Davis v. Shinn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jeffery Scott Davis, No. CV-20-00517-TUC-RCC

10 Petitioner, ORDER

11 v.

12 David C. Shinn, et al.,

13 Respondents. 14 15 On September 6, 2022, Magistrate Judge D. Thomas Ferarro issued a Report 16 and Recommendation (“R&R”) in which he recommended the Court dismiss 17 Petitioner Jeffery Scott Davis's Petition Under 28 U.S.C. § 2254 for a Writ of 18 Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) as 19 untimely. (Doc. 19.) Petitioner filed an objection to the R&R (Doc. 22), and 20 Respondents a response (Doc. 24). Upon review, the Court will adopt the R&R and 21 dismiss Petitioner's § 2254 Habeas Petition. 22 I. STANDARD OF REVIEW 23 The standard the district court uses when reviewing a magistrate judge’s 24 R&R is dependent upon whether a party objects: where there is no objection to a 25 magistrate’s factual or legal determinations, the district court need not review the 26 decision "under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 27 150 (1985). However, when a party objects, the district court must “determine de 28 novo any part of the magistrate judge’s disposition that has been properly objected 1 to. The district judge may accept, reject, or modify the recommended disposition; 2 receive further evidence; or return the matter to the magistrate judge with 3 instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Moreover, 4 “while the statute does not require the judge to review an issue de novo if no 5 objections are filed, it does not preclude further review by the district judge, sua 6 sponte or at the request of a party, under a de novo or any other standard.” Thomas, 7 474 U.S. at 154. 8 A petitioner’s objections to an R&R must specifically indicate the findings 9 and recommendations for which he disagrees. Fed. R. Civ. P. 72(b). In addition, 10 the court need not review arguments raised for the first time in an objection to the 11 R&R. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). 12 There being no objection to the procedural summary of the case, the Court 13 adopts the Magistrate Judge’s recitation of the procedural facts, and only 14 summarizes them as necessary to address Petitioner’s objections. 15 II. TIMELINESS Under the Antiterrorism and Effective Death Penalty Act of 1996 16 ("AEDPA"), a petitioner may file a writ of habeas corpus in federal court one year 17 18 from “the date on which the judgment became final by the conclusion of direct 19 review or the expiration of the time for seeking such review” or "the date on which 20 the factual predicate of the claim or claims presented could have been discovered 21 through the exercise of due diligence." 8 U.S.C. § 2244(d)(1). “The time during 22 which a properly filed application for State post-conviction or other collateral 23 review with respect to the pertinent judgment or claim is pending shall not be 24 counted toward any period of limitation.” Id. § 2244(d)(2) (emphasis added). 25 When a state court denies a "petitioner's PCR[] petition as untimely, it was not 26 'properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2)." Pace 27 v. DiGuglielmo, 544 U.S. 408, 417 (2005) (emphasis in original). 28 Petitioner challenges the Magistrate Judge's conclusion that the § 2254 1 habeas petition is untimely. (Doc. 22 at 2.) 2 On December 30, 2010, Petitioner plead no contest to one count of sexual 3 conduct with a minor and one count of attempted molestation of a child. (Doc. 15- 4 1 at 11–12.) The trial court sentenced Petitioner on February 11, 2011. (Id. at 68– 5 69.) He had ninety days from that date––until May 12, 2011––to file a notice for 6 Post-Conviction Relief ("PCR") and failed to do so.1 See Ariz. R. Crim. P. 7 32.4(b)(3) (In Arizona, when challenging the constitutionality of a sentence, "a 8 defendant must file [his PCR notice] within 90 days after the oral pronouncement 9 of sentence or within 30 days after the issuance of the mandate on direct appeal . . . 