1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jay Randall Jones, Jr., No. CV-20-00526-PHX-DWL
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 On March 11, 2020, Petitioner filed a petition for a writ of habeas corpus under 28 16 U.S.C. § 2254 (the “Petition”). (Doc. 1.) On August 13, 2020, Magistrate Judge Fine 17 issued a Report and Recommendation (“R&R”) concluding the Petition should be 18 dismissed with prejudice. (Doc. 15.) Afterward, Petitioner filed objections to the R&R 19 (Doc. 18), Respondents filed a response (Doc. 19), and Petitioner filed a supplement (Doc. 20 20). For the following reasons, the Court will overrule Petitioner’s objections, adopt the 21 R&R, and terminate this action. 22 I. Background 23 The Underlying Crime. Early in the morning on an unspecified date in March 2014, 24 police officers responded to a silent alarm at a gun shop. (Doc. 15 at 2.) Petitioner, who 25 was present at the scene, fled on foot when he noticed the officers. (Id. at 3.) During the 26 ensuing chase, Petitioner fired his gun at the pursuing officers. (Id.) The bullet missed and 27 went through the wall of a nearby mobile home, nearly striking the home’s occupant. (Id.) 28 Later, Petitioner fired another shot at an officer, which also missed. (Id.) Petitioner 1 eventually raised his hands and dropped his gun. (Id.) Officers found approximately 2 $40,000 worth of guns stuffed in duffel bags in and around the gun shop. (Id.) 3 Trial Court Proceedings. In July 2014, a grand jury charged Petitioner with one 4 count of attempted murder, three counts of aggravated assault, one count of discharge of a 5 firearm at a structure, two counts of burglary, one count of theft, and one count of 6 endangerment. (Id. at 2.) 7 During trial, Petitioner was represented by counsel. (Id. at 3.) The judge granted a 8 judgment of acquittal on one of the aggravated assault counts and the jury voted to convict 9 on the remaining counts. (Id.) Petitioner was sentenced to multiple terms of imprisonment 10 totaling 25 years. (Id. at 1.) 11 Direct Appeal. Petitioner timely appealed his convictions and sentence. (Id. at 3.) 12 In his direct appeal, Petitioner asserted that (1) there was insufficient evidence supporting 13 one of the aggravated-assault counts and the firearm-discharge count; and (2) he was 14 denied the right to a unanimous verdict on certain counts because the verdict forms and 15 jury instructions failed to identify the victim. (Id.) 16 On February 18, 2016, the Arizona Court of Appeals affirmed Petitioner’s 17 convictions but remanded to resolve a discrepancy between the sentencing minute entry 18 and the trial judge’s oral pronouncement of sentence. (Id.) Petitioner did not seek review 19 in the Arizona Supreme Court. (Id. at 4.) On remand, the trial court clarified its sentences 20 for various terms of imprisonment totaling 25 years. (Id.) 21 PCR Proceedings—Trial Court. On April 7, 2016, Petitioner filed a timely notice 22 of post-conviction relief (“PCR”). (Id.) 23 On September 21, 2016, Petitioner’s court-appointed counsel notified the court that, 24 having reviewed the record, he could not identify any colorable issues. (Id.) 25 On December 8, 2016, Petitioner filed a pro se PCR petition. (Id.) In it, he raised 26 the following claims: (1) there was insufficient evidence supporting certain counts of 27 conviction; (2) prosecutorial misconduct; (3) the trial court failed to give a “multiple acts” 28 statement, thereby violating his right to a unanimous verdict on certain counts; (4) his 1 sentences violated the Eighth Amendment; (5) the bail imposed violated the Eighth 2 Amendment; and (6) his trial counsel was ineffective. (Id.) 3 On March 22, 2017, the trial court dismissed the PCR petition. (Id.) 4 PCR Proceedings—Appellate. On June 4, 2018, Petitioner filed a timely petition 5 for review in the Arizona Court of Appeals. (Id.) 6 On September 11, 2018, the Court of Appeals granted review but denied relief. (Id.) 7 On October 1, 2018, Petitioner “filed a motion for telephonic attendance even 8 though no court dates were set and the court of appeals had already granted review and 9 denied relief.” (Id. at 5.) 