1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Wayne B. Bearden, Jr., No. CV-18-02451-PHX-JAT
10 Petitioner, ORDER
11 v.
12 Carla Hacker-Agnew, et al.,
13 Respondents. 14 15 On August 2, 2018, Petitioner Wayne Bearden (“Petitioner”) filed a Petition for 16 Writ of Habeas Corpus (“Petition”). (Doc. 1). On July 17, 2019, the Magistrate Judge 17 issued a Report and Recommendation (“R&R”) recommending that the Petition be 18 denied and dismissed because it is barred by the Anti-Terrorism and Effective Death 19 Penalty Act (“AEDPA”)’s statute of limitations. (Doc. 12). The R&R further 20 recommended that a Certificate of Appealability be denied. (Id. at 9). This Court 21 extended Petitioner’s time to file objections to the R&R until September 6, 2019. (Doc. 22 14). Having not received any timely objections from Petitioner, the Court adopted the 23 Magistrate Judge’s R&R and dismissed the Petition with prejudice on September 20, 24 2019. (Doc. 15). On September 27, 2019, however, the Court unexpectedly received 25 objections to the R&R from Petitioner—dated September 2, 2019 (four days before the 26 September 6 deadline). (Doc. 17). The sudden surfacing of Petitioner’s objections, 27 exactly one week after this Court formally adopted the Magistrate Judge’s R&R (yet over 28 a month since the Magistrate Judge first issued it), suggests that the objections were not 1 timely filed but instead submitted in response to this Court adopting the R&R. 2 Nonetheless, without any clear evidence of back dating, this Court has no basis to 3 challenge the date that Petitioner alleges to have submitted his objections—even if that 4 means assuming prison officials refused to deliver the objections to the Court for nearly 5 four weeks. So, because “[u]nder the ‘mailbox rule,’ a pro se prisoner’s filing of a state 6 habeas petition is deemed filed at the moment the prisoner delivers it to prison authorities 7 for forwarding to the clerk of the court,” this Court must reluctantly accept Petitioner’s 8 objections as timely filed on September 2, 2019. See Stillman v. LaMarque, 319 F.3d 9 1199, 1201 (9th Cir. 2003). Accordingly, pursuant to Federal Rule of Civil Procedure 10 60(b), this Court must vacate its prior judgment dismissing the Petition with prejudice 11 and evaluate Petitioner’s objections. 12 I. REVIEW OF AN R&R 13 This Court “may accept, reject, or modify, in whole or in part, the findings or 14 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 15 the district judge must review the magistrate judge’s findings and recommendations de 16 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 17 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not 18 required to conduct “any review at all . . . of any issue that is not the subject of an 19 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) 20 (“[T]he court shall make a de novo determination of those portions of the [report and 21 recommendation] to which objection is made.”). As discussed above, Petitioner filed 22 objections to the R&R, (Doc. 17), and the Court will review those objections de novo. 23 II. FACTUAL AND PROCEDURAL BACKGROUND 24 In January 2016, the Maricopa County Superior Court entered judgment 25 convicting Petitioner of assisting a criminal street gang, sale or transfer or offer to sale or 26 transfer narcotic drugs, possession of narcotic drugs, sale or transportation of marijuana, 27 possession of marijuana for sale, and misconduct involving a weapon. (Doc. 1 at 1–2). 