10 .")). Thus, the statute of limitations started running the following day—May 13, 11 2011—and the one-year AEDPA limitation for filing a federal habeas petition 12 expired on May 13, 2012. Petitioner's untimely PCR petitions did not toll the 13 statute of limitations.2 See Pace, 544 U.S. at 417; Cross v. Sisto, 676 F.3d 1172, 14 1176 (9th Cir. 2012). 15 16 A federal court may still review a fedearl habeas petition filed more than one 17 year after the expiration of state review if equitable tolling applies. See Holland v. 18 Florida, 560 U.S. 631, 649 (2010). However, Petitioner made no argument for 19 equitable tolling before the Magistrate Judge. (See Doc. 1 at 13–14; see Howell, 20 231 F.3d at 621 (determining the district court need not review arguments that 21 were not before the magistrate).) Therefore, Petitioner's §2254 habeas, filed 22 November 23, 2020, is untimely. 23 /// 24 /// 25 /// 26

27 1 Petitioner's first untimely PCR petition was filed September 2012. State v. Davis, 2 CA- CR 2013-0131-PR, 2013 WL 3961199 (Ariz. App. July 31, 2013). 28 2 See State v. Davis, 2 CA-CR 2019-0239-PR, 2020 WL 1490882, at *1 (Ariz. App. Mar. 27, 2020) (recounting procedural history of post-conviction appeals). 1 III. ACTUAL INNOCENCE 2 Petitioner next argues that his untimeliness should be excused because he is 3 actually innocent of the offenses. (Doc. 22 at 5–15.) 4 Even if time barred, a federal court may review the merits of a habeas 5 petition if the petitioner can demonstrate he is actually innocent of the conviction. 6 Lee v. Lampert, 653 F.3d 929, 934 (9th Cir. 2011). However, "tenable actual 7 innocence gateway pleas are rare." McQuiggin v. Perkins, 569 U.S. 383, 385 8 (2013). A petitioner must "persuade[] the district court that, in light of the new 9 evidence, no juror, acting reasonably, would have voted to find him guilty beyond 10 a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). To do so, a 11 petitioner must "support his allegations of constitutional error with new reliable 12 evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 13 accounts, or critical physical evidence—that was not presented at trial." Lee, 653 14 F.3d 929, 938 (9th Cir. 2011) (quoting Schlup, 513 U.S. at 324). The evidence 15 16 supporting actual innocence cannot be "merely cumulative or speculative" or 17 "insufficient to overcome otherwise convincing proof of guilt." Larsen v. Soto, 742 18 F.3d 1083, 1096 (9th Cir. 2013). 19 a. Magistrate's R&R 20 The Magistrate Judge separated Petitioner's new evidence of actual 21 innocence into three categories: (1) evidence undermining Petitioner's confession, 22 (2) evidence undermining the victim's statement, and (3) evidence undermining the 23 handwriting contained in the victim's journal. (Doc. 19 at 7.) 24 First, the Magistrate noted Petitioner's affidavit and his mother's affidavit 25 were biased, contradictory, and not credible. (Id. at 8; see also Doc. 15-1 at 159 26 (state court finding that "Mr. Davis' testimony lacks credibility").) Moreover, the 27 Magistrate Judge determined Petitioner's new evidence did not demonstrate his 28 innocence of the instant offenses and contained references to irrelevant incidents or 1 mitigating factors such as his own childhood abuse, his sleep deprivation during 2 his confession, and his positive relationship with his other children. (Doc. 19 at 7.) 3 Moreover, the Magistrate pointed out there was no reason Petitioner could not have 4 raised these issues in a timely PCR petition. (Id. at 8.) Therefore, the Magistrate 5 stated, Petitioner "has not undercut the credibility of his confession with reliable 6 evidence." (Id. at 8.) 