1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 William Louis Huff, No. CV-19-00251-TUC-EJM
10 Petitioner, ORDER
11 v.
12 Attorney General of the State of Arizona, et al., 13 Respondents. 14 15 Petitioner William Louis Huff filed a pro se Petition for a Writ of Habeas Corpus 16 (“PWHC”) pursuant to 28 U.S.C. § 2254 on May 3, 2019. (Doc. 1). Petitioner raises four 17 grounds for relief. In Ground One, Petitioner asserts an Eighth Amendment violation 18 because the terms of his sentence agreed to during plea negotiations are not being respected 19 by the Arizona Board of Executive Clemency (“ABOEC”). In Ground Two, Petitioner 20 alleges he has not been able to ask questions about his sentence computation in violation 21 of his Fifth Amendment due process rights. In Ground Three, Petitioner argues that Arizona 22 Statutes enacted after his conviction and sentence changed the length of imprisonment, and 23 that because he has already served one third of his minimum sentence under the “old code” 24 and “copper time” rules, his sentence violates the ex post facto clause. In Ground Four, 25 Petitioner alleges his prison time computation sheet incorrectly states that he was charged 26 with first degree murder and sentenced to life imprisonment. 27 Respondents filed an Answer contending that the PWHC is an unauthorized 28 successive petition, that it is untimely, and that neither statutory nor equitable tolling apply 1 to excuse the untimely petition. (Doc. 15). Respondents further argue that all of Petitioner’s 2 claims are procedurally barred by lack of exhaustion or procedural default. 3 Petitioner filed a Reply stating that he is not challenging his conviction or sentence, 4 and is not challenging his 1985 parole revocation. (Doc. 16). Petitioner clarified that what 5 he is challenging is his home arrest violation and related constitutional and civil rights 6 violations. 7 For the reasons discussed below, the Court will dismiss the § 2254 petition with 8 leave to file an amended petition, and will stay this action so that Petitioner may exhaust 9 his state court remedies. 10 I. FACTUAL AND PROCEDURAL BACKGROUND 11 A. Plea and Sentencing 12 The following summary is taken from this Court’s Order in CV 15-035-FRZ-BGM 13 (Doc. 9 at 2): 14 Because of the age of Petitioner’s criminal cases, records concerning those cases are not readily available online. News 15 accounts from 1967 reflect the following general background: in 1967, when he was sixteen years old, Petitioner pleaded 16 guilty to two murders: second degree murder in federal court, Huff Gets Life in Prison for Girl’s Slaying, Arizona Republic, 17 Oct. 17, 1967, at 25, and murder in Cochise County Superior Court, Huff Gets 40-to Life in 2nd Slaying Case, Tucson Daily 18 Citizen, Oct. 25, 1967, at 1. Petitioner was sentenced to life in the federal case and to 40 years to life in the state case with the 19 sentences to run concurrently. Id., see Huff v. Ryan, No. CV 11-0773-TUC-FRZ (BPV), 2012 WL 6804101, at *1 (D. Ariz. 20 Sept. 12, 2012). 21 Based on the Court’s review of the dockets in this case and Petitioner’s prior actions 22 in this Court, the Court notes the following: In 1982 the Arizona Board of Pardons and 23 Paroles paroled Petitioner from his state sentence to his federal sentence subject to lifetime 24 state parole.1 In 1983 he was released to a halfway house, was subsequently charged with 25 a parole violation and returned to federal prison, and then again released again to a halfway 26 house in 1984. Petitioner’s state parole was revoked in 1985 and he was returned to federal 27 11 See Doc. 18 in CV 11-773-TUC-FRZ-BPV and Doc. 7 in CV 19-044-TUC-FRZ; see 28 Doc. 9 in CV 15-035-FRZ-BGM for a more detailed explanation of Petitioner’s federal and state parole history. 1 custody. He was released to home arrest on January 4, 2016.2 On October 24, 2017 2 Petitioner was released from federal custody; i.e., his federal sentence was discharged and 3 he was transferred back to the Arizona Department of Corrections custody.3 On November 4 26, 2018 a warrant was issued for Petitioner for a home arrest violation and he was 5 reincarcerated in state prison. Petitioner’s home arrest was revoked by the ABOEC on 6 January 9, 2019. Petitioner states that he was most recently denied parole again on 7 September 18, 2019. (Doc. 18). 8 B. State Court Proceedings 9 In his PWHC, Petitioner states that he did not file a direct appeal to the Arizona 10 Court of Appeals and that “paperwork is in preparation.” (Doc. 1 at 2, 5). For each of his 11 four grounds for relief in the PWHC, Petitioner states that is currently preparing a Rule 32 12 and direct appeal. 13 Respondents state that Petitioner filed a petition for review with the Arizona Court 14 of Appeals on May 1, 2019. (Doc. 15 at 3; Ex. C). After Petitioner failed to file a copy of 15 the state court decision that he was seeking review of, the COA dismissed the action with 16 leave for Petitioner to seek post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. Id. 17 at Ex. F. 18 Respondents also state that Petitioner filed a Rule 32 Petition on June 20, 2019, but 19 that that the Cochise County Superior Court had not taken any action on it. (Doc. 15 at 2; 20 Ex. A). This Court reviewed the Cochise County Superior Court docket on March 26, 2020. 21 The docket shows that Petitioner’s Rule 32 was dismissed on November 6, 2019. On 22 February 24, 2020, Petitioner filed another Rule 32 petition and motion in the same action. 23 At the time of this Order, the Cochise County Superior Court had not issued any order as 24 to those pleadings. Accordingly, Petitioner’s state court proceedings are ongoing. 25 C. Federal Court Proceedings 26 i. First Habeas Petition 27 2 See https://corrections.az.gov/public-resources/inmate-datasearch (search last 28 name “Huff,” first initial “W”) (last accessed March 30, 2020). 3 See http://www.bop.gov/inmateloc/ at Inmate 07338-116 (last visited March 30, 2020). 