28 Per the plea agreement, the trial court sentenced Petitioner to twelve years in prison along 1 with fines and community service. (Id. at 2). On February 16, 2017, the trial court 2 dismissed Petitioner’s petition for post-conviction relief. (Id. at 16). On October 17, 3 2017, the Arizona Court of Appeals denied Petitioner’s motion for review because 4 Petitioner failed to file it within thirty days of the trial court’s dismissal. (Id. at 16). On 5 August 2, 2018, Petitioner initiated this federal habeas proceeding. (Id. at 1). The Court 6 required Respondents to answer the Petition. (Doc. 7). Respondents filed their Answer on 7 February 6, 2019, claiming that the Petition is barred by AEDPA’s statute of limitations. 8 (Doc. 10). Petitioner filed a Reply on February 22, 2019. (Doc. 11). A Magistrate Judge 9 issued an R&R to the Court on July 17, 2019, recommending that the Court deny the 10 Petition with prejudice because AEDPA’s statute of limitations had expired on March 23, 11 2018 (one year after Petitioner’s deadline to file a petition for review in the Arizona 12 Court of Appeals). (Doc. 12). This Court extended Petitioner’s time to file objections to 13 the R&R until September 6, 2019 (Doc. 14) and, accordingly, will review Petitioner’s 14 objections (Doc. 17), dated September 2, 2019. 15 III. R&R 16 The R&R recommends that the Petition be denied as barred by the AEDPA’s 17 statute of limitations. (Doc. 12 at 3–8). 18 As explained by the Magistrate Judge, the AEDPA, 28 U.S.C. § 2244(d), provides 19 a one-year statute of limitations for state prisoners to file a petition for writ of habeas 20 corpus in federal court. (Id. at 2). The Magistrate Judge determined that, according to 28 21 U.S.C. § 2244(d)(1)(A), Petitioner’s one-year period began on March 24, 2017: the day 22 after his deadline to file a petition for review in the Arizona Court of Appeals. (Id. at 3– 23 5). She thus found that Petitioner’s one-year period expired on March 23, 2018, rendering 24 his Petition untimely because he did not file it until August 2, 2018. (Id. at 5–6). 25 Furthermore, she concluded that statutory tolling could not extend the filing period 26 because “Petitioner did not file a PCR proceeding following dismissal of his of-right PCR 27 proceeding.” (Id. at 6). She also rejected equitable tolling because Petitioner failed to 28 meet his burden of showing that “extraordinary circumstances” precluded him from filing 1 the Petition on time. (Id.). Finally, the Magistrate Judge declined to excuse Petitioner’s 2 late filing based on the “actual innocence gateway” because he had not raised “new 3 reliable evidence” that, when taken by a reasonable juror, would exculpate him of the 4 crimes alleged. (Id. at 7). For these reasons, the Magistrate Judge recommended that this 5 Court dismiss the Petition. (Id. at 8). 6 IV. PETITIONER’S OBJECTIONS 7 Petitioner objects to the Magistrate Judge’s R&R—but not on any of the grounds 8 actually raised in it. (Compare Doc. 17, with Doc. 12). Rather, Petitioner raises three 9 unrelated challenges, claiming that: (1) the prosecution failed to provide the trial court 10 with facts establishing subject matter jurisdiction; (2) the prosecutors violated their oath 11 of office and Petitioner’s due process rights by failing to prove subject matter 12 jurisdiction; and (3) the prosecution relied on “unconstitutional” statutes that lacked 13 “jurisdictional identity and constitutional authority.” (Doc. 17 at 4–9). Because Petitioner 14 does not even attempt to refute the Magistrate Judge’s central finding that the statute of 15 limitations bars his Petition altogether, this Court will accept that finding as correct. See 16 28 U.S.C.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Wayne B. Bearden, Jr., No. CV-18-02451-PHX-JAT
10 Petitioner, ORDER
11 v.
