5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7
8 Everett Gregory Casteel, No. CV 23-01516-PHX-GMS (MTM) 9 Petitioner, REPORT AND RECOMMENDATION 10 v. 11 Ryan Thornell, et al., 12 Respondents. 13 14 15 TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT 16 JUDGE: 17 Petitioner Everett Gregory Casteel has filed a Petition for a Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2254. (Doc. 1.) 19 I. SUMMARY OF CONCLUSION 20 Petitioner was convicted following a bench trial in Maricopa County Superior 21 Court, case #CR 2007-116559, of two counts of possession of narcotic drugs for sale, and 22 one count of possession of dangerous drugs for sale. In his habeas petition, Petitioner raises 23 one ground for relief: his due process rights were violated by Respondents’ incorrect 24 calculation of his sentence. However, the petition is untimely by over 13 years, and 25 Petitioner is not entitled to statutory or equitable tolling. Accordingly, the Court will 26 recommend that the Petition for Writ of Habeas Corpus be denied and dismissed with 27 prejudice. 28 1 II. BACKGROUND 2 A. Conviction and Sentencing 3 On August 21, 2007, Petitioner was found guilty of two counts of possession of 4 narcotic drugs for sale (Counts 1 and 2) and one count of possession of dangerous drugs 5 for sale (Count 3). (Doc. 10-1 at 12; Exh. C.) On October 19, 2007, Petitioner was 6 sentenced to three concurrent 15.75-year terms, to be served consecutively to a 2.5-year 7 term for a probation violation in a separate case. (Doc. 10-1 at 16, 21; Exhs. D, E.) 8 B. Direct Appeal 9 On April 22, 2008, Petitioner filed an opening brief in the Arizona Court of Appeals 10 raising three claims. (Doc. 10-1 at 25-45; Exh. G.) On October 23, 2008, the court issued 11 a Memorandum Decision affirming Petitioner’s convictions and sentences. (Doc. 10-2 at 12 57-67; Exh. J); State v. Casteel, 2008 WL 4814482, at *1 (Ariz. Ct. App. 2008). Petitioner 13 did not appeal to the Arizona Supreme Court. (Doc. 10-3 at 83-90; Exh. EE.) 14 C. Post-Conviction Relief Proceedings 15 On February 10, 2020, Petitioner filed a motion for presentence credit, challenging 16 his sentence. (Doc. 10-2 at 69; Exh. K.) On December 14, 2021, the PCR court rejected the 17 February motion and a subsequent motion because there was no proof that Petitioner served 18 copies on the State. (Doc. 10-2 at 72, 74; Exhs. L, M.) Petitioner filed numerous other PCR 19 motions over the following three years challenging his sentence; however, all were denied. 20 (Doc. 10-2 at 76, 86, 90; Doc. 10-3 at 2, 9; Exhs. N, P, R, S, U.) 21 Petitioner did not seek review of the denial of any of his motions in the Arizona 22 Court of Appeals. (Doc. 10-3 at 83-90; Exh. EE.) 23 III. PETITION FOR WRIT OF HABEAS CORPUS 24 On July 31, 2023, Petitioner initiated habeas corpus proceedings pursuant to 28 25 U.S.C. § 2254. (Doc. 1.) Petitioner raises one ground for relief. (Id. at 2.) In Ground One, 26 Petitioner alleges his due process rights were violated by Respondents’ incorrect 27 calculation of his sentence. (Id.) 28 On March 1, 2024, Respondents filed a Limited Answer. (Doc. 10.) On April 1, 1 2024, Petitioner filed a Reply. (Doc. 11.) 2 IV. STATUTE OF LIMITATIONS 3 A. Time Calculation 4 The AEDPA imposes a one-year limitation period, which begins to run, for purposes 5 relevant here from “the date on which the factual predicate of the claim or claims could 6 have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). 