1 On November 30, 2011, Petitioner filed a PWHC in this Court raising four grounds 2 for relief. (Doc. 1 in CV 11-773-TUC-FRZ-BPV). In Ground One, Petitioner alleged that 3 he was currently incarcerated due to the denial of due process in connection with revocation 4 of parole granted in 1985.4 In Ground Two, he alleged that “Parole Board members” 5 vindictively and in a retaliatory and racially discriminatory way extended his incarceration 6 for pre-textual reasons. In Ground Three, Petitioner alleged that the ABOEC violated his 7 Eighth Amendment right not to be subjected to cruel and unusual punishment by 8 retroactively applying new criteria at parole hearings.5 In Ground Four, Petitioner alleged 9 that the ABOEC violated the ex post facto clause by applying laws that were not in effect 10 at the time he was convicted and sentenced.6 11 The magistrate judge found that AEDPA’s one-year statute of limitations began to 12 run on the date on which the factual predicate of the claim could have been discovered 13 through the exercise of due diligence. (Doc. 18 at 4 in CV 11-773-TUC-FRZ-BPV). Thus, 14 because Petitioner’s claims were based on his 1985 parole revocation, the claims were 15 discoverable sometime in 1985. Id. at 6. However, because AEDPA did not go into effect 16 until April 24, 1996, Petitioner had one year from the Act’s enactment to file his habeas 17 petition—April 24, 1997. The Court found that Grounds One and Three were therefore 18 untimely. The Court further found that the remainder of Petitioner’s claims were based on 19 the ABOEC’s continued denial of parole and that these claims were also untimely because 20 the successive denials of parole which did not involve separate factual predicates did not 21 warrant separate statute of limitations calculations. Id. at 6–7. The Court further found that 22 neither statutory nor equitable tolling applied to excuse the untimeliness of the petition. Id. 23 at 8–9. The District Court ultimately adopted the magistrate judge’s report and 24 recommendation to dismiss the PWHC as untimely and dismissed the case with prejudice. 25 ii. Second Habeas Petition 26 On January 26, 2015, Petitioner filed a Motion for Special Action, which the Court 27 4 This appears to be the same claim as Ground Two of the present petition. 28 5 This appears to be the same claim as Ground One of the present petition. 6 This appears to be the same claim as Ground Three in the present petition. 1 docketed as a PWHC. (Doc. 1 in CV 15-035-TUC-FRZ-BGM). Petitioner was granted 2 leave to file an Amended Petition and asserted seven grounds for relief seeking 3 commutation of his state sentence. (Doc. 10 in CV 15-035-TUC-FRZ-BGM). Petitioner 4 then filed a response stating he was granted release to home arrest and that he wanted to 5 dismiss the portion of his case seeking commutation. (Doc. 14 in CV 15-035-TUC-FRZ- 6 BGM). The Court dismissed the First Amended Petition without prejudice and granted 7 leave for Petitioner to file a Second Amended Petition to set forth any claims for which he 8 was still seeking relief. (Doc. 15 in CV 15-035-TUC-FRZ-BGM). When Petitioner failed 9 to file a second amended petition, the Court dismissed the case without prejudice. (Doc. 17 10 in CV 15-035-TUC-FRZ-BGM). 11 iii. § 1983 Petition 12 On January 28, 2019 Petitioner filed a § 1983 civil rights action alleging three claims 13 for relief. (Doc. 1 in CV 19-044-TUC-FRZ). In Count One, Petitioner alleged that the 14 ABOEC violated his Eighth Amendment rights by using incorrect information on his 15 sentence computation sheet to extend his sentence beyond the term set by the trial court 16 and that his sentence was illegally changed to straight life. Petitioner also made arguments 17 regarding his eligibility for parole under the “copper time” rules. In Count Two Petitioner 18 alleged that he was charged with violating his home arrest condition that prohibited him 19 from having contact with persons under the age of 18. Petitioner claimed he had no 20 knowledge that visitors were coming and that if he had known, he would have explained 21 to his parole officer. Petitioner also alleged that he was subject to double punishment 22 because he had already spent 48 years in prison and 3 years on an ankle monitor. In Count 23 Three, Petitioner argued that because his case was high profile in Arizona, he could not 24 receive a fair parole hearing, and the ABOEC was vindictive and unlawfully keeping him 25 in prison. 26 The Court dismissed the § 1983 action for failure to state a claim because the 27 Arizona Department of Corrections was not a proper defendant, because Petitioner failed 28 to allege that defendant Charles Ryan had personally deprived Petitioner of his 1 constitutional rights, because Petitioner did not connect any of his allegations to named 2 Defendants Crabtree, Loew, Flores, or Settles, and because Petitioner’s claim for damages 3 was barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Doc. 7 in CV 19-044-TUC-FRZ). 4 The Court further noted that habeas proceedings are the proper mechanism for a prisoner 5 to challenge the legality or duration of his confinement, and that Petitioner must bring his 6 claims in a § 2254 petition. The Court further cautioned that before it may grant habeas 7 relief, a petitioner must first exhaust his remedies in state court, and that if Petitioner did 8 not exhaust his state remedies, his petition would be subject to dismissal. 9 iv. The Instant Petition 10 Petitioner filed his PWHC on May 3, 2019. (Doc. 1). He states that is not 11 challenging his judgment of conviction, but is challenging questionable decisions by the 12 parole board. Petitioner’s main argument appears to be that he was wrongly charged with 13 a home arrest violation and reincarcerated, and that the ABOEC is biased against him and 14 refuses to grant him parole.7 Petitioner requests that the Court grant modification of his 15 sentence to a lesser sentence. 