12 Carla Hacker-Agnew, et al.,
13 Respondents. 14 15 On August 2, 2018, Petitioner Wayne Bearden (“Petitioner”) filed a Petition for 16 Writ of Habeas Corpus (“Petition”). (Doc. 1). On July 17, 2019, the Magistrate Judge 17 issued a Report and Recommendation (“R&R”) recommending that the Petition be 18 denied and dismissed because it is barred by the Anti-Terrorism and Effective Death 19 Penalty Act (“AEDPA”)’s statute of limitations. (Doc. 12). The R&R further 20 recommended that a Certificate of Appealability be denied. (Id. at 9). This Court 21 extended Petitioner’s time to file objections to the R&R until September 6, 2019. (Doc. 22 14). Having not received any timely objections from Petitioner, the Court adopted the 23 Magistrate Judge’s R&R and dismissed the Petition with prejudice on September 20, 24 2019. (Doc. 15). On September 27, 2019, however, the Court unexpectedly received 25 objections to the R&R from Petitioner—dated September 2, 2019 (four days before the 26 September 6 deadline). (Doc. 17). The sudden surfacing of Petitioner’s objections, 27 exactly one week after this Court formally adopted the Magistrate Judge’s R&R (yet over 28 a month since the Magistrate Judge first issued it), suggests that the objections were not 1 timely filed but instead submitted in response to this Court adopting the R&R. 2 Nonetheless, without any clear evidence of back dating, this Court has no basis to 3 challenge the date that Petitioner alleges to have submitted his objections—even if that 4 means assuming prison officials refused to deliver the objections to the Court for nearly 5 four weeks. So, because “[u]nder the ‘mailbox rule,’ a pro se prisoner’s filing of a state 6 habeas petition is deemed filed at the moment the prisoner delivers it to prison authorities 7 for forwarding to the clerk of the court,” this Court must reluctantly accept Petitioner’s 8 objections as timely filed on September 2, 2019. See Stillman v. LaMarque, 319 F.3d 9 1199, 1201 (9th Cir. 2003). Accordingly, pursuant to Federal Rule of Civil Procedure 10 60(b), this Court must vacate its prior judgment dismissing the Petition with prejudice 11 and evaluate Petitioner’s objections. 12 I. REVIEW OF AN R&R 13 This Court “may accept, reject, or modify, in whole or in part, the findings or 14 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 15 the district judge must review the magistrate judge’s findings and recommendations de 16 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 17 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not 18 required to conduct “any review at all . . . of any issue that is not the subject of an 19 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) 20 (“[T]he court shall make a de novo determination of those portions of the [report and 21 recommendation] to which objection is made.”). As discussed above, Petitioner filed 22 objections to the R&R, (Doc. 17), and the Court will review those objections de novo. 23 II. FACTUAL AND PROCEDURAL BACKGROUND 24 In January 2016, the Maricopa County Superior Court entered judgment 25 convicting Petitioner of assisting a criminal street gang, sale or transfer or offer to sale or 26 transfer narcotic drugs, possession of narcotic drugs, sale or transportation of marijuana, 27 possession of marijuana for sale, and misconduct involving a weapon. (Doc. 1 at 1–2). 28 Per the plea agreement, the trial court sentenced Petitioner to twelve years in prison along 1 with fines and community service. (Id. at 2). On February 16, 2017, the trial court 2 dismissed Petitioner’s petition for post-conviction relief. (Id. at 16). On October 17, 3 2017, the Arizona Court of Appeals denied Petitioner’s motion for review because 4 Petitioner failed to file it within thirty days of the trial court’s dismissal. (Id. at 16). On 5 August 2, 2018, Petitioner initiated this federal habeas proceeding. (Id. at 1). The Court 6 required Respondents to answer the Petition. (Doc. 7). Respondents filed their Answer on 7 February 6, 2019, claiming that the Petition is barred by AEDPA’s statute of limitations. 8 (Doc. 10). Petitioner filed a Reply on February 22, 2019. (Doc. 11). A Magistrate Judge 9 issued an R&R to the Court on July 17, 2019, recommending that the Court deny the 10 Petition with prejudice because AEDPA’s statute of limitations had expired on March 23, 11 2018 (one year after Petitioner’s deadline to file a petition for review in the Arizona 12 Court of Appeals). (Doc. 12). This Court extended Petitioner’s time to file objections to 13 the R&R until September 6, 2019 (Doc. 14) and, accordingly, will review Petitioner’s 14 objections (Doc. 17), dated September 2, 2019. 