David Louis Colson v. Charles L Ryan, et al.

Opinion

1 2 3 4 5

9 David Louis Colson, No. CV-17-01207-PHX-DGC (BSB)

10 Petitioner, REPORT AND RECOMMENDATION 11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 On April 24, 2017, Petitioner David Louis Colson filed a Petition for Writ of 16 Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 5.) On June 1, 2017, the Court 17 dismissed the Petition with leave to amend. (Doc. 8.) On June 15, 2017, Petitioner filed 18 a First Amended Petition, which the Court dismissed with leave to amend. (Docs. 9, 10.) 19 On July 6, 2017, Petitioner filed a Second Amended Petition and a separate “statement of 20 the case.” (Docs. 11, 12.) On July 17, 2017, the Court directed Respondents to answer 21 portions of Grounds One, Three, and Five, and to answer Grounds Six, Seven, and Ten. 22 (Doc. 13 at 6, 8.) The Court dismissed Petitioner’s remaining claims. (Id. at 6, 8.) 23 Respondents filed an answer asserting that the Second Amended Petition is untimely and, 24 alternatively, that Petitioner’s claims are procedurally barred from federal habeas corpus 25 review. (Doc. 22.) Respondents also filed a motion to dismiss based on Petitioner’s 26 alleged false statements in a filing entitled “stipulations and admissions.”1 (Doc. 35.) 27 28 1 The Court struck Petitioner’s “stipulations and admissions.” (Doc. 36 (striking Doc. 33).) 1 Petitioner filed a reply in support of his Second Amended Petition and a response to the 2 motion to dismiss.2 (Docs. 28, 38.) As set forth below, the Court recommends that the 3 Second Amended Petition be denied, and that the motion to dismiss be denied as moot. 4 I. Factual and Procedural Background 5 A. Guilty Plea and Sentencing 6 On February 7, 2013, Petitioner pleaded guilty in the Maricopa County Superior 7 Court to one count of sexual conduct with a minor (Count One), and two counts of 8 attempted child molestation (Counts Two and Three). (Doc. 22, Ex. A.) On May 8, 9 2013, the trial court sentenced Petitioner to twenty-seven years’ imprisonment on Count 10 One. (Doc. 22, Ex. C.) The court suspended the imposition of sentence on Counts Two 11 and Three, and placed Petitioner on lifetime probation upon his physical release from 12 custody. (Id.) 13 B. Rule 32 Of-Right Proceeding 14 On July 8, 2013, Petitioner filed a notice of post-conviction relief in the trial court 15 to commence an “of-right” proceeding under Rule 32 of the Arizona Rules of Criminal 16 Procedure 32.3 (Doc. 22, Ex. D.) On March 11, 2014, appointed counsel filed a notice 17 advising the court that, after reviewing the record, counsel could find no colorable claim 18 for relief. (Doc. 22, Ex. E.) Petitioner then filed a pro se petition. (Doc. 22, Ex. A.) On 19 March 7, 2016, the court found that Petitioner had failed to raise a colorable claim for 20 relief, and denied the petition. (Id.) The record before the Court indicates that Petitioner 21 did not seek review in the Arizona Court of Appeals. (Doc. 22 at 6; Doc. 28 at 10.) 22

