Hale v. Shinn

— 1 — WO — 2 — — 3 — — 4 — — 5 — — 6 — IN THE UNITED STATES DISTRICT COURT — 7 — FOR THE DISTRICT OF ARIZONA — 8 — — 9 — Michael Hale, No. CV-18-04523-PHX-DJH — 10 — Petitioner, ORDER — 11 — v. — 12 — David Shinn, et al., — 13 — Respondents. — 14 — This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus — 15 — pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1), filed on December 6, 2018, and the — 16 — Report and Recommendation (“R&R”) issued by United States Magistrate Judge — 17 — Deborah M. Fine (Doc. 23) on December 16, 2019. Petitioner filed an Objection to the — 18 — R&R (“Objection”) (Doc. 26) on January 21, 2020. Respondents filed a Response to — 19 — Petitioner’s Objection (“Response”) (Doc. 27) on February 4, 2020. — 20 — Petitioner raised a single ground for relief in his Petition: that his conviction for — 21 — Sexual Exploitation of a Minor was legally insufficient because the indictment failed to — 22 — identify and name the specific child victims, which Petitioner asserts is an essential element — 23 — of the offense. (Doc. 1 at 6). After a thorough analysis, the Magistrate Judge determined — 24 — that the Petition was filed after the statute of limitations period expired, that Petitioner was — 25 — not entitled to statutory or equitable tolling, and that Petitioner has not demonstrated actual — 26 — innocence. (Doc. 23). Accordingly, the Magistrate Judge recommends the Petition be — 27 — denied and dismissed with prejudice. (Doc. 23 at 18–19). — 28 — — 1 — I. Standard of Review — 2 — The district judge “shall make a de novo determination of those portions of the report — 3 — or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. — 4 — § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de — 5 — novo any part of the magistrate judge’s disposition that has been properly objected to.”); — 6 — United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). The district — 7 — judge “may accept, reject, or modify, in whole or in part, the findings or recommendations — 8 — made by the magistrate judge.” 28 U.S.C. § 636 (b)(1)(C); Fed. R. Civ. P. 72(b)(3). — 9 — II. Background — 10 — The Magistrate Judge set forth the full procedural background of this case in the — 11 — R&R. (Doc. 23 at 2–6). The Court need not repeat that information here. Petitioner objects — 12 — to the Magistrate Judge’s recitation of the procedural background insofar as it purportedly — 13 — omits one of Petitioner’s state habeas petitions. (Doc. 26 at 2). The Court located this — 14 — petition using the Maricopa County Superior Court’s public, online civil docket.1 — 15 — Petitioner correctly asserts that neither the Magistrate Judge nor the Respondents mention — 16 — this petition. But the public docket indicates that the action, a petition for writ of habeas — 17 — corpus, was filed on August 22, 2016, and was withdrawn by Petitioner on June 2, 2017. — 18 — As will be discussed in Part IV.A., these dates fall outside of AEDPA’s one-year statute of — 19 — limitations, and the absence of statutory and equitable tolling make this petition irrelevant — 20 — to the Court’s analysis. — 21 — Beyond this limited objection, Petitioner has not objected to any of the relevant — 22 — information in the background section. Accordingly, the Court adopts that portion of the — 23 — R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (The relevant provision of the Federal — 24 — Magistrates Act, 28 U.S.C. § 636 (b)(1)(C), “does not on its face require any review at all — 25 — of any issue that is not the subject of an objection.”). — 26 — … — 27 — 1 The case history can be found at — 28 — http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/caseInfo.asp?caseNumber=cv2016-093144 (last visited Apr. 19, 2021). — 1 — III. Petitioner’s Objections — 2 — Aside from the factual objection mentioned above, Petitioner lodges four objections — 3 — against the Magistrate Judge’s R&R. First, Petitioner argues that for purposes of statutory — 4 — tolling, his discovering that the indictment failed to identify and name specific child victims — 5 — was a “factual predicate,” not a legal argument, and that as a result, each of his subsequent — 6 — state post-conviction relief proceedings tolled the statute of limitations. (Doc. 26 at 3). — 7 — Second, Petitioner argues that he is entitled to equitable tolling in assessing the timeliness — 8 — of his federal habeas petition. (Id. at 4). Third, Petitioner claims that the Magistrate Judge — 9 — improperly analyzed the merits of his Petition because Respondents “conceded” the merits — 10 — by failing to address them in their Response. (Id. at 5–6). Petitioner then proceeded to — 11 — address the merits. (Id. at 7–11). Finally, Petitioner argues that he is entitled to an — 12 — evidentiary hearing. (Id. at 12). — 13 — The Court will discuss each objection in turn. — 14 — IV. Analysis — 15 — AEDPA imposes a one-year statute of limitations on state prisoners’ federal — 16 — petitions for writ of habeas corpus. 