16 In his Reply, Petitioner further clarifies that what he is challenging is his home arrest 17 violation and related constitutional and civil rights violations. (Doc. 16; see also Doc. 12). 18 Petitioner explains that his home arrest was revoked because he did not have prior 19 authorization or permission from his parole officer to have contact with a minor under age 20 18. However, Petitioner argues that his conditions of supervision state that he cannot have 21 contact with minors without a parent or legal guardian present “and/OR” prior 22 authorization or permission. (Doc. 12-1 at 6). In this instance, the minor’s parents and 23 Petitioner’s fiancé were all present and Petitioner was not left alone with the minor. Thus, 24 Petitioner argues that he did not actually violate his release conditions. Petitioner further 25 alleges that the ABOEC wrongly applied statutes that were not in effect at the time of his 26 original conviction and sentence, that the ABOEC allowed a convicted felon with
27 7 The Court notes that Petitioner appears to be confusing parole eligibility with an entitlement to parole. While under the old “Copper time” rules prisoners became parole- 28 eligible after serving one third of their minimum sentence, there is no entitlement to parole after serving a certain number of years. 1 questionable credibility to testify against him, and that an Arizona Department of 2 Corrections representative erroneously testified that Petitioner was convicted of prison 3 homicide in 1979. (Doc. 16 at 4–5). 4 II. DISCUSSION 5 A. Jurisdiction 6 As an initial matter, the Court must consider whether the present petition is a second 7 or successive petition. 8 [A] federal habeas petition is second or successive if the facts underlying the claim occurred by the time of the initial petition, 9 and if the petition challenges the same state court judgment as the initial petition. Stating the second criterion in the converse, 10 a petition is not second or successive if it is based on an intervening state court judgment—e.g., a new sentencing 11 determination—notwithstanding that the same claim challenging a conviction (or even the new sentence) could have 12 been brought in the first petition. Nor is a petition second or successive if the factual predicate for the claim accrued only 13 after the time of the initial petition. 14 Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018), cert. denied sub nom. Brown v. Hatton, 15 139 S. Ct. 841 (2019) (internal quotations and citations omitted). A federal habeas petition 16 is “successive” if the claim in the petition was or could have been previously adjudicated 17 on the merits in the prior petition and the reasserted claim was not previously dismissed 18 without prejudice to allow for its proper exhaustion in state court. Cooper v. Calderon, 274 19 F.3d 1270, 1272–73 (9th Cir. 2001). 20 A second or successive federal habeas corpus petition may not be filed in the district 21 court unless previously authorized by the appropriate federal court of appeals. See 28 22 U.S.C. 2244(b)(3)(A); Magwood v. Patterson, 561 U.S. 320, 331 (2010). If a petitioner 23 does not first obtain the court of appeals’ authorization, the district court lacks jurisdiction 24 to consider the second or successive petition. See United States v. Washington, 653 F.3d 25 1057, 1065 (9th Cir. 2011); Burton v. Stewart, 549 U.S. 147, 152–53 (2007). 26 Here, although Petitioner’s pleadings are not a model of clarity, the essence of what 27 Petitioner is trying to argue is that he was wrongly charged with a home arrest violation in 28 November 2018 and that the ABOEC wrongfully revoked his home arrest in January 2019. 1 Thus, these claims were not (and could not have been) raised in Petitioner’s prior habeas 2 petitions filed in 2011 and 2015. See Brown, 889 F.3d at 672 (“a factual predicate accrues 3 at the time the constitutional claim ripens—i.e., when the constitutional violation occurs”); 4 United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011) (“A prisoner whose 5 conviction and sentence were tested long ago may still file petitions relating to denial of 6 parole, revocation of a suspended sentence, and the like because such claims were not ripe 7 for adjudication at the conclusion of the prisoner’s first federal habeas proceeding.”); Hill 8 v. State of Alaska, 297 F.3d 895, 899 (9th Cir. 2002) (habeas petition challenging 9 calculation of mandatory parole release date was not successive or second petition so that 10 petitioner was not required to request permission from the Court of Appeals to file such 11 petition; such parole-related claim could not have been included in other petitions 12 challenging his conviction and sentence and district court never ruled on merits of parole- 13 related claims in previous petitions); see also Crouch v. Norris, 251 F.3d 720, 725 (8th Cir. 14 2001) (denying petitioner’s application for permission to file a successive petition as 15 unnecessary where petition challenging denial of parole did not raise “a claim challenging 16 his conviction or sentence that was or could have been raised in his earlier petition” and 17 was not otherwise an abuse of the writ and was therefore not “second or successive” for 18 purposes of § 2244(b)); Magwood, 561 U.S. at 324 (habeas petition not second or 19 successive where petitioner was challenging new judgment for the first time). Accordingly, 20 the Court finds that the instant petition is not an unauthorized second or successive petition, 21 and the Court has proper jurisdiction over it.8 22 B. Timeliness 23 The Court must consider also whether Petitioner’s PWHC is barred by the statute 24 of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir. 2002). The writ of habeas 25 corpus affords relief to persons in custody pursuant to the judgment of a state court in
