Honicky 333893 v. Thornell

• Court: District Court, D. Arizona
• Decided: March 31, 2025
• Docket: 2:24-cv-00714
• Status: Unknown

Opinion

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

9 Mark C Honicky, No. CV-24-00714-PHX-KML

10 Petitioner, ORDER

11 v.

12 Ryan Thornell, et al.,

13 Respondents. 14 15 Magistrate Judge John Z. Boyle issued a Report and Recommendation (“R&R”) 16 recommending Mark C. Honicky’s petition for writ of habeas corpus be denied as untimely. 17 (Doc. 31.) Honicky filed objections and respondents filed a response to those objections. 18 (Doc. 34, 36.) The R&R is correct that the petition is untimely, so it is dismissed. 19 The R&R recounts the basic procedural history regarding Honicky’s convictions in 20 state court. No party filed objections identifying errors in that history and it is adopted. In 21 brief, Honicky pleaded guilty in state court to manslaughter and was sentenced to 11.5 22 years of imprisonment. Final judgment was entered on March 5, 2019. Because he pleaded 23 guilty, Honicky was not entitled to a direct appeal but could only file a petition for post- 24 conviction relief. Honicky filed a timely notice of post-conviction relief and, months later, 25 a petition. The state trial court dismissed that first petition on January 21, 2021. The first 26 petition qualified as “direct review” for purposes of 28 U.S.C. § 2244(d)(A). Summers v. 27 Schriro, 481 F.3d 710, 717 (9th Cir. 2007). The one-year statute of limitations therefore 28 would have started once the time expired for seeking additional review of the trial court’s 1 denial. 28 U.S.C. § 2244(d)(1)(A). 2 On February 2, 2021—before the one-year limitations period began to run— 3 Honicky filed a second petition for post-conviction relief. The statute of limitations does 4 not run while “a properly filed” petition for post-conviction relief is pending. 28 U.S.C. 5 § 2244(d)(2). The parties agree the second petition should be considered “properly filed.” 6 The state court dismissed Honicky’s second petition on April 21, 2022, but the petition 7 remained pending while additional “state avenues for relief remain[ed] open,” even if 8 Honicky did not pursue those avenues. Melville v. Shinn, 68 F.4th 1154, 1160 (9th Cir. 9 2023) (simplified). Honicky had 30 days to seek review of the trial court’s denial, with an 10 additional five days added for mailing, so the petition remained pending for 35 days. Ariz. 11 R. Crim. P. 33.16(a)(1); Ariz. R. Crim. P. 1.10(a)(5). Honicky did not seek further review 12 during that 35-day period and the statute of limitations began to run on May 27, 2022. See 13 Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (concluding that under AEDPA, 14 the limitations period begins to run on the date after the triggering event pursuant to Federal 15 Rule of Civil Procedure 6(a)). 16 On August 13, 2022, Honicky filed his third petition for post-conviction relief. 17 (Doc. 19-2 at 8.) The state trial court rejected that petition as untimely. (Doc. 19-2 at 47.) 18 On April 6, 2023, the Arizona Court of Appeals granted review but denied relief. (Doc. 19- 19 2 at 53.) Because the state courts concluded that third petition for post-conviction relief 20 was untimely, “it was not ‘properly filed,’ and [Honicky] is not entitled to statutory tolling” 21 for the period while the state courts considered it. Pace v. DiGuglielmo, 544 U.S. 408, 417 22 (2005). Because the third petition did not have any tolling effect, the one-year clock that 23 began on May 27, 2022, expired on May 27, 2023. Honicky did not file his federal petition 24 until April 1, 2024, well beyond the one-year limitations period. 25 Based on this sequence of events, the R&R concludes statutory tolling does not 26 render Honicky’s petition timely. The R&R also explains that Honicky has not established 27 a plausible basis for equitable tolling, nor has he established the “actual innocence” 28 exception to the statute of limitations. Although Honicky’s objections are not entirely clear, 1 he has not identified any error in the R&R’s analysis. 2 Beginning with statutory tolling, Honicky seems to argue it was error for the R&R 3 to treat his three petitions for post-conviction relief differently in terms of tolling. (Doc. 34 4 at 17.) But as explained above, the third petition was deemed untimely by the state courts. 5 And once the state courts made that ruling, this court cannot allow for statutory tolling. See 6 Pace, 544 U.S. at 414 (“When a postconviction petition is untimely under state law, that 7 [is] the end of the matter for purposes of [tolling].”). 8 As for equitable tolling, in his objections Honicky admits he had almost his entire 9 “casefile [in] paper form” as of July 28, 2022. (Doc. 34 at 14.) Honicky does not explain 10 why he could not have filed his federal petition then, or at least before the limitations period 11 expired in May 2023. Equitable tolling is not appropriate. 12 Honicky’s objections appear to concede he is not attempting to invoke the “actual 13 innocence” exception to the statute of limitations. (Doc. 34 at 11.) But even if Honicky has 14 not disclaimed this exception, he has not identified any error in the R&R’s analysis of this 15 issue. 16 Finally, Honicky filed a variety of other motions. Because Honicky’s petition is 17 barred by the statute of limitations, there is no need to discuss his additional motions.1 18 Accordingly, 19 IT IS ORDERED the Report and Recommendation (Doc. 31) is ADOPTED as set 20 forth above. The petition for writ of habeas corpus is DENIED and DISMISSED WITH 21 PREJUDICE. The Clerk of Court shall enter judgment and close this case. 22 IT IS FURTHER ORDERED leave to proceed in forma pauperis and a certificate 23 of appealability are DENIED because dismissal of the petition is justified by a plain 24 procedural bar and reasonable jurists would not find the ruling debatable. 25 / 26 / 27 1 In his improper “Reply to Respondent’s Response to Petitioner’s Objections,” Honicky 28 states he “requested to withdraw the motion for sentence reduction from the Court.” (Doc. 39 at 7.) The motion was not withdrawn, however, so the court denies it as moot. 1 IT IS FURTHER ORDERED the Motion to Submit Detailed Constitutional 2|| Violations (Doc. 18), Motion for Sentence Reduction (Doc. 28), Motion to Request Disclosure (Doc. 33), Motion to Strike (Doc. 40), and Motion for Emergency Judicial 4|| Review (Doc. 41) are DENIED. 5 Dated this 31st day of March, 2025. 6 7 @L f g UL AQ TV. WCLA _ Honorable Krissa M. Lanham 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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