7 The term “factual predicate” in 28 U.S.C. § 2244(d)(1)(D) refers to the facts underlying 8 the claim, not the legal significance of those facts. Hasan v. Galanza, 254 F.3d 1150, 1154 9 n.3 (9th Cir. 2001) (petitioner need not “understand the legal significance” of the facts, 10 rather than “simply the facts themselves,” before the “due diligence (and hence the 11 limitations) clock start[s] ticking”). 12 On October 19, 2007, Petitioner was present for his sentencing hearing during which 13 the facts underlying his claims became apparent. (Doc. 10-1 at 16, 21; Exhs. D, E.) 14 Petitioner was sentenced to three concurrent 15.75-year terms, to be served consecutively 15 to a 2.5-year term for a probation violation in a separate case. (Id.) Petitioner appealed, 16 raising three issues unrelated to any time miscalculation (Doc. 10-1 at 25-45; Exh G), and 17 on October 23, 2008, the court issued a Memorandum Decision affirming Petitioner’s 18 convictions and sentences. (Doc. 10-2 at 57-67; Exh. J.) Petitioner’s direct appeal, therefore 19 concluded on November 22, 2008, after the expiration of the 30-day period to file a petition 20 for review to the Arizona Supreme Court. Ariz. R. Crim. P. 31.21(b)(2)(A). The habeas 21 petition was due one year later, November 23, 2009. Having filed his habeas petition on 22 July 31, 2023, Petitioner was untimely by over 13 years, absent statutory or equitable 23 tolling. 24 However, Petitioner argues he “could not in the exercise of due diligence … 25 discovered that his release date is a date other than his release date of [September 7, 2022].” 26 (Doc. 1 at 11.) Petitioner’s argument implies that he discovered the factual predicate of his 27 claim on September 7, 2022, and that is when the one-year statute of limitations of AEDPA 28 should commence. Additionally, Petitioner claims that under Ariz. Rev. Stat. § 13-116, he 1 should not be serving a flat-time sentence, that all 4 of his sentences should have been 2 concurrent, and the maximum sentence he could have received was 10 years. Id. However, 3 this claim presents a non-cognizable issue of state law. 1 4 The Court finds Petitioner’s argument for when he discovered the factual predicate 5 of his claim unpersuasive. At his sentencing hearing on October 19, 2007, Petitioner 6 learned the factual predicate of any potential sentence miscalculation (i.e., the Arizona 7 statutes that he was sentenced under, the sentence calculations, and a calculatable date of 8 release). (Doc 10-1 at 16, 21; Exhs. D, E.) Petitioner’s new claim of a potential sentence 9 miscalculation is a newly discovered legal theory, not a newly discovered factual predicate. 10 While it is true Petitioner may have discovered this new legal theory on September 7, 2022, 11 the discovery of a new legal theory is not what starts AEDPA’s one-year statute of 12 limitations. The discovery of the factual predicate underlying the theory starts AEDPA’s 13 one-year statute of limitations. Here, the Court finds the factual predicate underlying this 14 sentence miscalculation theory was discoverable on October 19, 2007, at Petitioner’s 15 sentencing hearing. See Hasan, 254 F.3d at 1154 n.3; Owens v. Boyd, 235 F.3d 356, 359 16 (7th Cir. 2000) (rejecting prisoner’s assertion that the one-year period begins when he 17 “actually understands what legal theories are available”) (emphasis in original). See also 18 McCutcheon v. Arizona, 2016 WL 8257606, at *4 (D. Ariz. 2016), report and 19 recommendation adopted, 2017 WL 610480 (D. Ariz. 2017) (dismissing a habeas corpus 20 petition as untimely because arguing for a “different interpretation of Arizona law” is not 21 “a newly discovered factual predicate” in accordance with 28 U.S.C.