10 On October 10, 2018, the Court of Appeals denied the motion. (Id.) 11 On October 30, 2018, the Court of Appeals issued its mandate. (Id. at 5.) 12 On October 19, 2019—that is, nearly a year later—Petitioner filed a change of 13 address form with the Court of Appeals. (Id.) 14 On February 18, 2020, Petitioner sent a letter to the Court of Appeals requesting a 15 status update. (Id.) 16 On February 21, 2020, the Court of Appeals sent a copy of the docket to Petitioner. 17 (Id.) 18 The Petition. As noted, Petitioner filed the Petition in March 2020. (Doc. 1.) It 19 raises five grounds for relief: (1) insufficient evidence supports Petitioner’s conviction for 20 attempted murder, in violation of Petitioner’s due process rights; (2) insufficient evidence 21 supports Petitioner’s convictions for discharging a firearm at a residence and 22 endangerment, in violation of Petitioner’s due process rights; (3) prosecutorial misconduct 23 occurred, in violation of Petitioner’s due process rights; (4) the trial court failed “to provide 24 a multiple acts statement,” in violation of Petitioner’s right to a unanimous jury verdict; 25 and (5) the sentences violate the Eighth Amendment. (Id. at 5-6.) 26 The R&R. The R&R concludes the Petition should be dismissed with prejudice 27 because it was filed outside AEDPA’s one-year statute of limitations. (Id. at 9-14.) 28 Specifically, the R&R explains that Petitioner’s state-court conviction became final on 1 October 17, 2018 (i.e., 30 days after the Court of Appeals denied relief in the PCR appeal), 2 the one-year statute of limitations expired on October 16, 2019, and Petitioner’s habeas 3 filing in March 2020 therefore came too late. (Id. at 9-10.) Next, the R&R explains that 4 statutory tolling is inapplicable because Petitioner has already received credit for the entire 5 period in which his direct appeal and PCR proceedings were pending. (Id. at 8-10.) As for 6 equitable tolling, the R&R states that “Petitioner’s argument for equitable tolling is based 7 entirely on his claimed mistaken belief that his PCR proceedings were still pending in the 8 Arizona Court of Appeals” and concludes this argument is unavailing because (1) “it was 9 not reasonable for Petitioner to conclude that his PCR proceedings were still pending in 10 the Arizona Court of Appeals after the September 11, 2018, decision granting review and 11 denying relief” and “[i]t certainly was not reasonable for Petitioner to conclude that his 12 PCR proceedings were still pending in the Arizona Court of Appeals after receiving the 13 October 30, 2018, mandate from the court of appeals,” (2) Petitioner’s misinterpretation of 14 the legal documents issued by the Court of Appeals does not, in any event, qualify as the 15 sort of “extraordinary circumstance” that might trigger equitable tolling, and (3) Petitioner 16 also failed to show “reasonable diligence” because, even assuming he misinterpreted some 17 legal documents, he “waited over fifteen months after the court of appeals’ mandate to 18 inquire at all regarding the status of the proceedings.” (Id. at 10-13.) Finally, the R&R 19 concludes that Petitioner may not take advantage of “the actual innocence/Schlup gateway” 20 because he merely raises challenges to the sufficiency of the evidence and “has not asserted 21 actual innocence or supported his Petition with any new reliable evidence of actual 22 innocence as required by the applicable caselaw.” (Id. at 13-14.) 23 II. Legal Standard 24 A party may file written objections to an R&R within fourteen days of being served 25 with a copy of it.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jay Randall Jones, Jr., No. CV-20-00526-PHX-DWL
