 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding “that section 2244(d) 19 does not permit the reinitiation of the limitations period that has ended before the state 20 petition was filed.”); Jones v. Schriro, 2009 WL 775384, at *2 (D. Ariz. 2009) (dismissing 21 similar petition as untimely because petitioner was “not entitled to additional tolling during 22 the time in which he was pursuing administrative remedies, nor is he entitled to reinitiate 23 the limitations period based on an attempt in 2007 to resolve the issue with Department of 24 Correction's personnel.”). 25 b. Equitable Tolling. 26 Petitioner is not entitled to equitable tolling because he has not shown extraordinary 27 circumstances. “A petitioner who seeks equitable tolling of AEDPA’s one-year filing 28 deadline must show that (1) some ‘extraordinary circumstance’ prevented him from filing 1 on time, and (2) he has diligently pursued his rights.” Holland v. Florida, 560 U.S. 631, 2 649 (2010); Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). Petitioner bears the burden 3 of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 4 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, 5 rather than a petitioner’s lack of diligence, account for the failure to file a timely habeas 6 action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be 7 rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 8 2009). Petitioner must show that “the extraordinary circumstances were the cause of his 9 untimeliness and that the extraordinary circumstances made it impossible to file a petition 10 on time.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). “Indeed, ‘the threshold 11 necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions 12 swallow the rule.’” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation 13 omitted). The latest date for Petitioner to file a federal habeas petition was January 27, 14 2013, but Petitioner did not file until December 7, 2020. 15 Here, Petitioner submits that “multiple ADOC officials represented to me that the 16 ERCD in question would be applied at [the end of his second sentence].” (Doc. 6 at 14.) 17 He states that “[f]or years, while Petitioner was attempting to resolve this issue, numerous 18 ADOC officials told him that if he were not credited with the ERCD in question during his 19 first sentence, they would be ‘applied’ towards the end of his second sentence (in addition 20 to the ERCD earned on the second sentence).” (Id. at 16-17.) But Petitioner does not 21 describe what he has been doing “for years” to “resolve” the issue of the denial of his ERC 22 on his first sentence. Petitioner presents no grievance or legal actions pursued between 23 2013 and 2020. Petitioner had a ruling from the Arizona Court of Appeals in 2012 that 24 denied him ERC on his first sentence, but he did nothing regarding that ruling until he filed 25 the habeas Petition on December 7, 2020.2 Petitioner appears to have hoped his ERC would 26 2 Petitioner was aware of the right to file a habeas petition, as he filed a request for a stay 27 to file a habeas petition on March 21, 2000 on an unknown issue. (CV 00-0522-PHX- ROS.) The Court dismissed the matter because Petitioner did not file a petition. (Id. at 2.) 28 (Petitioner also litigated a 42 U.S.C. § 1983 action from 12/1/2008 to 3/30/2012.) (CV 08- 2193-PHX-ROS.) 1 be applied to his second sentence but he waited until 2020 to pursue that claim. When that 2 process failed, he filed this Petition requesting the Court review the 2012 decision of the 3 Arizona Court of Appeals. In his Reply, “Petitioner states that he makes no claim that the 4 ERCD in question should be ‘applied’ to his second sentence. He argues here, as he argued 5 through the state pleadings, that the ERCD in question should be given effect as to his first 6 sentence. . . .” (Doc. 14 at 7.) 7 Petitioner has not diligently pursued this claim or demonstrated that external 8 circumstances caused the delay and filing. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 9 1154 (9th Cir. 2006) (“[A] pro se petitioner’s lack of legal sophistication is not, by itself, 10 an extraordinary circumstance warranting equitable tolling.”); Waldron-Ramsey, 556 F.3d 11 at 1011 (“To apply the doctrine in ‘extraordinary circumstances’ necessarily suggests the 12 doctrine’s rarity, and the requirement that extraordinary circumstances ‘stood in his way’ 13 suggests that an external force must cause the untimeliness, rather than, as we have said, 14 merely ‘oversight, miscalculation or negligence on [the petitioner's] part, all of which 15 would preclude the application of equitable tolling.’” (alteration in original) (citation 16 omitted)). 17 c. Factual Predicate. 18 Petitioner fails to demonstrate that a new fact permits him to timely file the habeas 19 petition. A person may file a federal habeas petition one year after “the date on which the 20 factual predicate of the claim or claims presented could have been discovered through the 21 exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). But the “‘due diligence’ clock starts 22 ticking when a person knows or through diligence could discover the vital facts, regardless 23 of when their legal significance is actually discovered.” Ford v. Gonzalez, 683 F.3d 1230 24 (9th Cir. 2012). 25 Here, Petitioner was aware of the facts relevant to the claim exhausted in the 26 Arizona Court of Appeals in 2012. The Arizona Appeals Court ruled that “the superior 27 court correctly rejected Osborn’s claim ADOC wrongfully denied him earned release 28 credits.” (Doc. 13-1, Ex. 10, at 179.) Petitioner fails to present facts that would materially 1 alter how the state courts ruled on the initial PCR Petition. Thus, Petitioner was entirely 2 aware of “the factual predicate of” the claim in the instant Petition at the time he filed the 3 unsuccessful PCR Petition, so the statutory deadline to file a habeas petition cannot be 4 extended under 28 U.S.C. § 2244(d)(1)(D). See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 5 (9th Cir. 2001) (“[The limitation period] begins when the prisoner knows (or through 6 diligence could discover) the important facts, not when the prisoner recognizes their legal 7 significance.”). 8 IV. Conclusion. 9 Based on the above analysis, the Court finds that Petitioner’s claim is untimely. 10 Petitioner’s claim was not statutorily tolled, Petitioner fails to make any showing of 11 extraordinary circumstances necessary for equitable tolling. The Court will therefore 12 recommend that the Amended Petition for Writ of Habeas Corpus (doc. 6) be denied and 13 dismissed with prejudice. 14 IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of 15 Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 6) be DENIED and DISMISSED 16 WITH PREJUDICE. 17 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave 18 to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition 19 is justified by a plain procedural bar and reasonable jurists would not find the ruling 20 debatable, and because Petitioner has not made a substantial showing of the denial of a 21 constitutional right. 22 This recommendation is not an order that is immediately appealable to the Ninth 23 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 24 Appellate Procedure, should not be filed until entry of the district court’s judgment. The 25 parties shall have 14 days from the date of service of a copy of this Report and 26 Recommendation within which to file specific written objections with the Court. See 28 27 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days 28 within which to file a response to the objections. 1 Failure to timely file objections to the Magistrate Judge’s Report and || Recommendation may result in the acceptance of the Report and Recommendation by the 3|| district court without further review. See United States vy. Reyna-Tapia, 328 4] F.3d 1114,1121 (th Cir. 2003). Failure to timely file objections to any factual 5 || determinations of the Magistrate Judge will be considered a waiver of a party’s right to □□ appellate review of the findings of fact in an order of judgment entered pursuant to the □□ Magistrate Judge’s Report and Recommendation. See Fed. R. Civ. P. 72. 8 Dated this 13th day of July, 2021. 9 10 leo □ 1 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-