15 III. R&R 16 The R&R recommends that the Petition be denied as barred by the AEDPA’s 17 statute of limitations. (Doc. 12 at 3–8). 18 As explained by the Magistrate Judge, the AEDPA, 28 U.S.C. § 2244(d), provides 19 a one-year statute of limitations for state prisoners to file a petition for writ of habeas 20 corpus in federal court. (Id. at 2). The Magistrate Judge determined that, according to 28 21 U.S.C. § 2244(d)(1)(A), Petitioner’s one-year period began on March 24, 2017: the day 22 after his deadline to file a petition for review in the Arizona Court of Appeals. (Id. at 3– 23 5). She thus found that Petitioner’s one-year period expired on March 23, 2018, rendering 24 his Petition untimely because he did not file it until August 2, 2018. (Id. at 5–6). 25 Furthermore, she concluded that statutory tolling could not extend the filing period 26 because “Petitioner did not file a PCR proceeding following dismissal of his of-right PCR 27 proceeding.” (Id. at 6). She also rejected equitable tolling because Petitioner failed to 28 meet his burden of showing that “extraordinary circumstances” precluded him from filing 1 the Petition on time. (Id.). Finally, the Magistrate Judge declined to excuse Petitioner’s 2 late filing based on the “actual innocence gateway” because he had not raised “new 3 reliable evidence” that, when taken by a reasonable juror, would exculpate him of the 4 crimes alleged. (Id. at 7). For these reasons, the Magistrate Judge recommended that this 5 Court dismiss the Petition. (Id. at 8). 6 IV. PETITIONER’S OBJECTIONS 7 Petitioner objects to the Magistrate Judge’s R&R—but not on any of the grounds 8 actually raised in it. (Compare Doc. 17, with Doc. 12). Rather, Petitioner raises three 9 unrelated challenges, claiming that: (1) the prosecution failed to provide the trial court 10 with facts establishing subject matter jurisdiction; (2) the prosecutors violated their oath 11 of office and Petitioner’s due process rights by failing to prove subject matter 12 jurisdiction; and (3) the prosecution relied on “unconstitutional” statutes that lacked 13 “jurisdictional identity and constitutional authority.” (Doc. 17 at 4–9). Because Petitioner 14 does not even attempt to refute the Magistrate Judge’s central finding that the statute of 15 limitations bars his Petition altogether, this Court will accept that finding as correct. See 16 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination 17 [only] of those portions of the report or specified findings or recommendations to which 18 objection is made.”); Thomas, 474 U.S. at 149 (holding that district courts do not have to 19 review any issue in a magistrate’s recommendation “that is not the subject of an 20 objection”). So, accepting—as the Magistrate Judge found—that the statute of limitations 21 procedurally bars the Petition, this Court will refrain from reviewing the Petition’s 22 substantive claims. See 28 U.S.C. § 2244(d)(1). 23 Moreover, potential “equitable exceptions” to the AEDPA’s statute of 24 limitations—“such as when a petitioner demonstrates diligence and extraordinary 25 circumstances, or actual innocence”—cannot provide Petitioner relief because those 26 exceptions do not include “the state court’s alleged lack of subject matter jurisdiction.” 27 Tucker v. Ryan, No. CV-13-00577-PHX-JAT, 2014 WL 1329293, at *5 (D. Ariz. 2014) 28 (citing Lee v. Lampart, 653 F.3d 929, 933–34 (9th Cir. 2011)). Hence, this Court must || accept, once again, the R&R’s conclusion that the AEDPA’s statute of limitations bars || the Petition. 3 V. Conclusion 4 Based on the foregoing, 5 IT IS ORDERED that pursuant to Federal Rule of Civil Procedure 60(b) the prior 6|| Order (Doc. 15) and Judgment (Doc. 16) are vacated so the Court can consider the 7|| objections (Doc. 17) as timely filed. 8 IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 12) is || accepted and adopted. The objections (Doc. 17) are overruled. The Petition is denied with 10 || prejudice, and the Clerk of the Court shall enter judgment accordingly. 11 IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing || Section 2254 Cases, in the event that Petitioner files an appeal, the Court denies issuance 13 || of a certificate of appealability because dismissal of the Petition is based on a plain procedural bar, and jurists of reason would not find this Court’s procedural ruling 15 || debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 16 Dated this 7th day of November, 2019. 17 18 : 19 James A. CO 0 Senior United States District Judge 21 22 23 24 25 26 27 28
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