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 On March 11, 2020, Petitioner filed a petition for a writ of habeas corpus under 28 16 U.S.C. § 2254 (the “Petition”). (Doc. 1.) On August 13, 2020, Magistrate Judge Fine 17 issued a Report and Recommendation (“R&R”) concluding the Petition should be 18 dismissed with prejudice. (Doc. 15.) Afterward, Petitioner filed objections to the R&R 19 (Doc. 18), Respondents filed a response (Doc. 19), and Petitioner filed a supplement (Doc. 20 20). For the following reasons, the Court will overrule Petitioner’s objections, adopt the 21 R&R, and terminate this action. 22 I. Background 23 The Underlying Crime. Early in the morning on an unspecified date in March 2014, 24 police officers responded to a silent alarm at a gun shop. (Doc. 15 at 2.) Petitioner, who 25 was present at the scene, fled on foot when he noticed the officers. (Id. at 3.) During the 26 ensuing chase, Petitioner fired his gun at the pursuing officers. (Id.) The bullet missed and 27 went through the wall of a nearby mobile home, nearly striking the home’s occupant. (Id.) 28 Later, Petitioner fired another shot at an officer, which also missed. (Id.) Petitioner 1 eventually raised his hands and dropped his gun. (Id.) Officers found approximately 2 $40,000 worth of guns stuffed in duffel bags in and around the gun shop. (Id.) 3 Trial Court Proceedings. In July 2014, a grand jury charged Petitioner with one 4 count of attempted murder, three counts of aggravated assault, one count of discharge of a 5 firearm at a structure, two counts of burglary, one count of theft, and one count of 6 endangerment. (Id. at 2.) 7 During trial, Petitioner was represented by counsel. (Id. at 3.) The judge granted a 8 judgment of acquittal on one of the aggravated assault counts and the jury voted to convict 9 on the remaining counts. (Id.) Petitioner was sentenced to multiple terms of imprisonment 10 totaling 25 years. (Id. at 1.) 11 Direct Appeal. Petitioner timely appealed his convictions and sentence. (Id. at 3.) 12 In his direct appeal, Petitioner asserted that (1) there was insufficient evidence supporting 13 one of the aggravated-assault counts and the firearm-discharge count; and (2) he was 14 denied the right to a unanimous verdict on certain counts because the verdict forms and 15 jury instructions failed to identify the victim. (Id.) 16 On February 18, 2016, the Arizona Court of Appeals affirmed Petitioner’s 17 convictions but remanded to resolve a discrepancy between the sentencing minute entry 18 and the trial judge’s oral pronouncement of sentence. (Id.) Petitioner did not seek review 19 in the Arizona Supreme Court. (Id. at 4.) On remand, the trial court clarified its sentences 20 for various terms of imprisonment totaling 25 years. (Id.) 21 PCR Proceedings—Trial Court. On April 7, 2016, Petitioner filed a timely notice 22 of post-conviction relief (“PCR”). (Id.) 23 On September 21, 2016, Petitioner’s court-appointed counsel notified the court that, 24 having reviewed the record, he could not identify any colorable issues. (Id.) 25 On December 8, 2016, Petitioner filed a pro se PCR petition. (Id.) In it, he raised 26 the following claims: (1) there was insufficient evidence supporting certain counts of 27 conviction; (2) prosecutorial misconduct; (3) the trial court failed to give a “multiple acts” 28 statement, thereby violating his right to a unanimous verdict on certain counts; (4) his 1 sentences violated the Eighth Amendment; (5) the bail imposed violated the Eighth 2 Amendment; and (6) his trial counsel was ineffective. (Id.) 3 On March 22, 2017, the trial court dismissed the PCR petition. (Id.) 4 PCR Proceedings—Appellate. On June 4, 2018, Petitioner filed a timely petition 5 for review in the Arizona Court of Appeals. (Id.) 6 On September 11, 2018, the Court of Appeals granted review but denied relief. (Id.) 7 On October 1, 2018, Petitioner “filed a motion for telephonic attendance even 8 though no court dates were set and the court of appeals had already granted review and 9 denied relief.” (Id. at 5.) 10 On October 10, 2018, the Court of Appeals denied the motion. (Id.) 11 On October 30, 2018, the Court of Appeals issued its mandate. (Id. at 5.) 12 On October 19, 2019—that is, nearly a year later—Petitioner filed a change of 13 address form with the Court of Appeals. (Id.) 14 On February 18, 2020, Petitioner sent a letter to the Court of Appeals requesting a 15 status update. (Id.) 16 On February 21, 2020, the Court of Appeals sent a copy of the docket to Petitioner. 