Jakscht 276523 v. Aguire

• Court: District Court, D. Arizona
• Decided: May 1, 2025
• Docket: 2:24-cv-00698
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael John Jakscht, No. CV-24-00698-PHX-MTL 10 Petitioner, ORDER 11 v. 12 Unknown Aguire, et al., 13 Respondents. 14 15 Petitioner Michael John Jakscht (“Petitioner”) was convicted in Maricopa County 16 Superior Court of four counts of manslaughter, five counts of aggravated assault, one count 17 of endangerment (imminent death), and as lesser included offenses, three counts of 18 endangerment (physical injury). (Doc. 9-1 at 37-44; Doc. 15 at 3.) He is currently serving 19 a twenty-six-year sentence for the convictions. (Doc. 15 at 3.) 20 On March 29, 2024, Petitioner submitted his Petition for Writ of Habeas Corpus 21 (the “Petition”) with this Court. (Doc. 1.) Magistrate Judge Alison S. Bachus issued a 22 Report and Recommendation (“R&R”), recommending the Petition be denied and 23 dismissed with prejudice. (Doc. 15.) Petitioner filed his Objections to the R&R (Doc. 16), 24 and Respondent filed its response (Doc. 17). The Court now rules. 25 I. BACKGROUND 26 The R&R recounts the factual and procedural history of this case, including the 27 underlying state court proceedings. (Doc. 15 at 1-5.) Neither party has objected to this 28 portion of the R&R, and therefore, the Court hereby accepts and adopts it. United States v. 1 Ramos, 65 F.4th 427, 433 (9th Cir. 2023) (citing United States v. Reyna-Tapia, 328 F.3d 2 1114, 1121 (9th Cir. 2003) (en banc)). 3 Petitioner raises four grounds for relief in his Petition. (Doc. 1.) The R&R 4 summarized the Petition as claiming: 5 GROUND ONE: The State erred in charging Manslaughter. 6 GROUND TWO: The State utili[z]ed a legally deficient warrant. 7 GROUND THREE: Juror misconduct. 8 GROUND FOUR: Batson challenge. 9 10 (Doc. 15 at 5 (citing Doc. 1 at 16-23).) The R&R recommends dismissing the Petition as 11 untimely by three and a half years and finding the statute of limitations could not be 12 equitably tolled. (Id. at 11-14.) It also recommends rejecting Petitioner’s actual innocence 13 claim because his “mere assertions do not establish factual innocence.” (Id. at 13.) 14 Petitioner presents four objections to the R&R. (Doc. 16.) First, Petitioner objects 15 to the R&R’s finding that the Petition is untimely. Although lacking in clarity, Petitioner 16 seems to argue his Petition is not time-barred under 28 U.S.C. § 2244(d)(1)(D) because he 17 recently discovered facts behind certain claims that relate to the “unaddressed motion” 18 alleging juror misconduct and Brady violations. (Id. at 1-2.) Next, Petitioner contends the 19 statute of limitations should be equitably tolled because he diligently pursued his rights and 20 the lack of case law in prison constitutes an “extraordinary circumstance.” (Id. at 3-4.) 21 Petitioner also raises the argument that the State’s “introduction of ‘opined’ testimony” 22 was insufficient to show he was under the influence of illicit drugs. (Id. at 2-3.) And finally, 23 Petitioner objects to the R&R’s finding that he has not established actual innocence. (Id. 24 at 4.) 25 II. LEGAL STANDARD 26 In reviewing an R&R, this Court “may accept, reject, or modify, in whole or in part, 27 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). 28 “[T]he district judge must review the magistrate judge’s findings and recommendations de 1 novo if objection is made, but not otherwise.” Reyna-Tapia, 328 F.3d at 1121 (emphasis in 2 original); see Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts need 3 not conduct “any review at all . . . of any issue that is not the subject of an objection”). 4 III. DISCUSSION 5 A. Timeliness 6 Petitioner objects to the R&R’s finding that his Petition is untimely. Petitioner first 7 argues the state court never addressed his motion regarding juror misconduct. (Doc. 16 at 8 1-2.) Petitioner also challenges the R&R’s finding that he is not entitled to equitable tolling. 9 (Id. at 3-4.) Petitioner’s § 2254 petition is governed by the Anti-Terrorism and Effective 10 Death Penalty Act of 1996 (“AEDPA”). Pursuant to AEDPA, a state prisoner must file 11 their federal habeas petition within one year of the latest of: 12 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 13 seeking such review; 14 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws 15 of the United States is removed, if the applicant was prevented from filing by such State action; 16 (C) the date on which the constitutional right asserted was 17 initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 18 retroactively applicable to cases on collateral review; or 19 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 20 exercise of due diligence. 