26 8 However, to the extent that Petitioner’s claims in Grounds One through Four reassert claims that he already raised in his 2011 habeas petition and were dismissed by the Court 27 with prejudice, the present PWHC is an improper second/successive petition. And, because Petitioner has failed to obtain authorization from the Ninth Circuit to file a 28 second/successive petition, this Court does not have jurisdiction over the claims in Grounds One through Four under 28 U.S.C. § 2244(b)(3)(A). 1 violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2 2254(a). Petitions for habeas corpus are governed by the Antiterrorism and Effective Death 3 Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244. The AEDPA mandates that a one-year 4 statute of limitations applies to applications for a writ of habeas corpus by a person in state 5 custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations period 6 shall run from the latest of: 7 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 8 seeking such review; 9 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws 10 of the United States is removed, if the applicant was prevented from filing by such State action; 11 (C) the date on which the constitutional right asserted was 12 initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 13 retroactively applicable to cases on collateral review; or 14 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 15 exercise of due diligence. 16 28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). 17 Here, Petitioner’s claims concern a home arrest violation and the revocation of his 18 home arrest. The date on which the factual predicate of Petitioner’s home arrest violation 19 was discovered was either on November 25, 2018 (the date that probation officers visited 20 Petitioner and discovered the minor in the home) or November 26, 2018 (the date that the 21 arrest warrant issued). The date on which Petitioner’s home arrest was revoked by the 22 ABOEC was January 9, 2019. Pursuant to 28 U.S.C. § 2244(d)(1)(D), the statute of 23 limitations would expire one year from each of these incidents, thus making Petitioner’s 24 May 3, 2019 PWHC timely.9 See Gilardi v. Ryan, No. CV-17-00609-TUC-RM-BPV, 2018 25 9 However, to the extent that the PWHC raises any claims in Grounds One through Four 26 that were not already raised in the 2011 petition, the claims are untimely under 28 U.S.C. § 2244(d)(1). In Ground One, Petitioner alleges that the terms of his sentence agreed to in 27 his plea are not being respected by the ABOEC. In Ground Two, Petitioner alleges that his Fifth Amendment due process rights have been violated because he has been prevented 28 from asking questions about his sentence computation. In Ground Three, Petitioner argues that his sentence violates the ex post facto clause because he has already served 1/3 of the 1 WL 4112109, at *6 (D. Ariz. Aug. 29, 2018), report and recommendation adopted, 2018 2 WL 6696877 (D. Ariz. Dec. 20, 2018) (“the statutory timeline for any claims arising from 3 the revocation of probation would begin to run when the judgment that revoked the 4 petitioner’s probation became final.” (internal quotations and citation omitted)). 5 C. Exhaustion 6 Ordinarily, a district court may not grant a petition for a writ of habeas corpus filed 7 by a petitioner in state custody unless the petitioner has exhausted available state court 8 remedies. 28 U.S.C. § 2254(b)(1). The exhaustion inquiry focuses on the availability of 9 state remedies at the time the petition for writ of habeas corpus is filed in federal court. 10 O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Exhaustion of state remedies requires a 11 petitioner in state custody to fairly present his federal claims to the highest state court, 12 either on direct appeal or through state collateral proceedings, in order to give the highest 13 state court “the opportunity to pass upon and correct alleged violations of its prisoners’ 14 federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995); see also Sanders v. Ryder, 342 15 F.3d 991, 1000 (9th Cir. 2003), cert. denied, 541 U.S. 956 (2004). 16 In Arizona, unless a prisoner has been sentenced to death, the “highest court” 17 requirement is satisfied if the petitioner has presented his federal claims to the Arizona
18 minimum required under “copper time” rules. In Ground Four, Petitioner alleges tampering and altering of evidence because his computation sheet shows that his sentence was 19 changed from second degree murder to life imprisonment for first degree murder. The factual predicate for each of these claims occurred well before the present PWHC was filed 20 in May 2019, thus making the claims untimely. The Court notes that in some circumstances statutory or equitable tolling may be 21 applied to toll the statute of limitations. The one-year limitation period under AEDPA is statutorily tolled during the time in “which a properly filed application for State post- 22 conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see also Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 23 2002). In certain limited circumstances, AEDPA’s one-year filing deadline may be equitably tolled. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). A petitioner is entitled 24 to equitable tolling if he can demonstrate “‘(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way’” to prevent him 25 from timely filing a petition. Holland, 130 S. Ct. at 2562 (quoting Pace, 544 U.S. at 418). An extraordinary circumstance is one that is “beyond a prisoner’s control [that] make[s] it 26 impossible to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citations omitted). The Court finds that neither statutory nor equitable tolling apply to the 27 claims in Grounds One through Four. The Court declines to undertake any further analysis here because, as explained in this Order, the essence of Petitioner’s claims concern the 28 home arrest violation and revocation of his home arrest, not the claims set forth in Grounds One through Four. 1 Court of Appeals either on direct appeal or in a petition for post-conviction relief. Crowell 2 v. Knowles, 483 F. Supp. 2d 925 (D. Ariz. 2007). 