23 2 In his reply, Petitioner argues that Respondents’ answer does not respond to his 24 claims. (Doc. 28 at 9.) The Court, however, permitted Respondents to file an answer limited to affirmative defenses. (Doc. 13.) Therefore, Respondents’ answer complies 25 with the Court’s order. (Id.) 26 3 Because Petitioner pleaded guilty, his only avenue of direct review was a Rule 32 “of-right” proceeding. See Ariz. Rev. Stat. § 13-4033(B) (“[I]n noncapital cases a 27 defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement . . . .”); Ariz. R. Crim. P. 32.1 (“[a]ny person who pled guilty or no contest . . . 28 shall have the right to file a post-conviction relief proceeding, and this proceeding shall be known as a Rule 32 of-right proceeding”). 1 C. Other Post-Conviction Proceedings 2 On May 10, 2016, Petition filed a petition for post-conviction relief, which the 3 trial court treated as a notice of post-conviction relief under Rule 32. (Doc. 22, Ex. F.) 4 On September 13, 2016, the court dismissed the notice as untimely and successive. (Id.) 5 On April 24 and May 9, 2017, respectively, Petitioner filed a “petition for writ of 6 habeas corpus” and a “notice of stipulated facts” in the trial court. (Doc. 22, Ex. G.) The 7 court treated the filings as a single notice of post-conviction relief under Rule 32. (Id.) 8 On May 30, 2017, the court dismissed the notice as untimely and successive. (Id.) 9 In June 2017, Petitioner filed a “supplemental petition for writ of habeas corpus,” 10 and a request for preparation of the post-conviction record in the trial court. (Doc. 22, 11 Ex. H.) The court treated the filings as a single notice of post-conviction relief. (Id.) On 12 July 28, 2017, the court dismissed the notice as untimely and successive. 13 D. Federal Petition for Writ of Habeas Corpus 14 On July 6, 2017, Petitioner filed a Second Amended Petition for Writ of Habeas 15 Corpus, and a separate “statement of the case,” in this Court. (Docs. 11, 12.) Petitioner 16 raises several claims for relief. (See Docs. 11, 12, 13.) As set forth below, the Court 17 recommends that the Second Amended Petition be dismissed as untimely. 18 II. Statute of Limitations 19 A. Commencement of the Limitations Period 20 The AEDPA provides a one-year statute of limitations for a state prisoner to file a 21 petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). The 22 limitations period generally commences on “the date on which the judgment became final 23 by the conclusion of direct review or the expiration of the time for seeking such review.” 24 28 U.S.C. § 2244(d)(1)(A).4 Therefore, to assess the timeliness of the Second Amended 25 Petition, the Court determines the date on which Petitioner’s convictions became “final 26 by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). By pleading guilty,