7 Second, the Magistrate noted Petitioner had attempted to weaken the 8 victim's statement by alleging (1) the investigation was leading, (2) the alleged act 9 occurred at a different time, and (3) the victim's and the victim's mother's 10 statements were inconsistent. (Id. at 9.) But, the Magistrate Judge indicated, even if 11 the investigation was leading, investigators eased up their questioning when the 12 victim did not remember answers, and the victim clarified, initiated, and described 13 many different allegations. (Id.) Again, the Magistrate reiterated that Petitioner's 14 and his mom's affidavits were not reliable because they were biased. (Id.) The 15 16 Magistrate concluded the victim's inability to pinpoint a specific date of the alleged 17 molestation and her feeling that the molestation seemed like a dream did not 18 sufficiently undermine her testimony to find that Petitioner had presented "new 19 reliable evidence such that it is likely every reasonable juror would vote to reject 20 [the victim's] accusation and acquit" Petitioner. (Id.) 21 Finally, the Magistrate Judge addressed Petitioner's argument that the 22 victim's journal was a forgery. (Id. at 10.) The Magistrate noted that Petitioner 23 pointed out handwriting similarities shared between the writing in the journal and 24 the victim's mother but did not show dissimilarity with the victim's handwriting. 25 (Id.) In addition, the Magistrate found this allegation did not "show that it is likely 26 that no juror would have voted to convict him based on the previously discussed 27 evidence." (Id.) 28 /// 1 b. Petitioner's Objections 2 Petitioner filed a twenty-eight-page objection to the R&R. (Doc. 22.) He 3 claims that his untimely filing was reasonable "when one considers all the 4 obst[a]cles that he had to overcome." (Id. at 2.) These obstacles included that his 5 counsel did not inform him of his ability to prove his innocence or of the legal 6 basis for an actual innocence claim and that he was unable to obtain his case file in 7 a timely manner. (Id.) He also argues the Magistrate erroneously determined he 8 had not met his burden of showing actual innocence. (Id.) 9 Petitioner's pro se status and lack of legal acumen does not excuse his 10 untimely filing. Pro se litigants in state and federal courts must follow the rules of 11 procedure for litigating their claims in a timely manner. See Waldron-Ramsey v. 12 Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009) ("[A] pro se petitioner's 13 confusion or ignorance of the law is not, itself, a circumstance warranting equitable 14 tolling.") (citing Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)); see 15 16 also Flynn v. Campbell, 402 P.3d 434, 441 (Ariz. 2017) (for pleading purposes, the 17 courts "hold unrepresented litigants in Arizona to the same standards as attorneys") 18 (citing Smith v. Rabb, 386 P.2d 649, 652 (Ariz. 1963)). 19 In addition, Petitioner could have submitted his and his family's affidavits 20 previously and his inability to obtain his case file did not prevent him from filing a 21 timely PCR petition with his evidence of actual innocence. 22 Moreover, Petitioner's argument does not undermine the Magistrate's finding 23 that the affidavits are biased and do not provide reliable evidence of innocence. If 24 the Court were forced to credit every assertion of innocence by a defendant and his 25 family, few convictions would stand. The Court agrees with the Magistrate Judge 26 that these affidavits are not trustworthy eye-witness accounts. See Jones v. Taylor, 27 763 F.3d 1242, 1249 (9th Cir. 2014) (indicating family "recantations . . . reduce[] 28 their weight and reliability") (citing House v. Bell, 547 U.S. 518 (2006)); see also 1 Garcia v. Evans, 670 F. App'x 622, 623 (9th Cir. 2016) (“Declarations are not a 2 strong form of evidence because ‘the affiants’ statements are obtained without the 3 benefit of cross-examination and an opportunity to make credibility 4 determinations.”). 5 Petitioner next argues the Magistrate Judge erroneously concluded that the 6 victim's interview was credible despite various contradictions in her testimony and 7 investigators' leading questions. (Doc. 22 at 8–9.) The Court has conducted a de 8 novo review of the interview. The victim stated that Petitioner's sexual abuse 9 occurred over a long period—between the ages of seven and seventeen, sometimes 10 as frequently as twice a week. (Doc. 8-15 at 2; Doc. 8-18 at 9; Doc. 15-1 at 17–18, 11 21, 33, 38, 40–41, 43–45, 49, 53–57.) Understandably, the victim indicated she 12 tried to block out the incidents from her mind. (Doc. 8-18 at 8.) Thus, her inability 13 to define specific dates of abuse does not necessarily undermine her testimony nor 14 does it provide reliable, new evidence of innocence. And, as stated previously, 15 16 Petitioner's affidavit and his mother's affidavit are not particularly credible. 