3 A federal court may not “adjudicate mixed petitions for habeas corpus, that is, 4 petitions containing both exhausted and unexhausted claims.” Rhines v. Weber, 544 U.S. 5 269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518–519 (1982)). In Rhines, however, 6 the Supreme Court held that “a federal district court has discretion to stay [a] mixed petition 7 to allow the petitioner to present his unexhausted claims to the state court in the first 8 instance, and then to return to federal court for review of his perfected petition.” Id. at 271– 9 72; see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that district court 10 has the discretion to stay and hold in abeyance fully unexhausted petitions under Rhines). 11 This discretion is to be exercised under “limited circumstances,” because “routinely 12 granting stays would undermine the [Antiterrorism and Effective Death Penalty Act of 13 1996 (“AEDPA”)] goals of encouraging finality and streamlining federal habeas 14 proceedings.” Blake v. Baker, 745 F.3d 977, 981–82 (9th Cir. 2014); see also Yong v. I.N.S., 15 208 F.3d 1116, 1119 (9th Cir. 2000) (“It is true that a trial court has the inherent authority 16 to control its own docket and calendar . . . At the same time, habeas proceedings implicate 17 special considerations that place unique limits on a district court’s authority to stay a case 18 in the interests of judicial economy . . . Consequently, although a short stay may be 19 appropriate in a habeas case . . . we have never authorized, in the interests of judicial 20 economy, an indefinite, potentially lengthy stay in a habeas case.”). 21 Section 2254 proceedings are governed by AEDPA, which imposes a one-year 22 statute of limitations for the filing of a federal habeas petition. While that limitations period 23 is tolled “during the pendency of a ‘properly filed application for State post-conviction or 24 other collateral review,’ [28 U.S.C.] § 2244(d)(2), the filing of a petition for habeas corpus 25 in federal court does not toll the statute of limitations.” Rhines, 544 U.S. at 274–75. A stay 26 under Rhines “eliminates entirely any [AEDPA statute of] limitations issue with regard to 27 the originally unexhausted claims, as the claims remain pending in federal court[.]” King 28 v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). 1 Here, Petitioner’s PCR proceedings are ongoing in state court. While neither 2 Petitioner nor Respondents have provided this Court with any of the recent filings from the 3 Cochise County Superior Court proceedings, the claims in Petitioner’s habeas petition may 4 relate to the pending state petition and thus the habeas claims are not yet exhausted. 5 To avoid having to later seek leave from the Ninth Circuit to file a second or 6 successive habeas corpus case as to his pending state claims, Petitioner could voluntarily 7 dismiss or seek to voluntarily dismiss his current habeas corpus case without prejudice by 8 following the procedures set forth in Rule 41(a) of the Federal Rules of Civil Procedure. If 9 he did so, he could file a new habeas corpus case that includes all of the claims he wants 10 to raise, including claims from his pending PCR proceedings. However, although the one- 11 year statute of limitations for filing a habeas corpus case is tolled during the pendency of a 12 properly filed application for state post-conviction relief and a properly filed petition for 13 review of the denial of Rule 32 relief, the one-year statute of limitations is not tolled for 14 the period during the pendency of an improperly filed Rule 32 proceeding or an improperly 15 filed petition for review. Thus, if Petitioner chose to voluntarily dismiss this habeas action 16 and later file a new habeas corpus case, statute of limitations issues could potentially 17 prevent Petitioner from timely filing a new habeas corpus petition.10 18 Therefore, the Court finds that it is appropriate to stay this matter until the 19 completion of Petitioner’s state PCR proceedings. While Rhines instructs that “the district 20 court’s discretion in structuring the stay is limited by the timeliness concerns reflected in 21 10 See Mitchell, 791 F.3d at 1172 n.5 (“It is, of course, possible that in some cases a 22 petitioner could successfully return to federal court after he exhausts his claims, even without a stay. For example, a petitioner whose petition is dismissed under Lundy could 23 have time remaining on the AEDPA statute of limitations; that period is tolled during the pendency of ‘a properly filed application for State post-conviction or other collateral 24 review.’ 28 U.S.C. § 2244(d)(2) (emphasis added). Thus, he might exhaust his remaining claims and file a second habeas petition, all within the statute of limitations. But, because 25 a petition may be deemed not ‘properly’ filed after years of litigation, see, e.g., Evans v. Chavis, 546 U.S. 189, 200, 126 S. Ct. 846, 163 L.Ed.2d 684 (2006), it is generally 26 impossible for a petitioner to know in advance whether he will be successful in bringing his dismissed claims back to federal court. . . . Because of this ex ante danger that the 27 petitioner will not be granted the benefit of statutory tolling for some unforeseen reason, the denial of a motion to stay and abey a habeas petition should be treated as presumptively 28 dispositive of unexhausted claims.”). 1 AEDPA” and that a “petition should not be stayed indefinitely[,]” Petitioner is currently 2 actively pursuing relief in state court; thus, the stay will be limited in time. 544 U.S. at 277. 