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5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7
8 Everett Gregory Casteel, No. CV 23-01516-PHX-GMS (MTM) 9 Petitioner, REPORT AND RECOMMENDATION 10 v. 11 Ryan Thornell, et al., 12 Respondents. 13 14 15 TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT 16 JUDGE: 17 Petitioner Everett Gregory Casteel has filed a Petition for a Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2254. (Doc. 1.) 19 I. SUMMARY OF CONCLUSION 20 Petitioner was convicted following a bench trial in Maricopa County Superior 21 Court, case #CR 2007-116559, of two counts of possession of narcotic drugs for sale, and 22 one count of possession of dangerous drugs for sale. In his habeas petition, Petitioner raises 23 one ground for relief: his due process rights were violated by Respondents’ incorrect 24 calculation of his sentence. However, the petition is untimely by over 13 years, and 25 Petitioner is not entitled to statutory or equitable tolling. Accordingly, the Court will 26 recommend that the Petition for Writ of Habeas Corpus be denied and dismissed with 27 prejudice. 28 1 II. BACKGROUND 2 A. Conviction and Sentencing 3 On August 21, 2007, Petitioner was found guilty of two counts of possession of 4 narcotic drugs for sale (Counts 1 and 2) and one count of possession of dangerous drugs 5 for sale (Count 3). (Doc. 10-1 at 12; Exh. C.) On October 19, 2007, Petitioner was 6 sentenced to three concurrent 15.75-year terms, to be served consecutively to a 2.5-year 7 term for a probation violation in a separate case. (Doc. 10-1 at 16, 21; Exhs. D, E.) 8 B. Direct Appeal 9 On April 22, 2008, Petitioner filed an opening brief in the Arizona Court of Appeals 10 raising three claims. (Doc. 10-1 at 25-45; Exh. G.) On October 23, 2008, the court issued 11 a Memorandum Decision affirming Petitioner’s convictions and sentences. (Doc. 10-2 at 12 57-67; Exh. J); State v. Casteel, 2008 WL 4814482, at *1 (Ariz. Ct. App. 2008). Petitioner 13 did not appeal to the Arizona Supreme Court. (Doc. 10-3 at 83-90; Exh. EE.) 14 C. Post-Conviction Relief Proceedings 15 On February 10, 2020, Petitioner filed a motion for presentence credit, challenging 16 his sentence. (Doc. 10-2 at 69; Exh. K.) On December 14, 2021, the PCR court rejected the 17 February motion and a subsequent motion because there was no proof that Petitioner served 18 copies on the State. (Doc. 10-2 at 72, 74; Exhs. L, M.) Petitioner filed numerous other PCR 19 motions over the following three years challenging his sentence; however, all were denied. 20 (Doc. 10-2 at 76, 86, 90; Doc. 10-3 at 2, 9; Exhs. N, P, R, S, U.) 21 Petitioner did not seek review of the denial of any of his motions in the Arizona 22 Court of Appeals. (Doc. 10-3 at 83-90; Exh. EE.) 23 III. PETITION FOR WRIT OF HABEAS CORPUS 24 On July 31, 2023, Petitioner initiated habeas corpus proceedings pursuant to 28 25 U.S.C. § 2254. (Doc. 1.) Petitioner raises one ground for relief. (Id. at 2.) In Ground One, 26 Petitioner alleges his due process rights were violated by Respondents’ incorrect 27 calculation of his sentence. (Id.) 28 On March 1, 2024, Respondents filed a Limited Answer. (Doc. 10.) On April 1, 1 2024, Petitioner filed a Reply. (Doc. 11.) 2 IV. STATUTE OF LIMITATIONS 3 A. Time Calculation 4 The AEDPA imposes a one-year limitation period, which begins to run, for purposes 5 relevant here from “the date on which the factual predicate of the claim or claims could 6 have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). 7 The term “factual predicate” in 28 U.S.C. § 2244(d)(1)(D) refers to the facts underlying 8 the claim, not the legal significance of those facts. Hasan v. Galanza, 254 F.3d 1150, 1154 9 n.3 (9th Cir. 2001) (petitioner need not “understand the legal significance” of the facts, 10 rather than “simply the facts themselves,” before the “due diligence (and hence the 11 limitations) clock start[s] ticking”). 12 On October 19, 2007, Petitioner was present for his sentencing hearing during which 13 the facts underlying his claims became apparent. (Doc. 10-1 at 16, 21; Exhs. D, E.) 14 Petitioner was sentenced to three concurrent 15.75-year terms, to be served consecutively 15 to a 2.5-year term for a probation violation in a separate case. (Id.) Petitioner appealed, 16 raising three issues unrelated to any time miscalculation (Doc. 10-1 at 25-45; Exh G), and 17 on October 23, 2008, the court issued a Memorandum Decision affirming Petitioner’s 18 convictions and sentences. (Doc. 10-2 at 57-67; Exh. J.) Petitioner’s direct appeal, therefore 19 concluded on November 22, 2008, after the expiration of the 30-day period to file a petition 20 for review to the Arizona Supreme Court. Ariz. R. Crim. P. 31.21(b)(2)(A). The habeas 21 petition was due one year later, November 23, 2009. Having filed his habeas petition on 22 July 31, 2023, Petitioner was untimely by over 13 years, absent statutory or equitable 23 tolling. 