27 4 The statute of limitations commences on the latest of the dates determined by 28 applying §§ 2244(d)(1)(A) through (D). See 28 U.S.C. §§ 2244(d)(1)(A)-(D). Petitioner does not make any allegations indicating that subsections (B), (C), or (D) should apply. 1 Petitioner was precluded from pursuing a direct appeal in the Arizona Court of Appeals. 2 See Ariz. Rev. Stat. § 13-4033(B). Rather, Petitioner could seek review of his 3 convictions and sentences in an “of-right” proceeding pursuant to Rule 32, which is the 4 functional equivalent of a direct appeal. See Ariz. R. Crim. P. 32.1 and 32.4.; Summers v. 5 Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007) (noting that Arizona courts consider Rule 6 32 of-right proceedings a form of direct review). 7 Petitioner pleaded guilty and was sentenced on May 3, 2013. (Doc. 22, Ex. C.) 8 On July 8, 2013, he sought review in a Rule 32 of-right proceeding. (Doc. 22, Ex. D.) 9 On March 7, 2016, the trial court denied relief. (Doc. 22, Ex. A.) Petitioner did not seek 10 review in the Arizona Court of Appeals. Therefore, Petitioner’s convictions became final 11 on April 6, 2016, when the time for filing a petition for review in the Arizona Court of 12 Appeals expired. See Ariz. R. Crim. P. 32.9(c); see also Summers, 481 F.3d at 711; 13 Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007) (for purposes of 14 § 2244(d)(1)(A) direct review is final upon conclusion of direct review or the time to 15 seek such review). Therefore, the one-year limitations period commenced the next day, 16 April 7, 2016, and expired one year later, on April 7, 2017. See Patterson v. Stewart, 251 17 F.3d 1243, 1245-47 (9th Cir. 2001) (the AEDPA limitations period begins to run on the 18 day after the triggering event pursuant to Fed. R. Civ. P. 6(a)). 19 Petitioner did not file his Second Amended Petition until July 7, 2017. However, 20 this was Petitioner’s third attempt at filing a habeas corpus petition. Petitioner previously 21 filed petitions on April 24 and June 15, 2017. (Docs. 1, 9.) Under Rule 15(c)(2) of the 22 Federal Rules of Civil Procedure, an amended habeas petition may relate back to the date 23 when the original petition was filed. See Mayle v. Felix, 545U.S. 644, 659 (2005) (noting 24 that Rule 15(c) applies to habeas petitions). An amended petition may “relate back” to an 25 earlier filed petition for statute of limitations purposes if the petition shares a “common 26 core of operative facts” that unite the original and newly asserted claims. Jackson v. Roe, 27 425 F.3d 654, 660 n.8 (9th Cir. 2005). An amended petition does not relate back when it 28 asserts a new ground for relief supported by facts that differ in both “time and type” from 1 those set forth in the original pleading. Felix, 545 U.S. at 659; see also Ha Van Nguyen 2 v. Curry, 736 F.3d 1287 (9th Cir. 2013) (noting that the “time and type” language in Felix 3 refers to the facts supporting habeas claims). “The facts alleged must be specific enough 4 to put the opposing party on notice of the factual basis for the claim.” Dodd v. United 5 States, 614 F.3d 512, 515 (8th Cir. 2010). If a new claim merely clarifies a claim or 6 theory that was included in the original petition, the new claim may relate back to the 7 date of the original petition and avoid a time bar. Woodward v. Williams, 263 F.3d 1135, 8 1142 (10th Cir. 2001). 9 Here, the Petition and the First Amended Petition were dismissed without 10 prejudice for failing to comply with the Local Rules of Civil Procedure and for failing to 11 specifically set forth any grounds for relief. (Docs. 8, 10.) The Court noted that the 12 petitions themselves did not include any particular claims for relief. (Id.) The Ninth 13 Circuit has held that “the relation back doctrine does not apply where the previous habeas 14 petition was dismissed because there is nothing to which the new petition could relate 15 back.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (citing Henry v. 16 Lungren, 164 F.3d 1240, 1241 (9th Cir. 2006)); see also Warren v. Garvin, 219 F.3d 111, 17 114 (2d Cir. 2000) (“[T]he ‘relation back’ doctrine is inapplicable when the initial habeas 18 petition was dismissed, because there is no pleading to which to relate back.”) (citation 19 omitted). 20 Because the earlier filed petitions did not include any particular claims and were 21 dismissed, the Second Amended Petition does not relate back to either of these filings. 22 Moreover, even if the relation back doctrine applied, the Second Amended Petition would 23 still be time barred because the earliest filed petition was filed on April 24, 2017, after the 24 limitations period had expired. (Doc. 1 (the petition bears an electronic file stamp of 25 April 24, 2017, and does not include the date on which it was signed).) Therefore, the 26 Second Amended Petition is untimely unless statutory or equitable tolling applies. 27 /// 28 /// 1 B. Statutory Tolling 2 Pursuant to the AEDPA, the one-year limitations period is tolled during the time 3 that a “properly filed application for State post-conviction or other collateral review with 4 respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see Nino 5 v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (stating that an application for collateral 6 review is pending in state court for “all the time during which a state prisoner is 7 attempting, through proper use of state court procedures, to exhaust state remedies with 8 regard to particular post-conviction proceedings.”). 