3 D. Conclusion 4 In sum, the Court finds that the instant petition is not technically an unauthorized 5 second or successive petition because Petitioner is not actually challenging his original 6 conviction or sentence. Nor is Petitioner challenging any of the parole revocation 7 proceedings that occurred prior to his home arrest revocation and that either were brought 8 or could have been brought in his previous habeas petitions. What Petitioner is challenging 9 is his home arrest violation that occurred in 2018 and the ABOEC decision to revoke his 10 home arrest in 2019. Petitioner makes this clear in his “In Depth Reply.” However, 11 Petitioner’s pleadings are not a model of clarity, and the four grounds of relief that he lists 12 in his § 2254 petition are not actually tied to the home arrest violation. Thus, the Court 13 finds that it is in the interests of justice to allow Petitioner to file a new § 2254 petition that 14 sets forth his claims for relief specifically as they relate to his home arrest violation and 15 revocation. 16 The Court further notes that Petitioner still has Rule 32 proceedings pending in state 17 court. The Court does not have copies of Petitioner’s most recent Rule 32 petition and 18 motion and thus it is not clear what claims Petitioner is asserting to the trial court. Because 19 these proceedings are still ongoing, Petitioner’s claims are unexhausted. As the Court 20 previously cautioned Petitioner, before the Court may grant habeas relief to a state prisoner, 21 the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); 22 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). If Petitioner has not exhausted his claims 23 in state court before filing a new § 2254 petition, his petition will be subject to dismissal. 24 28 U.S.C. § 2254(b)(2); see Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). 25 Thus, because Petitioner still has proceedings pending in Cochise County Superior 26 Court, this Court lacks jurisdiction to determine Petitioner’s unexhausted claims. The 27 Court recognizes that Petitioner is attempting to assert habeas claims regarding his home 28 arrest violation and revocation. But Petitioner must first properly exhaust those claims in 1 state court. Accordingly, the Court will dismiss the PWHC without prejudice so that 2 Petitioner may exhaust his claims in state court. The Court will also grant a limited-in-time 3 stay until Petitioner’s state PCR proceedings are complete. Petitioner may then file an 4 amended PWHC to assert his claims regarding the home arrest violation and revocation. 5 If Petitioner files an amended petition, he must use the court-approved form, set 6 forth each claim in a separate ground, and specifically allege in each ground the particular 7 federal constitutional right allegedly violated, with supporting facts. For example, if 8 Petitioner claims his due process rights are violated, he must also include the federal rights 9 violated, such as the Fifth and Fourteenth Amendments of the United States Constitution. 10 The amended petition must be retyped or rewritten in its entirety on the court approved 11 form and may not incorporate any part of the original Petition by reference. Any amended 12 petition submitted by Petitioner should be clearly designated as such on the face of the 13 document. An amended petition supersedes the original petition. Ferdik v. Bonzelet, 963 14 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 15 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as 16 nonexistent. Ferdik, 963 F.2d at 1262. 17 The Court expresses no opinion as to the merits of Petitioner’s claims. 18 III. CONCLUSION 19 Accordingly, based on the foregoing, IT IS HEREBY ORDERED as follows: 20 1. The PWHC is dismissed without prejudice, and with leave to amend, so that 21 Petitioner may exhaust his state court remedies. (Doc. 1). 22 2. This matter is hereby stayed until Petitioner’s state court proceedings are complete. 23 3. Petitioner must diligently pursue his state remedies. 24 4. Within 30 days of the date of this Order, Respondents must inform the Court of the 25 status of Petitioner’s proceeding in state court. Every 90 days after the filing of the 26 initial status report, Respondents must file a report regarding the status of the state 27 court proceedings. 28 5. Petitioner must file a notice with this Court within 30 days after the final disposition 1 of his state court proceedings. 2 6. Petitioner shall have 60 days after filing the notice that his state court proceedings 3 have concluded to file an amended PWHC. 4 7. The Court grants Petitioner leave to file a new § 2254 petition specifically asserting 5 grounds for relief that are related to his 2018 home arrest violation and 2019 home 6 arrest revocation. 7 8. The Clerk of Court must mail Petitioner the current court-approved form for filing 8 a “Petition Pursuant to 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in 9 State Custody (Non-Death Penalty).” 10 9. Respondents must file an Amended Answer within 40 days after Petitioner files his 11 amended petition, including copies of the state court documents for Petitioner’s 12 proceedings in Cochise County Superior Court and the Arizona Court of Appeals. 13 Respondents must not file a dispositive motion in place of an answer but may file 14 an answer limited to relevant affirmative defenses, including but not limited to, 15 statute of limitations, procedural bar, or non-retroactivity. Failure to set forth an 16 affirmative defense in an answer may be treated as a waiver of the defense. Day v. 17 McDonough, 547 U.S. 198, 209-11 (2006). 18 10. Petitioner may file a reply within 30 days from the date of service of the amended 19 answer. 20 11. Petitioner’s Motions (Docs. 12, 17, 18, 19, and 20) are denied. 21 12. If Petitioner fails to timely comply with every provision of this Order, the Court 22 may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 23 1258, 1260-61 (9th Cir. 1992). 24 Dated this 6th day of April, 2020. 25
tui ff □ 28 Eric J. Markovich . United States Magistrate Judge
-15-
Instructions for Filing a Petition Under 28 U.S.C. ' 2254 for a Writ of Habeas Corpus by a Person in State Custody in the United States District Court for the District of Arizona