24 However, Petitioner argues he “could not in the exercise of due diligence … 25 discovered that his release date is a date other than his release date of [September 7, 2022].” 26 (Doc. 1 at 11.) Petitioner’s argument implies that he discovered the factual predicate of his 27 claim on September 7, 2022, and that is when the one-year statute of limitations of AEDPA 28 should commence. Additionally, Petitioner claims that under Ariz. Rev. Stat. § 13-116, he 1 should not be serving a flat-time sentence, that all 4 of his sentences should have been 2 concurrent, and the maximum sentence he could have received was 10 years. Id. However, 3 this claim presents a non-cognizable issue of state law. 1 4 The Court finds Petitioner’s argument for when he discovered the factual predicate 5 of his claim unpersuasive. At his sentencing hearing on October 19, 2007, Petitioner 6 learned the factual predicate of any potential sentence miscalculation (i.e., the Arizona 7 statutes that he was sentenced under, the sentence calculations, and a calculatable date of 8 release). (Doc 10-1 at 16, 21; Exhs. D, E.) Petitioner’s new claim of a potential sentence 9 miscalculation is a newly discovered legal theory, not a newly discovered factual predicate. 10 While it is true Petitioner may have discovered this new legal theory on September 7, 2022, 11 the discovery of a new legal theory is not what starts AEDPA’s one-year statute of 12 limitations. The discovery of the factual predicate underlying the theory starts AEDPA’s 13 one-year statute of limitations. Here, the Court finds the factual predicate underlying this 14 sentence miscalculation theory was discoverable on October 19, 2007, at Petitioner’s 15 sentencing hearing. See Hasan, 254 F.3d at 1154 n.3; Owens v. Boyd, 235 F.3d 356, 359 16 (7th Cir. 2000) (rejecting prisoner’s assertion that the one-year period begins when he 17 “actually understands what legal theories are available”) (emphasis in original). See also 18 McCutcheon v. Arizona, 2016 WL 8257606, at *4 (D. Ariz. 2016), report and 19 recommendation adopted, 2017 WL 610480 (D. Ariz. 2017) (dismissing a habeas corpus 20 petition as untimely because arguing for a “different interpretation of Arizona law” is not 21 “a newly discovered factual predicate” in accordance with 28 U.S.C. § 2244(d)(1)(D)); 22 Holmes v. Spencer, 685 F.3d 51, 59 (1st Cir. 2012) (“We have interpreted § 23 2244(d)(1)(D)’s reference to the phrase ‘factual predicate’ to mean ‘evidentiary facts or 24
25 1 Petitioner asserts that his sentence is incorrectly calculated under A.R.S. § 13-116, 26 however these issues are a matter of state law. Therefore, Petitioner’s claim is not cognizable on federal habeas review. See 28 U.S.C. § 2254(a) (federal courts can grant 27 habeas relief “only on the ground that [petitioner] is in custody in violation of the constitution or the laws or treaties of the United States); see also Swarthout v. Cooke, 562 28 U.S. 216, 219 (2011) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). 1 events[,] and not court rulings or legal consequences of the facts.’”). 2 The government argues that Petitioner has known about his claim since February 3 2020, when Petitioner filed his motion for presentence credit, or alternatively, May 2020 4 when Petitioner received a letter from prison officials indicating his release date. (Doc. 10 5 at 7.) However, it is irrelevant to AEDPA’s one-year statute of limitations whether 6 Petitioner discovered this new legal theory on either of these dates. The underlying factual 7 predicate of this theory was discoverable on October 19, 2007, at Petitioner’s sentencing 8 hearing. Even if the government’s argument was correct, Petitioner’s habeas petition would 9 still be untimely by over two years. 10 Finally, while Petitioner did appeal his conviction to the Arizona Court of Appeals, 11 the Court finds the instant claim is unexhausted and not preserved for habeas review 12 because he did not raise the specific claim of a potential sentence miscalculation.2 (Doc. 13 10-1 at 25-45; Exh G.) 14 Therefore, Petitioner’s habeas petition is untimely by over 13 years, absent statutory 15 or equitable tolling. 16 B. Statutory Tolling 17 The one-year limitations period is statutorily tolled for the time period “during 18 which a properly filed application for State post-conviction or other collateral review … is 19 pending.” 28 U.S.C. § 2244(d)(2). Additionally, a “state-court petition … that is filed 20 following the expiration of the limitations period cannot toll that period because there is no 21 period remaining to be tolled.” Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). 22 Petitioner’s February 2020 motion for presentence credit challenging his sentence 23