21 28 U.S.C. § 2244(d)(1). 22 The R&R determined that AEDPA’s one-year limitations period began on February 23 24, 2015, the day after the time to file a writ of certiorari with the U.S. Supreme Court 24 expired and Petitioner’s convictions became final. (Doc. 15 at 6, 8.) The statute of 25 limitations then ran for 141 days until it was statutorily tolled on July 15, 2015, when 26 Petitioner filed his first notice of post-conviction relief (“PCR”).1 (Id. at 8.) Petitioner’s 27 1 AEDPA’s one-year limitation period is tolled for the period “during which a properly 28 filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending[.]” 28 U.S.C. § 2244(d)(2). 1 first round of PCR proceedings ended on February 12, 2020, the day after the Arizona 2 Supreme Court denied his petition for review. (Id. at 8-9.) And the limitations period 3 resumed until it expired, 224 days later, on September 23, 2020. (Id. at 9.) As a result, the 4 Magistrate Judge determined Petitioner’s habeas petition—filed on March 29, 2024—was 5 untimely by approximately three and a half years. (Id.)2 6 1. Commencement of the Limitations Period 7 Petitioner appears to argue the commencement date for the limitations period under 8 28 U.S.C. § 2244(d)(1) should begin on a later date when he discovered new facts regarding 9 jurors “discussing and researching materials relating to the case outside of the court.” (Doc. 10 16 at 1-2.) Although Petitioner does not provide the Court an exact date, he argues he 11 presented these facts in a motion filed on April 30, 2021, but it “was never provided judicial 12 review.” (Id. at 1.) Petitioner contends certain records “vary from the attorney’s record, the 13 court’s, and the prosecutor’s,” and these “discrepancies constitute Brady material.” (Id. at 14 1-2.) He then states that he “was advised he had to wait until the avenues being used at the 15 time until he could file it anew.” (Id. at 2.) 16 Whether the Petition is timely under 28 U.S.C. § 2244(d)(1)(D) depends on what 17 date “the factual predicate of the claim . . . could have been discovered through the exercise 18 of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Indeed, “[t]he ‘due diligence’ clock starts 19 ticking when a person knows or through diligence could discover the vital facts, regardless 20 of when their legal significance is actually discovered.” Ford v. Gonzalez, 683 F.3d 1230, 21 1235 (9th Cir. 2012). And critically, “Section 2244(d)(1)(D) provides a petitioner with a 22 later accrual date than section 2244(d)(1)(A) only if vital facts could not have been known 23 by the date the appellate process ended.” Id. (internal citations and quotations omitted) 24 (emphasis added).

25 2 Petitioner filed four more PCR notices, and each was dismissed as untimely. (Doc. 15 at 4-5.) Petitioner does not object to the R&R’s finding that his untimely, successive PCR 26 petitions do not statutorily toll the limitations period. (Id. at 9.) The Court agrees with the R&R. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (“On petitioner’s theory, a state 27 prisoner could toll the statute of limitations at will simply by filing untimely state postconviction petitions. This would turn § 2244(d)(2) into a de facto extension 28 mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive delay.”). 1 Petitioner represents that he filed the motion alleging juror misconduct in 2021, 2 based on facts he allegedly discovered as early as 2013. (Doc. 16 at 1; Doc. 1 at 20.) 3 Therefore, Petitioner was aware of the “vital facts” at the time his conviction became final 4 on February 23, 2015—the date in which “the appellate process ended.” Ford, 683 F.3d at 5 1235 (citation omitted). As a result, Petitioner is not entitled to a later commencement date 6 of the limitations period under 28 U.S.C. § 2244(d)(1)(D).3 See Hopson v. Ryan, No. CV- 7 13-1396-PHX-DJH (ESW), 2015 WL 10662701, at *3 (D. Ariz. Sept. 22, 2015) (finding 8 28 U.S.C. § 2244(d)(1)(D) did not apply because the petitioner was aware of the vital facts 9 at the time his convictions became final), report and recommendation adopted, 2016 WL 10 14280899 (D. Ariz. April 12, 2016). 