9 After the conclusion of his Rule 32 of-right proceeding, Petitioner commenced 10 three post-conviction proceedings in the state court. See Section I.C. The state court 11 dismissed those notices of post-conviction relief as untimely. (Doc. 22, Exs. F, G, H.) 12 Because the applications for post-conviction relief were untimely under Arizona law, 13 they were not “properly filed” for purposes of 28 U.S.C. § 2244(d)(2) and, therefore, they 14 did not toll the limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) 15 (holding that time limits are filing conditions and concluding that “[b]ecause the state 16 court rejected petitioner’s [post-conviction] petition as untimely, it was not ‘properly 17 filed,’ and he [was] not entitled to statutory tolling under § 2244(d)(2).”). 18 C. Equitable Tolling 19 The AEDPA limitations period may be equitably tolled because it is a statute of 20 limitations, not a jurisdictional bar. Holland v. Florida, 560 U.S. 631, 645 (2010). 21 However, a petitioner is entitled to equitable tolling only if he shows: “(1) that he has 22 been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 23 his way.” Pace, 544 U.S. at 418. “The diligence required for equitable tolling purposes 24 is reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 25 (internal citations and quotations omitted). Whether to apply the doctrine of equitable 26 tolling “‘is highly fact-dependent,’ and [the petitioner] ‘bears the burden of showing that 27 equitable tolling is appropriate.’” Espinoza-Matthews v. California, 432 F.3d 1021, 1026 28 (9th Cir. 2005) (internal citations omitted). Petitioner does not specifically argue that 1 equitable tolling applies. (Docs. 11, 12, 28.) Instead, Petitioner asserts, without 2 explanation, that failure to consider his claims will result in a fundamental miscarriage of 3 justice. (Doc. 28 at 11.) However, this conclusory allegation is insufficient to establish 4 that equitable tolling is warranted. See McQuiggin v. Perkins, 569 U.S. 383 (2013) 5 (holding that the actual innocence/fundamental miscarriage of justice exception applies to 6 the AEDPA statute of limitations). 7 Petitioner’s lack of legal knowledge and legal assistance do not constitute 8 extraordinary circumstances sufficient to toll the limitations period. “[I]t is well 9 established that ‘ignorance of the law, even for an incarcerated pro se petitioner, 10 generally does not excuse prompt filing.’” Marsh v. Soares, 223 F.3d 1217, 1220 (10th 11 Cir. 2000) (quoting Fisher v. Johnson, 174 F.3d 710, 714 (9th Cir. 1999)). Petitioner’s 12 ignorance of the law and indigent status do not distinguish him from the great majority of 13 inmates pursuing habeas corpus relief. Such circumstances are not extraordinary and do 14 not justify tolling the limitations period. “If limited resources, lack of legal knowledge, 15 and the difficulties of prison life were an excuse for not complying with the limitation 16 period, the AEDPA’s limitation period would be meaningless since virtually all 17 incarcerated prisoners have these same problems in common.” Bolanos v. Kirkland, 18 2008 WL 928252, at *4 (E.D. Cal. Apr. 4, 2008); see also Rasberry, 448 F.3d at 1154 19 (affirming denial of equitable tolling because neither the district court’s failure to advise 20 the petitioner of the right to amend his petition to include unexhausted claims, nor 21 petitioner’s inability to correctly calculate the limitations period, were extraordinary 22 circumstances warranting equitable tolling). 23 III. Conclusion 24 The Court concludes that the Second Amended Petition is untimely and 25 recommends that it be denied on that basis. Therefore, the Court does not consider 26 Respondents’ alternative arguments for denying relief. Because the Court recommends 27 that the Second Amended Petition be denied, the Court recommends that the motion to 28 dismiss be denied as moot. 1 Accordingly, 2 IT IS RECOMMENDED that the Second Amended Petition (Doc. □□□ be □□ DENIED as untimely, and that the motion to dismiss (Doc. 35) be denied as moot. 4 IT IS FURTHER RECOMMENDED that a certificate of appealability and leave 5 || to proceed in forma pauperis on appeal be DENIED because the dismissal of the Second 6|| Amended Petition is justified by a plain procedural bar and reasonable jurists would not □□ find the procedural ruling debatable. 8 This recommendation is not an order that is immediately appealable to the Ninth 9|| Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 10}} Rules of Appellate Procedure should not be filed until entry of the District Court’s 11) judgment. The parties shall have fourteen days from the date of service of a copy of this 12 || recommendation within which to file specific written objections with the Court. See 28 13 || U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate 15 || 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. 17 || Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 18 Dated this 27th day of February, 2018. 19 20 . Ex hes” bagle 09 Bridget S. Bade United States Magistrate Judge 23 24 25 26 27 28

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