24 2 Although Petitioner raised the claim of a sentence miscalculation in numerous 25 motions in state court, he never presented the same claim to the Arizona Court of Appeals. Petitioner raised three other issues on appeal: the sufficiency of the evidence, the 26 qualifications of an expert witness, and whether he waived his right to testify. (Doc. 10-1 at 26; Exh. G.) Petitioner did not present the Arizona Court of Appeals with an opportunity 27 to rule on a potential sentence miscalculation. As such, this claim is unexhausted and has not been preserved for habeas review. 28 U.S.C. § 2244(b)(1)(A); Swoopes v. Sublett, 196 28 F.3d 1008, 1010 (9th Cir. 1999) (“claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”). 1 calculation was untimely because AEDPA’s statute of limitations had been expired for over 2 10 years by then. Thus, this motion did not toll AEDPA’s statute of limitations “because 3 there [was] no period remaining to be tolled.” Webster, 199 F.3d at 1259. All subsequent 4 motions filed by Petitioner that challenged his sentence fail to toll AEDPA’s statute of 5 limitations for the same reason. Therefore, Petitioner is not entitled to statutory tolling. 6 C. Equitable Tolling 7 “A petitioner who seeks equitable tolling of AEDPA’s 1-year filing deadline must 8 show that (1) some ‘extraordinary circumstance’ prevented him from filing on time, and 9 (2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) 10 (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The petitioner bears the burden of 11 showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 12 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, 13 rather than a petitioner’s lack of diligence, account for the failure to file a timely habeas 14 action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be 15 rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 16 (9th Cir. 2009). 17 Petitioner does not argue that he is entitled to equitable tolling. In any event, the 18 Court finds Petitioner’s lack of diligence evidence that he does not meet the burden of 19 demonstrating extraordinary circumstances that would justify equitable tolling. Petitioner 20 failed to file a motion challenging his sentence miscalculation for over a decade. 21 Additionally, Petitioner neither filed a petition for review in the Arizona Supreme Court 22 on direct appeal, nor sought review of the denial of any of his motions in the Arizona Court 23 of Appeals. (Doc. 10-3 at 83-90; Exh. EE.) Accordingly, the Court finds there is no basis 24 to conclude that Petitioner has been diligent in pursuing his rights. Therefore, Petitioner 25 has failed to meet his burden of demonstrating extraordinary circumstances that would 26 justify equitable tolling. 27 \\\ 28 \\\ 1 D. Actual Innocence 2 There is no miscarriage of justice by precluding Petitioner’s untimely habeas 3 petition. To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 4 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas 5 petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 6 383, 398 (2013). 7 Petitioner does not claim that he is innocent of the crimes of which he has been 8 convicted. Rather, Petitioner’s repeated argument for release stems solely from the claim 9 that his sentence has been incorrectly calculated. Therefore, the Court concludes that there 10 is no miscarriage of justice by precluding Petitioner’s untimely habeas petition. 11 V. CONCLUSION 12 Based on the above analysis, the Court finds that Petitioner’s habeas petition is 13 untimely by over 13 years, and Petitioner is not entitled to statutory or equitable tolling to 14 excuse the untimely filing. 15 Accordingly, 16 IT IS THEREFORE RECOMMENDED that the Petitioner’s Petition for Writ of 17 Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED 18 WITH PREJUDICE. 19 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave 20 to proceed in forma pauperis on appeal be DENIED because the dismissal of the amended 21 Petition is justified by a plain procedural bar and reasonable jurists would not find the 22 ruling debatable. 23 This recommendation is not an order that is immediately appealable to the Ninth 24 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 25 Appellate Procedure, should not be filed until entry of the district court’s judgment. The 26 parties shall have 14 days from the date of service of a copy of this Report and 27 Recommendation within which to file specific written objections with the Court. See 28 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days 1 || within which to file a response to the objections. 2 Failure to timely file objections to the Magistrate Judge’s Report and 3 || Recommendation may result in the acceptance of the Report and Recommendation by the 4|| district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, |} 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the || Magistrate Judge will be considered a waiver of a party’s right to appellate review of the 7\| findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report 8 || and Recommendation. See Fed. R. Civ. P. 72. 9 Dated this 28th day of August, 2024. 10 Wr eted Y- PMereis □□ United States Macistrate Tudae 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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