1. Who May Use This Form. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence on the grounds that your conviction or sentence violates the United States Constitution or other federal law. You also may use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment. This form should not be used in death penalty cases. If you were sentenced to death, you are entitled to the assistance of counsel and you should request the appointment of counsel.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.5(a) provides that habeas corpus petitions must be filed on the court-approved form. The form must be typed or neatly handwritten. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages. The form, however, must be completely filled in to the extent applicable. You do not need to cite law. If you want to file a brief or arguments, you must attach a separate memorandum.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
4. The Filing Fee. The filing fee for this action is $5.00. If you are unable to pay the filing fee, you may request permission to proceed in forma pauperis by completing and signing the Application to Proceed In Forma Pauperis provided with the petition form. You must have an official at the prison or jail complete the certificate at the bottom of the application form. If the amount of money in your account exceeds $25.00, you must pay the $5.00 filing fee. LRCiv 3.5(b).
5. Original and Judge’s Copy. You must send an original plus one copy of your petition and of any other document submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing.
6. Where to File. You should file your petition in the division where you were convicted. See LRCiv 5.1(b). If you are challenging a judgment of conviction entered in Maricopa, Pinal, Yuma, La Paz, or Gila County, file your petition in the Phoenix Division. If you are challenging a judgment of conviction entered in Apache, Navajo, Coconino, Mohave, or Yavapai County, file your petition in the Prescott Division. If you are challenging a judgment of conviction entered in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file your petition in the Tucson Division. See LRCiv 5.1(b) and 77.1(a).
Revised 3/15/16 1 Mail the original and one copy of your petition with the $5.00 filing fee or the application to proceed in forma pauperis to:
Phoenix & Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
7. Change of Address. You must immediately notify the Court and respondents in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case.
8. Certificate of Service. You must provide the respondents with a copy of any document you submit to the Court (except the initial petition and application to proceed in forma pauperis). Each original document (except the initial petition and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the respondents and the address to which it was mailed. Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: Attorney for Respondent(s)
(Signature)
9. Amended Petition. If you need to change any of the information in the initial petition, you must file an amended petition. The amended petition must be written on the court-approved petition for writ of habeas corpus form. You may amend your pleading once without leave (permission) of Court within 21 days after serving it or within 21 days after any respondent has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, you must file a motion for leave to amend and lodge (submit) a proposed amended petition. LRCiv 15.1. An amended petition may not incorporate by reference any part of your prior petition. LRCiv 15.1(a)(2). Any grounds not included in the amended petition are considered dismissed.
10. Exhibits. If available, you should attach a copy of all state and federal court written decisions regarding the conviction you are challenging. Do not submit any other exhibits with the petition. Instead, you should paraphrase the relevant information in the petition. The respondents are obligated to provide relevant portions of the record. Any exhibits you attach should be individually labeled (e.g. “Exhibit 1,” “Exhibit 2,” etc.) and attached at the end of your petition. Exhibits should not be placed in the middle of your petition.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion.
12. Warnings.
a. Judgment Entered by a Single Court. You may challenge the judgment entered by only one court. Multiple counts which resulted in a judgment by the same court may be challenged in the same petition. If you wish to challenge judgments entered by more than one court, however, you must file separate petitions for each judgment.
b. Grounds for Relief. You must raise all grounds for relief that relate to this conviction or sentence. Any grounds not raised in this petition will likely be barred from being raised in any subsequent federal action.
c. Exhaustion. In order to proceed in federal court, you ordinarily must exhaust the remedies available to you in the state courts as to each claim on which you request action by the federal court. If you did not fairly present each of your grounds to the Arizona Court of Appeals, your petition may be dismissed. If you did not present one or more of your grounds to the Arizona Court of Appeals, explain why you did not.
FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your petition being stricken or dismissed by the Court. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the petition is being continued and number all pages.
3 Name and Prisoner/Booking Number ___________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code (Failure to notify the Court of your change of address may result in dismissal of this action.)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
_________________________________________ ,
(Full Name of Petitioner) ) ) Petitioner, CASE NO. __________________________________ v. (To be supplied by the Clerk)
__________________________________________ ,
(Name of the Director of the Department of Corrections, Jailor or authorized person having custody PETITION UNDER 28 U.S.C. § 2254 of Petitioner), BF YO R A A P EW RR SI OT N O IF N H STA AB TE EA S C C UO STR OP DU YS
Respondent, (NON-DEATH PENALTY) and
The Attorney General of the State of , ) Additional Respondent.
