Thomas 076784 v. Shinn

1 WO [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, REPORT AND RECOMMENDATION 11 v. 12 David Shinn, et al., 13 Respondents. [14] 15 TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT COURT 16 JUDGE: 17 On July 15, 2021, Petitioner Arthur Truman Thomas., who is confined in the 18 Arizona State Prison, Eyman/Cook Unit, Florence, Arizona, filed a pro se Petition for Writ 19 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (hereinafter “habeas petition”)1 (Doc. 1.) 20 On September 10, 2021, Respondents filed a Limited Answer. (Doc. 8.) On September 21 29, 2021, Petitioner filed a Reply. (Doc. 9.) 22 STATE PROCEDURAL BACKGROUND 23 On October 19, 2007, Petitioner was indicted in the Maricopa County Superior 24 Court, State of Arizona, on five counts of child molestation, class 2 felonies (counts 1, 2, 25 4, 6, 10), one count of furnishing obscene or harmful items to minors, a class 4 felony [26] 1 Petitioner deposited his habeas petition in the prison mailing system on July 15, 2021. 27 That is the operative date of filing, although the motion was not docketed until July 16, 2021. See, Huizar v. Cary, 273 F.3d 1220, 1223 (9th Cir. 2001) (applying “prison mailbox 28 rule” in construing filing date). 1 (count 3), four counts of sexual conduct with a minor, class 2 felonies (counts 5, 7, 11, 12), 2 one count of sexual exploitation of a minor, a class 2 felony (count 8), and three counts of 3 surreptitious photographing, videotaping, filming or digitally recording, class 5 felonies 4 (count 9, 13, 14). (Doc. 8, Exh. B.) On January 30, 2009, Petitioner pleaded guilty 5 pursuant to a plea agreement in which he agreed to plead guilty to counts one, two and five, 6 as amended to attempted child molestation, class 3 felonies and dangerous crimes against 7 children, and count eleven, sexual conduct with a minor under age 15, a class 2 felony and 8 dangerous crime against children. (Id., Exhs., D, E.) The plea agreement contained a 9 stipulation that Petitioner be sentenced to 24 years in prison on count eleven, with lifetime 10 probation on the remaining counts, to follow upon his release from prison on count eleven. 11 (Id., Exh. D.) On May 19, 2009, Petitioner was sentenced consistent with the plea 12 agreement to 24 years in prison on count eleven, to be followed by lifetime probation on 13 counts one, two and five. (Id., Exh. H.) Petitioner thereafter signed a Notice of Rights of 14 Review After Conviction and Procedure, which set forth his right to seek post-conviction 15 relief, the procedure for doing so, and the deadline for filing. (Id., Exh. G.) 16 On August 28, 2020, over ten years later, Petitioner filed a petition for a writ of 17 habeas corpus in state court. (Doc. 8, Exh. J.) Petitioner claimed in his petition that he was 18 “illegally confined and restrained” because he was charged by indictment with violating 19 A.R.S. § 13-604.01, which was “recognized as unconstitutional by the judicial branch of 20 Arizona’s government and repealed in 2008.” (Id. at 2.) On September 30, 2020, the trial 21 court denied relief, finding that “no legal basis exists to grant the requested relief.” (Id., 22 Exh. K.) Petitioner appealed the trial court’s decision to the Arizona Court of Appeals, 23 raising the same issue. (Id., Exhs. L, M, N.) The appellate court affirmed the trial court’s 24 decision in a Memorandum Decision. (Id., Exh. O.) Petitioner filed a petition for review in 25 the Arizona Supreme Court, which was summarily denied on June 30, 2021. (Id., Exhs. P, 26 Q.) 27 On July 15, 2021, Petitioner filed his habeas petition in this Court, in which he raises 28 one issue. Petitioner asserts that he is restrained/confined in violation of the Constitution 1 and laws of the United States and the State of Arizona, as the indictment against Petitioner 2 was unconstitutional and void, rendering the state court without subject matter jurisdiction. 3 Respondents assert that Petitioner’s habeas petition is untimely and that his claim is 4 procedurally defaulted. 5 DISCUSSION 6 I. Statute of Limitations. 7 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides 8 that a one-year statute of limitations period shall apply a petition for a writ of habeas corpus 9 by a person in state custody. See, 18 U.S.C. § 2254 (d)(1). The limitations period runs 10 from the latest of, as is relevant here, the date on which the judgment became final by the 11 conclusion of direct review or the expiration of the time for seeking such review becomes 12 final. 18 U.S.C. § 2254 (d)(1)(A); see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). 13 Petitioner was sentenced on May 19, 2009. Thereafter, Petitioner had 90 days to initiate 14 post-conviction proceedings. See Ariz. R. Crim. P. 32.4(a) (requiring a defendant who 15 pleaded guilty to file notice of an “of-right proceeding” within 90 days after judgment and 16 sentence). Because Petitioner did not initiate post-conviction proceedings, his convictions 17 and sentence became final 90 days later, on August 17, 2009, and the one-year deadline for 18 filing a federal habeas petition began the next day and elapsed on August 18, 2010. See, 19 Summers v. Schiro, 481 F. 3d 710, 711 (9th Cir. 2007). Petitioner filed his habeas petition 20 over 10 years after the statute of limitations had expired. 21 The time that a “properly filed application for State post-conviction or other 22 collateral review with respect to the pertinent judgment or claims is pending shall not be 23 counted toward” the limitations period. 