28 U.S.C. § 2244 (d)(1). Section 2244(d)(1) states that — 17 — the limitations period shall run from the latest of the date on which: (A) direct review — 18 — becomes final, (B) an unlawful state-created impediment to filing is removed, (C) a new — 19 — constitutional right is made retroactively available, or (D) the factual predicate of the — 20 — claims presented could have been discovered with due diligence. 28 U.S.C. — 21 — § 2244(d)(1)(A)–(D); Lee v. Lampert, 653 F.3d 929, 933 (9th Cir. 2011); Hasan v. Galaza, — 22 — 254 F.3d 1150, 1153 (9th Cir. 2001). — 23 — After conducting its own de novo review, the Court agrees with the Magistrate Judge — 24 — that this Petition is untimely because Petitioner filed it more than two years after the — 25 — AEDPA statute of limitations expired and because equitable tolling does not apply. — 26 — A. Statutory Tolling — 27 — In assessing the start date for the limitations period under § 2244(d)(1), the — 28 — Magistrate Judge determined that the statute of limitations for Petitioner’s habeas petition — 1 — began to run on March 20, 2015. The Court agrees. — 2 — As the Magistrate Judge noted, by pleading guilty, Petitioner waived his right to a — 3 — direct appeal. (Doc. 23 at 8). He timely filed his Notice of Post-Conviction Relief on April — 4 — 5, 2013. (Doc. 11 at 31). Therefore, the one-year limitations period was immediately — 5 — subject to statutory tolling. 28 U.S.C. § 2244 (d)(2); see Lott v. Mueller, 304 F.3d 918 , 921 — 6 — (9th Cir. 2002) (noting that under AEDPA, “a prisoner is entitled to tolling for the pendency — 7 — of a ‘properly filed application for State post-conviction or other collateral review with — 8 — respect to the pertinent judgment or claim’” (quoting 28 U.S.C. § 2244 (d)(2))); see also — 9 — Isley v. Ariz. Dep’t of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004) (stating that in Arizona, — 10 — post-conviction review is pending once a notice of post-conviction relief is properly filed). — 11 — The Maricopa County Superior Court dismissed his petition on the merits on January 12, — 12 — 2015. (Id. at 95–96). Petitioner was given an additional month to file his petition for — 13 — review with the Arizona Court of Appeals, but failed to do so by the March 19, 2015, — 14 — deadline. (Doc. 23 at 12). Accordingly, the AEDPA limitations period began to run on — 15 — March 20, 2015, the day the superior court’s judgment became final. This limitations — 16 — period continued uninterrupted until it expired one year later, on March 21, 2016. — 17 — Although Petitioner filed a Petition for Special Action Relief on May 6, 2015 (Doc. — 18 — 11 at 103), these petitions are considered petitions for writs of mandate, which do not toll — 19 — the limitations period. See Ariz. R.P. Special Actions 1(a); Arizona v. Washington, — 20 — 434 U.S. 497 , 501 n.6 (1978); Hardiman v. Galaza, 58 F. App’x 708, 710 (9th Cir. 2003). — 21 — The Arizona Court of Appeals declined to exercise jurisdiction over the petition on May 8, — 22 — 2015. (Doc. 11 at 127). Petitioner’s second Notice of Post-Conviction Relief filed on — 23 — April 3, 2015 (Doc. 12 at 3), was untimely and therefore did not toll the limitations period. — 24 — See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (recognizing that if a post-conviction — 25 — relief petition is untimely under state law, the federal limitations period would not be — 26 — tolled); Allen v. Siebert, 552 U.S. 3, 7 (2007) (finding that if a state post-conviction relief — 27 — petition is rejected as untimely, it was not “properly filed” and does not toll the AEDPA — 28 — limitations period). Likewise, Petitioner’s third Notice of Post-Conviction Relief filed on — 1 — January 26, 2016 (Doc. 12 at 123), was deemed untimely and did not toll the limitations — 2 — period. — 3 — Petitioner asserts that the date on which he discovered his federal constitutional — 4 — claim, March 31, 2015, should be operative as commencing the statute of limitations under — 5 — 28 U.S.C. § 2244 (d)(1)(D) (“the date on which the factual predicate of the claim or claims — 6 — presented could have been discovered through the exercise of due diligence”). Thus, in his — 7 — view, absent any further tolling, AEDPA’s statute of limitations expired on April 1, 2016. — 8 — As the Magistrate Judge noted, Petitioner knew or should have known about the “factual — 9 — predicate of the claim” (i.e., that his indictment did not include the actual identity of any — 10 — of the child victims) as early as April 2011. (Doc. 23 at 10). What Petitioner learned on — 11 — March 31, 2015, was a potential legal argument underlying his claim, i.e., that he could — 12 — attack his conviction for a legally insufficient indictment. This does not invoke — 13 — § 2244(d)(1)(D). But assuming § 2244(d)(1)(D) applies, it would merely delay the — 14 — expiration of the statute of limitations by eleven days. It does not change the untimeliness — 15 — of his second and third Notices of Post-Conviction Relief, both of which did not toll the — 16 — statute of limitations. — 17 — Petitioner did not file his federal habeas petition until December 3, 2018, which was — 18 — more than two years after the March 21, 2016, expiration of the limitations period. — 19 — Accordingly, absent equitable tolling or an exception, the Petition is untimely. — 20 — B. Equitable Tolling — 21 — The Court also agrees with the Magistrate Judge that Petitioner is not entitled to — 22 — equitable tolling. In his Objection, Petitioner asserts that he is entitled to equitable tolling — 23 — due to infirmities in the state post-conviction procedures. (Doc. 26 at 4). — 24 — AEDPA’s statute of limitations is subject to equitable tolling under limited — 25 — circumstances. Holland v. Florida, 560 U.S. 631 , 648–49 (2010). For equitable tolling to — 26 — apply, a petitioner must show “‘(1) that he has been pursuing his rights diligently, and — 27 — (2) that some extraordinary circumstance stood in his way’ and prevented” him from timely — 28 — filing the petition. Id. at 649 (quoting Pace, 544 U.S. at 418 ). A petitioner must exercise — 1 — “reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and — 2 — quotations omitted). Equitable tolling is applied sparingly, as reflected by the — 3 — “extraordinary circumstances” requirement, and is unavailable in most cases. Waldron4 Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Miranda v. Castro, 292 F.3d 5 1063, 1066 (9th Cir. 2002) (stating that “the threshold necessary to trigger equitable tolling — 6 — [under AEPDA] is very high, lest the exceptions swallow the rule” (alteration in original) — 7 — (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). Some external — 8 — force must cause the untimeliness, rather than petitioner’s own “oversight, miscalculation — 9 — or negligence.” Waldron-Ramsey, 556 F.3d at 1011 (quoting Harris v. Carter, 515 F.3d 10 1051, 1055 (9th Cir. 2008)). A petitioner “bears the burden of showing that equitable — 11 — tolling is appropriate” in his case. Espinoza-Matthews v. California, 432 F.3d 1021 , 1026 — 12 — (9th Cir. 2005) (quoting Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005)). — 13 — Petitioner cannot establish that extraordinary circumstances prevented him from — 14 — timely filing his Petition. He points to his diligence in trying to have his “late-discovered” — 15 — claim heard in state court and that “there exists no clear path for meaningful review” of his — 16 — late-discovered claim. (Doc. 26 at 4). — 17 — This series of events does not establish extraordinary circumstances sufficient to toll — 18 — the limitations period. Petitioner’s own failure to timely file his petition and the inadequacy — 19 — of the state post-conviction system do not constitute extraordinary circumstances that — 20 — would toll the limitations period. See Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) — 21 — (stating that equitable tolling is only available “when extraordinary circumstances beyond — 22 — a prisoner’s control make it impossible to file a petition on time and the extraordinary — 23 — circumstances were the cause of [the petition’s] untimeliness” (emphases in original) — 24 — (quoting Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012))). The Court notes that — 25 — Petitioner discovered his legal claim while AEDPA’s statute of limitations was still — 26 — running, but he failed to file a federal habeas petition before the deadline. Moreover, a pro — 27 — se petitioner’s ignorance of the law is not an extraordinary circumstance warranting — 28 — equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Courts have — 