11 In any case, Petitioner’s argument that the state court never reviewed the motion 12 alleging juror misconduct is not supported by the record. On July 7, 2021, the Arizona 13 superior court dismissed Petitioner’s third “Notice for Post-Conviction Relief for Newly 14 Discovered Evidence of Possible Juror Misconduct Dated April 30, 2021” as successive 15 and untimely. (Doc. 9-5 at 121-22.) In its order, the superior court described Petitioner’s 16 arguments regarding potential juror misconduct as “not new” and explained they were 17 rejected by the court in an order filed on February 24, 2021. (Id. at 122.)4 Further, the court 18 noted Petitioner raised the same issue and attached the same “Supplemental Motion for 19 New Trial” to a submission filed on December 8, 2020. (Id.) The court explained that it 20 previously rejected the argument, reiterated that no motion was filed in 2013, and 21 determined that relief on the juror misconduct claim was precluded as a result. (Id. (“The 22 failure to raise a juror misconduct claim in a Rule 24.1(c)(3) motion generally precludes 23 relief in post-conviction relief proceedings.”).) 24 3 As explained in the R&R, even assuming arguendo the commencement date of the 25 limitations period is December 31, 2019—the date Petitioner allegedly learned that the superior court did not address his 2013 motion—his Petition would nonetheless be 26 untimely by one year. (Doc. 15 at 7-8.) Petitioner does not specifically object to this portion of the R&R, and the Court concurs with the Magistrate Judge’s determination. 27 4 In the February 2021 order, the Arizona superior court dismissed Petitioner’s second PCR notice, observing that “[t]here is no evidence in the court docket that such a motion was 28 ever filed before the Court[,]” and even if it had been, the motion “would have been untimely.” (Doc. 9-4 at 123.) 1 Accordingly, because Petitioner has not demonstrated he is entitled to a later 2 commencement date of the limitations period under 28 U.S.C. § 2244(d)(1)(D), the Court 3 will overrule his first objection. 4 2. Equitable Tolling 5 Turning to Petitioner’s second objection: he argues AEDPA’s one-year limitations 6 period should be equitably tolled. (Doc. 16 at 3-4.) AEDPA’s statute of limitations may 7 only be tolled in limited circumstances. Holland v. Florida, 560 U.S. 631, 649 (2010); see 8 also Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). For the limitations period to be 9 equitably tolled, a petitioner must show: “(1) that he has been pursuing his rights diligently, 10 and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418. In 11 most cases, equitable tolling is unavailable. Miranda v. Castro, 292 F.3d 1063, 1066 (9th 12 Cir. 2002) (“Indeed, the threshold necessary to trigger equitable tolling [under AEDPA] is 13 very high, lest the exceptions swallow the rule.”) (quotations and citation omitted) 14 Petitioner contends he satisfies both prongs because the appellate record “is evident 15 of his diligence” and the prison’s lack of case law constitutes an extraordinary 16 circumstance. (Doc. 16 at 3-4.) As to the first prong, Petitioner’s broad assertion fails to 17 satisfy the requisite showing of diligence, as Petitioner provides no explanation for his 18 untimely filing of the Petition on March 29, 2024, nearly three and a half years after the 19 statute of limitations expired. And the mere fact that he filed multiple successive and 20 untimely PCR notices in the state courts does little to account for why he sat on his rights 21 for years before filing a habeas petition with this Court. See Pace, 544 U.S. at 418-19; 22 Canez v. Ryan, 25 F. Supp. 3d 1250, 1264 (D. Ariz. 2014) (“If diligent, upon becoming 23 belatedly aware of the denial of his post-conviction relief, or following the denial of his 24 petition for review, he could have prepared a basic form habeas petition and filed it to 25 satisfy the AEDPA deadline.”) (citation and quotations omitted). 26 Even assuming Petitioner satisfies the diligence requirement, however, he fails to 27 demonstrate that extraordinary circumstances prevented him from timely filing the 28 Petition. Petitioner argues his inability to access case law constitutes an extraordinary 1 circumstance because he cannot “access any cases to support his position in Federal Court.” 2 (Doc. 16 at 3.)5 Petitioner further argues “[i]t’s been opined that no other prison system in 3 the country is hobbled as Arizona’s is,” leading to “no AEDPA case law” in the prison 4 library. (Id. at 3-4.) 5 A lack of AEDPA resources in a prison library may constitute an extraordinary 6 circumstance in some cases. See Whalem/Hunt v. Early, 233 F.3d 1146, 1147-48 (9th Cir. 7 2000) (reversing and remanding a district court’s denial of a habeas petition as untimely 8 because the petitioner alleged he did not have access to legal materials describing AEDPA 9 and he had no knowledge of any limitations period). For the limitations period to be 10 equitably tolled on this theory, however, a petitioner must demonstrate that a lack of these 11 materials rendered it “impossible” to timely file the petition. Chaffer v. Prosper, 592 F.3d 12 1046, 1049 (9th Cir. 2010) (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). 