PETITION
1. (a) Name and location of court that entered the judgment of conviction you are challenging:
(b) Criminal docket or case number:
2. Date of judgment of conviction:
3. In this case, were you convicted on more than one count or crime? Yes G No G 530 Revised 3/15/16 1 4. Identify all counts and crimes for which you were convicted and sentenced in this case:
5. Length of sentence for each count or crime for which you were convicted in this case:
6. (a) What was your plea? Not guilty G Guilty G Nolo contendere (no contest) G
(b) If you entered a guilty plea to one count or charge, and a not guilty plea to another count or charge, give details:
(c) If you went to trial, what kind of trial did you have? (Check one) Jury G Judge only G
7. Did you testify at the trial? Yes G No G
8. Did you file a direct appeal to the Arizona Court of Appeals from the judgment of conviction? Yes G No G
If yes, answer the following:
(a) Date you filed:
(b) Docket or case number:
(c) Result:
(d) Date of result:
(e) Grounds raised:
Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court.
2 If yes, answer the following:
Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court.
10. Did you file a petition for certiorari in the United States Supreme Court? Yes G No G
Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court.
11. Other than the direct appeals listed above, have you filed any other petitions, applications or motions concerning this judgment of conviction in any state court? Yes G No G
3 (1) Date you filed:
(2) Name of court:
(3) Nature of the proceeding (Rule 32, special action or habeas corpus):
(4) Docket or case number:
(5) Result:
(6) Date of result:
(7) Grounds raised:
Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court.
(b) Second Petition.
(1) Date you filed:
(3) Nature of the proceeding (Rule 32, special action or habeas corpus):
Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court.
4 (1) Date you filed:
(3) Nature of the proceeding (Rule 32, special action or habeas corpus):
Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court.
(d) Did you appeal the action taken on your petition, application, or motion to the: Arizona Court of Appeals: Arizona Supreme Court:
(1) First petition: Yes G No G Yes G No G
(2) Second petition: Yes G No G Yes G No G
(3) Third petition Yes G No G Yes G No G
(e) If you did not appeal to the Arizona Court of Appeals, explain why you did not:
12. For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.
CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.
5 (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):
(b) Did you present the issue raised in Ground One to the Arizona Court of Appeals? Yes G No G
(c) If yes, did you present the issue in a: Direct appeal G First petition G Second petition G Third petition G
(d) If you did not present the issue in Ground One to the Arizona Court of Appeals, explain why:
(e) Did you present the issue raised in Ground One to the Arizona Supreme Court? Yes G No G
6 (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):
(b) Did you present the issue raised in Ground Two to the Arizona Court of Appeals? Yes G No G
(c) If yes, did you present the issue in a: Direct appeal G First petition G Second petition G Third petition G
(d) If you did not present the issue in Ground Two to the Arizona Court of Appeals, explain why:
(e) Did you present the issue raised in Ground Two to the Arizona Supreme Court? Yes G No G
7 (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):
(b) Did you present the issue raised in Ground Three to the Arizona Court of Appeals? Yes G No G
(c) If yes, did you present the issue in a: Direct appeal G First petition G Second petition G Third petition G
(d) If you did not present the issue in Ground Three to the Arizona Court of Appeals, explain why:
(e) Did you present the issue raised in Ground Three to the Arizona Supreme Court? Yes G No G
8 (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):
(b) Did you present the issue raised in Ground Four to the Arizona Court of Appeals? Yes G No G
(c) If yes, did you present the issue in a: Direct appeal G First petition G Second petition G Third petition G
(d) If you did not present the issue in Ground Four to the Arizona Court of Appeals, explain why:
(e) Did you present the issue raised in Ground Four to the Arizona Supreme Court? Yes G No G
9 13. Have you previously filed any type of petition, application or motion in a federal court regarding the conviction that you challenge in this petition? Yes G No G
If yes, give the date of filing, the name and location of the court, the docket or case number, the type of proceeding, the issues raised, the date of the court’s decision, and the result for each petition, application, or motion filed. Attach a copy of any court opinion or order, if available:
14. Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, as to the judgment you are challenging? Yes G No G
If yes, give the date of filing, the name and location of the court, the docket or case number, the type of proceeding, and the issues raised:
15. Do you have any future sentence to serve after you complete the sentence imposed by the judgment you are challenging? Yes G No G
(a) Name and location of the court that imposed the sentence to be served in the future:
(b) Date that the other sentence was imposed:
(c) Length of the other sentence:
(d) Have you filed, or do you plan to file, any petition challenging the judgment or sentence to be served in the future? Yes G No G
10 explain why the one-year statute of limitations in 28 U.S.C. ' 2244(d) does not bar your petition.*
*Section 2244(d) provides in part that: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
17. Petitioner asks that the Court grant the following relief:
or any other relief to which Petitioner may be entitled. (Money damages are not available in habeas corpus cases.)
I declare under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on (month, day, year).
__________________________________ Signature of Petitioner
___________________________________ ______________________________ Signature of attorney, if any Date