1 — also generally found that “difficulties attendant on prison life . . . do not by themselves — 2 — qualify as extraordinary circumstances.” See, e.g., Corrigan v. Barbery, 371 F. Supp. 2d 3 325, 330 (W.D.N.Y. 2005). Petitioner’s Objection that he is entitled to equitable tolling is — 4 — therefore overruled. Having failed to show that he is entitled to equitable tolling, — 5 — Petitioner’s federal habeas petition is untimely. — 6 — Accordingly, the Court agrees with the Magistrate Judge and finds that the — 7 — limitations period for Petitioner to file his habeas petition expired on March 21, 2016. — 8 — C. Actual Innocence Exception & Merits Arguments — 9 — Petitioner’s third objection reiterates many of the merits-based arguments he — 10 — advances in his Petition. The Magistrate Judge, however, did not reach the merits of — 11 — Petitioner’s claims because she found the Petition was untimely. (Doc. 23 at 18). Whether — 12 — a federal habeas petition is time-barred must be resolved before considering other — 13 — procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920 , — 14 — 921–22 (9th Cir. 2002). Moreover, what Petitioner characterizes as the Magistrate Judge’s — 15 — analysis of the “merits” was actually the Magistrate Judge’s analysis of the “actual — 16 — innocence” exception to AEDPA’s one-year statute of limitations. — 17 — Petitioner did not raise an actual innocence argument in his Petition. Rather, in a — 18 — single line in the conclusion to his Points and Authorities in Support of Traverse, Petitioner — 19 — used the phrase “innocent-of-conduct-charged.” (Doc. 21 at 6). In other words, Petitioner — 20 — claims that because his charging document was legally insufficient, he is innocent of that — 21 — conduct. He states that convicting “thousands” of individuals for dangerous crimes against — 22 — children under indictments that “never named an authenticated ‘actual minor’ victim” — 23 — amounts to “kidnapping and incarcerating innocent-of-conduct charged individuals.” — 24 — (Doc. 21 at 6). This is not a claim for actual innocence. Petitioner does not attempt to — 25 — satisfy the high burden of demonstrating actual innocence, which requires persuading the — 26 — district court that “in light of . . . new evidence, no juror, acting reasonably, would have — 27 — voted to find him guilty beyond a reasonable doubt.” McQuiggin v. Perkins, 569 U.S. 383 , — 28 — 386 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). — 1 — The Court agrees with the Magistrate Judge that Petitioner’s Petition is untimely — 2 — and that he has not made a claim for actual innocence that would justify application of an — 3 — exception to the time bar. Because his Petition is untimely, any merits-based arguments in — 4 — his Petition and Objection are overruled. — 5 — D. Evidentiary Hearing — 6 — Petitioner objects to the Magistrate Judge’s recommendation that the Court should — 7 — not allow an evidentiary hearing. (Doc. 26 at 12; Doc. 23 at 18). Petitioner’s sole basis — 8 — for objecting is that “the Magistrate failed” to conduct a “correct federal analysis.” (Doc. — 9 — 26 at 12). But Petitioner fails to identify any facts or evidence that could be adduced at an — 10 — evidentiary hearing that the Court is missing in assessing his claim. The purpose of an — 11 — evidentiary hearing is to determine issues of fact, not reassess issues of law. See Townsend — 12 — v. Sain, 372 U.S. 293, 309 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, — 13 — 504 U.S. 1 (1992). The Court has already determined that Petitioner’s claim is untimely — 14 — as a matter of law. Because the facts are not in dispute, it is unnecessary to hold a hearing — 15 — here. Petitioner’s Objection is overruled. — 16 — IV. Conclusion — 17 — Based on the foregoing, — 18 — IT IS ORDERED that Magistrate Judge Fine’s R&R (Doc. 23) is accepted and — 19 — adopted. — 20 — IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant — 21 — to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice. — 22 — IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing — 23 — Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis — 24 — on appeal are denied because dismissal of the Petition is justified by a plain procedural bar — 25 — and jurists of reason would not find the procedural ruling debatable. — 26 — … — 27 — … — 28 — 2 IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. Dated this 19th day of April, 2021. 6 Lo ——__f 7 Ax ope ~ Lap □□ 8 United States Dict fadge — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -9-