17 (Id.) 18 The Petition. As noted, Petitioner filed the Petition in March 2020. (Doc. 1.) It 19 raises five grounds for relief: (1) insufficient evidence supports Petitioner’s conviction for 20 attempted murder, in violation of Petitioner’s due process rights; (2) insufficient evidence 21 supports Petitioner’s convictions for discharging a firearm at a residence and 22 endangerment, in violation of Petitioner’s due process rights; (3) prosecutorial misconduct 23 occurred, in violation of Petitioner’s due process rights; (4) the trial court failed “to provide 24 a multiple acts statement,” in violation of Petitioner’s right to a unanimous jury verdict; 25 and (5) the sentences violate the Eighth Amendment. (Id. at 5-6.) 26 The R&R. The R&R concludes the Petition should be dismissed with prejudice 27 because it was filed outside AEDPA’s one-year statute of limitations. (Id. at 9-14.) 28 Specifically, the R&R explains that Petitioner’s state-court conviction became final on 1 October 17, 2018 (i.e., 30 days after the Court of Appeals denied relief in the PCR appeal), 2 the one-year statute of limitations expired on October 16, 2019, and Petitioner’s habeas 3 filing in March 2020 therefore came too late. (Id. at 9-10.) Next, the R&R explains that 4 statutory tolling is inapplicable because Petitioner has already received credit for the entire 5 period in which his direct appeal and PCR proceedings were pending. (Id. at 8-10.) As for 6 equitable tolling, the R&R states that “Petitioner’s argument for equitable tolling is based 7 entirely on his claimed mistaken belief that his PCR proceedings were still pending in the 8 Arizona Court of Appeals” and concludes this argument is unavailing because (1) “it was 9 not reasonable for Petitioner to conclude that his PCR proceedings were still pending in 10 the Arizona Court of Appeals after the September 11, 2018, decision granting review and 11 denying relief” and “[i]t certainly was not reasonable for Petitioner to conclude that his 12 PCR proceedings were still pending in the Arizona Court of Appeals after receiving the 13 October 30, 2018, mandate from the court of appeals,” (2) Petitioner’s misinterpretation of 14 the legal documents issued by the Court of Appeals does not, in any event, qualify as the 15 sort of “extraordinary circumstance” that might trigger equitable tolling, and (3) Petitioner 16 also failed to show “reasonable diligence” because, even assuming he misinterpreted some 17 legal documents, he “waited over fifteen months after the court of appeals’ mandate to 18 inquire at all regarding the status of the proceedings.” (Id. at 10-13.) Finally, the R&R 19 concludes that Petitioner may not take advantage of “the actual innocence/Schlup gateway” 20 because he merely raises challenges to the sufficiency of the evidence and “has not asserted 21 actual innocence or supported his Petition with any new reliable evidence of actual 22 innocence as required by the applicable caselaw.” (Id. at 13-14.) 23 II. Legal Standard 24 A party may file written objections to an R&R within fourteen days of being served 25 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 26 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 27 served with a copy of the recommended disposition, a party may serve and file specific 28 written objections to the proposed findings and recommendations.”). 1 District courts are not required to review any portion of an R&R to which no specific 2 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 3 not appear that Congress intended to require district court review of a magistrate’s factual 4 or legal conclusions, under a de novo or any other standard, when neither party objects to 5 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 6 (“[T]he district judge must review the magistrate judge’s findings and recommendations 7 de novo if objection is made, but not otherwise.”). Thus, district judges need not review 8 an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 9 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would 10 defeat the efficiencies intended by Congress, a general objection ‘has the same effect as 