17 Therefore, Petitioner's evidence does not compel the Court to find no reasonable 18 juror would have found Petitioner guilty. 19 Petitioner next asserts that the victim's journal "conveniently materialized 17 20 months after the false accusations." (Doc. 22 at 12–13.) He believes the victim's 21 mom wrote it, not the victim. (Id.) He claims the mother (1) fabricated the journal 22 to punish Petitioner, (2) provided inconsistent statements, (3) influenced David 23 Burkett's testimony; and (4) manipulated her role as the victim's legal 24 representative to "get rid of Davis." (Id. at 12–14.) Petitioner claims his failure to 25 compare the victim's handwriting to that in the journal does not undermine these 26 allegations. (Id. at 13.) 27 Petitioner's barren allegations concerning the victim's mother's motives do 28 not provide new reliable evidence of his innocence. Moreover, while the alleged 1 similarity between the victim's mother's handwriting and that contained in the 2 journal may undermine the credibility of victim's testimony and provide 3 impeachment evidence, Petitioner has not met his burden of demonstrating that no 4 reasonable juror could find him guilty. See Patterson v. Bartlett, 56 F. App'x 762, 5 763–64 (9th Cir. 2002) (finding contradictory affidavits attacking credibility of 6 victim did "not present direct evidence of actual innocence"); Ballinger v. Kirby, 3 7 F.3d 1371, 1375 (10th Cir. 1993) ("But more is required to satisfy the actual 8 innocence exception [than simply impeachment evidence], or it would have no 9 greater meaning than the prejudice prong of the cause and prejudice inquiry."). 10 Petitioner finally argues that the Magistrate Judge was incorrect when he 11 determined Petitioner's plea was knowing and voluntary. (Doc. 22 at 15.) He 12 claims the lack of a sentencing transcript should be newly discovered evidence 13 supporting his innocence. (Id.) Petitioner's claims do not show his signed plea 14 agreement was unknowing or involuntary. (See Plea Agreement, Doc. 15-1 at 4–9.) 15 16 Furthermore, the factual basis for the signed plea agreement was obtained from 17 Petitioner's sworn confession and the victim's statements, and as stated previously, 18 his subsequent recantation is not credible. (Id. at 12, 14–15.) Nor is his repudiation 19 of the factual basis for the plea newly discovered, reliable evidence of innocence. 20 IV. CONCLUSION 21 Upon de novo review of the issues raised in Petitioner’s objection to 22 the R&R, the Court agrees with the Magistrate Judge’s determinations. Petitioner's 23 § 2254 habeas petition is untimely has not met his burden of establishing actual 24 innocence. Therefore, he is not entitled to relief. 25 V. CERTIFICATE OF APPEALABILITY 26 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the 27 event Petitioner files an appeal, the Court declines to issue a certificate of 28 appealability because reasonable persons could not “debate whether (or, for that || matter, agree that) the petition should have been resolved in a different manner or 2|| that the issues presented were adequate to deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations 4|| omitted). 5 Accordingly, IT IS ORDERED: 6 1. Magistrate Judge Ferraro's Report and Recommendation is ADOPTED. 7 (Doc. 19.) 8 2. Jeffery Scott Davis’ Petition Under 28 U.S.C. § 2254 for a Writ of Habeas 9 Corpus by a Person in State Custody is DENIED. (Doc. 1.) 10 3. The Clerk of Court shall docket accordingly and close the case file in this 11 matter. 12 Dated this 2nd day of December, 2022. 13 14 15 □ CU Dp N- 16 Honorable Raner ©. Collins 17 senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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