13 In the present case, Petitioner has not identified how a lack of prison resources made 14 it impossible for him to timely file his Petition. See, e.g., Cunningham v. Shinn, No. CV- 15 21-08141-PCT-GMS, 2022 WL 17552439, at *2 (D. Ariz. Dec. 9, 2022) (finding equitable 16 tolling did not apply because the petitioner failed to explain how an inability to access case 17 law in an Arizona prison made it impossible to file a federal habeas petition within the 18 applicable statutory time period); Brown v. Schriro, No. CV-06-2962-PHX-PGR (JI), 2008 19 WL 2225783, at *6 (D. Ariz. May 27, 2008) (same). Indeed, “[o]rdinary prison limitations” 20 are not considered extraordinary circumstances. Ramirez, 571 F.3d at 998. 21 Because Petitioner has not satisfied either requirement for equitable tolling, the 22 Court overrules Petitioner’s second objection. 23 B. Introduction of Opined Testimony 24 Petitioner’s third objection is vague and seems to challenge the “introduction of 25 ‘opined’ testimony” from the State. (Doc. 16 at 2-3.) Petitioner argues he only had 26 therapeutic levels of drugs in his bloodstream, “which is consistant [sic] with use of a 27 5 The Court notes Petitioner’s use of authority from the Ninth Circuit and U.S. Supreme 28 Court in his Petition, which undermines his contention that the prison library does not provide any case law. (See Doc. 1 at 19-21.) 1 decongestant sold over the counter, or the dietary suppliment [sic] he used.” (Id. at 2.) He 2 then contends that this “blood test” evidence should be given more evidentiary value than 3 the State’s proffered testimony and “mere opining on a subject.” (Id. at 2-3.) 4 Petitioner does not specify what testimony he is challenging, nor does he offer any 5 citation to the record or identify which portions of the R&R he is objecting to. To the extent 6 Petitioner generally asserts this testimony should not have been introduced, his objection 7 is not specific to the R&R’s finding that the Petition is untimely. Because Petitioner is not 8 objecting to the R&R, this third argument amounts to no objection at all.6 See Augustiniak 9 v. Ryan, No. CV-18-03977, 2020 WL 1685556, at *2 (D. Ariz. Apr. 7, 2020) (stating that 10 district judges do not need to review an objection to the R&R that is general and 11 non-specific). 12 C. Actual Innocence 13 That brings the Court to Petitioner’s fourth and final objection: whether he has 14 established actual innocence. (Doc. 16 at 4.) 15 In federal habeas cases, “actual innocence” is not an independent constitutional 16 claim, but rather, “if proved, serves as a gateway through which a petitioner may pass 17 whether the impediment is a procedural bar . . . [or] expiration of the AEDPA statute of 18 limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (emphasis added). “[A]ctual 19 innocence means factual innocence, not mere legal insufficiency.” Bousley v. United 20 States, 523 U.S. 614, 623 (1998) (quotations omitted). To establish actual innocence, a 21 “petitioner must show that it is more likely than not that no reasonable juror would have 22 convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). 23 Petitioner argues that “while in prison, [he] was by due diligence, able to learn of 24 the diet suppl[e]ment exhibited in the petition.” (Doc. 16 at 4.) He then offers to “provide 25 Affidavits from reputable persons attesting to his use of that product, during that time” to 26 show that he “was overcharged.” (Id.) Petitioner attached his own affidavit to his 27 objections, explaining that he used a dietary supplement called “Detonate” from 2008 to

28 6 To the extent Petitioner claims he is actually innocent based on this evidence, that argument fails for the reasons set forth below. 1 2010, and that he was unaware “it contained ingredients causing positive tests for 2 amphetamines and methamphetamines.” (Id. at 6.) 3 To the extent Petitioner contends this dietary supplement is new evidence in support 4 of his actual innocence claim, his argument fails. Post-conviction evidence serving only to 5 “undercut the evidence presented at trial” does not demonstrate actual innocence. Carriger 6 v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997). And the evidence Petitioner offers “does not 7 undermine the structure of the prosecution’s case” or excuse Petitioner’s untimely filing of 8 the Petition. Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999). Petitioner’s self-serving 9 affidavit also does not qualify as reliable evidence of his factual innocence, and he has not 10 identified any other evidence in the record to that effect. As the Magistrate Judge correctly 11 observed, Petitioner simply has not demonstrated “it is more likely than not that no 12 reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 13 U.S. at 327; see also United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010) (“[S]hort 14 of proof of actual innocence, claims solely based on new evidence are generally not 15 cognizable on habeas.”). 16 Accordingly, Petitioner’s fourth objection is overruled. 17 D. Petitioner’s Request for an Evidentiary Hearing 18 At the end of his objections, Petitioner requests an evidentiary hearing. (Doc. 16 at 19 5.) Petitioner represents (1) that “[a]ffidavits can be obtained to further establish the use of 20 the dietary suppl[e]ment exhibited in the petition,” (2) that he “has an expert witness to go 21 to the mechanical unworthiness of the truck in question,” and (3) that he “is willing to 22 perform an inspection of that truck if provided an opportunity.” (Id.) 23 The standard for a § 2254 petitioner to expand the state-court record by way of an 24 evidentiary hearing “is a stringent one.” Shinn v. Ramirez, 596 U.S. 366, 371 (2022). “If a 25 prisoner has failed to develop the factual basis of a claim in State court proceedings, a 26 federal court shall not hold an evidentiary hearing on the claim unless the prisoner satisfies 27 one of two narrow exceptions, and demonstrates that the new evidence will establish his 28 innocence by clear and convincing evidence.” Id. (cleaned up). For one of the “two narrow 1 exceptions” to be triggered, the petitioner’s claim either “must rely on (1) a new and 2 previously unavailable rule of constitutional law made retroactively applicable by this 3 Court, or (2) a factual predicate that could not have been previously discovered through the 4 exercise of due diligence.” Id. at 381 (cleaned up). And even if all these requirements are 5 satisfied, a federal habeas court is still not required to hold a hearing or take any evidence. 6 Id.; see Schiro v. Landrigan, 550 U.S. 465, 474 (2007). 7 Petitioner has not demonstrated that either exception applies to his claims. He does 8 not contend that his claim relies on a new and previously unavailable rule of constitutional 9 law. And he does not argue that the factual predicate to his claim could not have been 10 previously discovered through the exercise of due diligence. In fact, in his Petition, he 11 alleges he discovered new evidence regarding this dietary supplement in 2015. (Doc. 1 at 12 16.) As a result, Petitioner fails to demonstrate the dietary supplement evidence is “a factual 13 predicate that could not have been previously discovered through the exercise of due 14 diligence.” Shinn, 596 U.S. at 381 (quoting 28 U.S.C. § 2254(e)(2)(A)(ii)). 15 In essence, Petitioner seeks to relitigate his case—reciting the same arguments he 16 raised in the Petition and before the Arizona state courts. (See generally Doc. 1; Doc. 9-4 17 at 122 (denying Petitioner’s claim that the trial court “erroneously precluded Defendant 18 from testifying about his use of diet pills”).) Therefore, the Court will deny Petitioner’s 19 request for an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011) 20 (stating that although state prisoners may occasionally submit new evidence in federal 21 court, “AEDPA’s statutory scheme is designed to strongly discourage them from doing 22 so”). 23 IV. CONCLUSION 24 Accordingly, 25 IT IS ORDERED that Petitioner’s objections (Doc. 16) are overruled and the 26 Report and Recommendation (Doc. 15) is accepted and adopted. 27 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1) 28 is denied and dismissed with prejudice. 1 IT IS FURTHER ORDERED denying the issuance of a certificate of appealability 2|| and leave to proceed in forma pauperis on appeal because Petitioner has not demonstrated 3 || that reasonable jurists could find the ruling debatable or conclude that the issues presented 4|| are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 5|| U.S. 322, 327 (2003); 28 U.S.C. § 2253(c). 6 IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment and □□ close this case. 8 Dated this 1st day of May, 2025. 9 Micha T. Siburde Michael T. Liburdi 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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