11 would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 12 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”).1 13 III. Analysis 14 Petitioner’s objections to the R&R are not a model of clarity. (Doc. 18.) For 15 example, the introductory paragraph states: 16 JRJ submits the following objections to the R and R. The Suspension Clause bars Arizona’s entitlement to AEDPA. In Spears v. Stewart, 283 F.3d 992, 17 1016-18 (9th Cir. 2002) due to delay in appointment of counsel review of 18 Arizona’s compliance with AEDPA, after the Supreme Court denied certiorari, was denied. As Petitioner asks this court to declare, in light of the 19 ACLU and IACHR reports, that as Maricopa County Attorney and Superior 20 Court, corrupt the criminal justice process, Arizona cannot benefit from AEPDA and as such the Suspension Clause bars AEDPA being applied. 21 (Id. at 5.) In any event, it appears that Petitioner seeks to raise three objections: (1) he is 22 entitled to equitable tolling because he filed a motion for rehearing in the superior court in 23 April 2017, which wasn’t denied until May 2018 (id. at 6); (2) he is entitled to equitable 24 tolling based on actual innocence (id. at 6-7); and (3) due to “structural defects in the 25 26 1 See generally S. Gensler, 2 Federal Rules of Civil Procedure, Rules and 27 Commentary, Rule 72, at 422 (2018) (“A party who wishes to object to a magistrate judge’s ruling must make specific and direct objections. General objections that do not direct the 28 district court to the issues in controversy are not sufficient. . . . [T]he objecting party must specifically identify each issue for which he seeks district court review . . . .”). 1 Maricopa County judicial system,” which are detailed in reports issued by the ACLU and 2 IACHR, Arizona is not entitled to benefits under AEPDA (id. at 7-10). Petitioner also 3 requests an evidentiary hearing and appointment of counsel. (Id. at 10-11.) 4 Petitioner’s objections lack merit. First, Petitioner is not entitled to equitable tolling 5 based on his purported filing a motion for rehearing in April 2017. Petitioner 6 acknowledges this motion was denied in May 2018. Petitioner does not explain why such 7 a denial, which was then followed the Court of Appeals’ rejection of his PCR-related 8 appeal in October 2018, could have somehow led him to believe his case was still pending. 9 Moreover, Petitioner has not challenged the R&R’s determination that, irrespective of any 10 confusion, he failed to exhibit reasonable diligence by waiting over fifteen months after 11 the issuance of Court of Appeals’ mandate to make any inquiry regarding the status of the 12 proceedings. Second, Petitioner is not entitled to equitable tolling based on actual 13 innocence. As Respondents correctly note, Petitioner’s “insufficiency-of-the-evidence 14 claims are not the equivalent of actual-innocence claims.” (Doc. 19 at 2.) Third, because 15 Petitioner’s claims must be dismissed due to their untimeliness, there is no need to address 16 his remaining objection, which concerns whether AEDPA deference would otherwise 17 apply to his claims. 18 Finally, Petitioner is not entitled to an evidentiary hearing and his request for 19 counsel will be denied, as he has not demonstrated that appointment of counsel is necessary 20 to prevent a violation of due process or is otherwise warranted in the interests of justice. 21 Accordingly, IT IS ORDERED that: 22 (1) Petitioner’s objections to the R&R (Doc. 18) are overruled. 23 (2) The R&R’s recommended disposition (Doc. 15) is accepted. 24 (3) The Petition (Doc. 1) is dismissed with prejudice. 25 (4) A Certificate of Appealability and leave to proceed in forma pauperis on 26 appeal are denied because the dismissal of the Petition is justified by a plain procedural 27 bar and reasonable jurists would not find the procedural ruling debatable. 28 … 1 (5) | The Clerk shall enter judgment accordingly and terminate this action. 2 Dated this 21st day of October, 2020. 3 4 om ee 5 f t _ Dominic W. Lanza 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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