28 U.S.C. § 2244 (d)(2). A state proceeding 24 initiated after the expiration of the statute of limitations does not reset the one-year clock. 25 See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). 26 Petitioner does not dispute the aforementioned procedural facts but asserts that the 27 one-year limitations period may alternatively commence on “the date on which the factual 28 predicate of the claim or claims presented could have been discovered through the exercise 1 of due diligence.” 28 U.S.C. § 2244 (d)(1)(D). Petitioner claims that this statutory section 2 applies in his case. The factual predicate that Petitioner states as the basis for his claim is 3 as follows: the Hon. Judge Richard D. Nicholes’ signed statement which reads “A.R.S. [4] 13-604 is in its entirety was recognized as unconstitutional in 2008 in an 5 unreported Arizona case. The legislature attempted once more to supplant the use of Hannah priors when it enacted A.R.S. 13-702.01 and 13-702.02; [6] however, both of these statutes were also found unconstitutional and were 7 repealed on January 1, 2009.” (Doc. 9 at 2.) [8] 9 Petitioner fails to cite a case or any other published authority in which “the Hon. 10 Judge Richard D. Nicholes’ signed statement” appears. Neither does he provide a date that 11 such alleged statement first appeared in a publication. Thus, Petitioner does not establish a 12 factual predicate, much less the date on which it was discovered, to support his claim. 13 Additionally, even if Petitioner could cite a legal opinion, a legal decision in an unrelated 14 case does not constitute a “factual predicate” of a claim. See Shannon v. Newland, 410 15 F.3d 1083 , 1088-89 (9th Cir. 2005) (rejecting argument that state court decision in a case 16 “unrelated to [the petitioner’s] case” could form the factual predicate’ of a claim under 17 2244(d)(1)(D)). Petitioner fails to establish that the provisions of 28 U.S.C. § 18 2244(d)(1)(D) apply to the circumstances of his case. Thus, Petitioner’s habeas petition, 19 filed over 10 years after his judgment of conviction became final, is untimely under 20 AEDPA’s one-year statute of limitations. 21 The statute of limitations may however be equitably tolled if “(1) the petitioner has 22 diligently pursued his rights, and (2) extraordinary circumstances exist.” United States v. 23 Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (citing Pace v. DiGuglielmo, 544 24 U.S.408, 418 (2005)). The burden of establishing entitlement to equitable tolling is on 25 Petitioner. Pace, 544 U.S. at 418. Equitable tolling is available “only when extraordinary 26 circumstances beyond a prisoner’s control make it impossible to file a petition on time and 27 the extraordinary circumstances were the cause of [the petitioner’s] the untimeliness.” 28 Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010) (emphasis in original) (internal quotes and 1 citation omitted). 2 Petitioner claims that the indictment against him was defective because he was 3 charged under A.R.S. § 13-604.01, and that this statute was found unconstitutional in 2009. 4 (Doc. 9 at 5.) The indictment against Petitioner was returned in 2007, and thus, Petitioner 5 would have been on notice of his claim just two years later. (Doc. 9, Exh. B.) Petitioner 6 did not initiate post-conviction proceedings in state court until 2020. This Court finds that 7 Petitioner has not demonstrated that he acted with due diligence in pursuing his claim or 8 that extraordinary circumstances exists that would entitle him to equitable tolling of the 9 statute of limitations, and thus Petitioner’s habeas petition is untimely without excuse2. 10 CONCLUSION 11 Having determined that Petitioner’s habeas petition is untimely, without excuse, the 12 Court will recommend the petition be denied and dismissed with prejudice. 13 IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of 14 Habeas Corpus (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE; 15 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave 16 to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition 17 is justified by a plain procedural bar and jurists of reason would not find the procedural 18 ruling debatable. 19 This recommendation is not an order that is immediately appealable to the Ninth 20 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 21 Appellate Procedure, should not be filed until entry of the district court’s judgment. The 22 parties shall have fourteen days from the date of service of a copy of this recommendation 23 within which to file specific written objections with the Court. See 28 U.S.C. § 636 (b)(1); 24 Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen 25 days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of 26 Civil Procedure for the United States District Court for the District of Arizona, objections [27] 2 As this Court has determined that Petitioner’s habeas petition is untimely and without 28 excuse, it declines to address Respondents’ additional affirmative defense of procedural default. 1 || to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure 2|| timely to file objections to the Magistrate Judge’s Report and Recommendation may result || in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure || timely to file objections to any factual determinations of the Magistrate Judge will be 6 || considered a waiver of a party’s right to appellate review of the findings of fact in an order 7\| or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 72, 8 || Federal Rules of Civil Procedure. 9 Dated this 30th day of November, 2021. [10] 11 ( -_ ’ 2 Honorable Michelle H. Burns 13 United States Magistrate Judge [28] -6-