McBee 280666 v. Thornell

• Court: District Court, D. Arizona
• Decided: October 6, 2025
• Docket: 2:25-cv-01344
• Status: Unknown

Opinion

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

9 Erik D McBee, No. CV-25-01344-PHX-KML

10 Petitioner, ORDER

11 v.

12 Ryan Thornell, et al.,

13 Respondents. 14 15 Petitioner Erik D. McBee pleaded guilty to second-degree murder and in 2016 was 16 sentenced to 16 years in prison. In April 2025, McBee filed a federal petition for writ of 17 habeas corpus alleging a variety of claims based on an alleged failure to amend his plea 18 agreement to reflect he was eligible for a minimum sentence of ten years instead of 19 fourteen. Magistrate Judge Deborah M. Fine issued a Report and Recommendation (Doc. 20 14) concluding McBee’s petition is barred by the statute of limitations. Judge Fine issued 21 a separate R&R recommending denial of McBee’s motion to be released while his habeas 22 petition was pending. (Doc. 13.) McBee filed objections to both R&Rs (Doc. 15, 16) but 23 the R&Rs are correct and adopted in full.1 24 The R&R addressing the merits of McBee’s petition provides a detailed recitation 25 of the background facts, most of which are undisputed. Only the following events are 26 important for determining timeliness. In 2014, McBee pleaded guilty in state court to 27 1 The time for respondents to respond to McBee’s objections has not yet expired but the 28 time-bar is obvious from the record and further briefing from respondents would not aid in addressing the R&Rs. 1 second-degree murder with a stipulated sentencing range of 14 to 22 years. Sometime 2 before McBee’s sentencing, McBee’s counsel and the prosecutor agreed to lower the 3 minimum possible sentence to 10 years. The paperwork documenting that change was not 4 properly filed and the record at the time of McBee’s sentencing in January 2016 seemed to 5 still require a sentence between 14 and 22 years. McBee was sentenced to 16 years. McBee 6 did not seek post-conviction relief at that time. 7 In 2023, McBee filed a petition for post-conviction relief in state trial court. That 8 court dismissed the petition as untimely. In seeking reconsideration of the dismissal, 9 McBee argued he did not learn of the issue involving the permissible sentencing range until 10 “four years after his January 27, 2016 sentencing.” (Doc. 1-7 at 3.) In other words, McBee 11 argued to the state trial court that he learned the factual basis for his claims in 12 approximately 2020. The state trial court denied the motion for reconsideration and the 13 state court of appeals granted review but denied relief. State v. McBee, No. 1 CA-CR 23- 14 0548 PRPC, 2024 WL 3611374 (Ariz. Ct. App. Aug. 1, 2024). In April 2025, McBee filed 15 his federal petition. 16 The R&R concludes McBee’s habeas petition is barred by the one-year statute of 17 limitations. The R&R reasons McBee could have learned of the issue regarding the 18 permissible sentencing range shortly after his sentencing in 2016. (Doc. 14 at 8.) But the 19 R&R also points out McBee admitted in state court that he learned of the sentencing issue 20 in 2020, and McBee’s own notes indicate he knew of the issue at the very latest as of May 21 2021. (Doc. 12 at 39.) Based on those dates the R&R recommends the court conclude the 22 petition was filed outside the statute of limitations. 23 In his objections to the R&R addressing his petition, McBee claims it is unrealistic 24 to expect he could have learned the underlying facts shortly after sentencing in 2016. (Doc. 25 16 at 3.) But McBee concedes he “understood the factual predicate [for his federal claims] 26 in May 2021.” (Doc. 16 at 4.) McBee then argues the delay from 2021 through 2025 was 27 due to his post-conviction relief counsel and “outside of [McBee’s] control.” (Doc. 16 at 28 4.) 1 McBee’s federal petition was filed approximately four years after he indisputably 2 knew the factual basis for his claims. Although McBee had ongoing state court proceedings 3 during some of the time between learning of the factual basis and filing his federal petition, 4 the state courts eventually concluded McBee’s state petition was untimely. The federal 5 courts must accept that ruling. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). Therefore, 6 McBee is not entitled to statutory tolling for any of the time his state proceedings were 7 ongoing. Id. at 417. To the extent McBee was confused whether to file a petition in federal 8 court while his state petition was pending, he could have filed “a ‘protective’ petition in 9 federal court . . . asking the federal court to stay and abey the federal habeas proceedings 10 until state remedies are exhausted.” Id. at 416. McBee did not do so. 11 As for possible equitable tolling, McBee attributes much of the delay between 2020 12 and 2025 to his counsel. But as the R&R correctly explains, in the circumstances of this 13 case that delay is not sufficient to support equitable tolling. (Doc. 14 at 14-15.) Finally, the 14 record does not provide any basis to invoke the “actual innocence gateway” that might 15 render McBee’s petition timely. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) 16 (simplified). McBee’s petition is barred by the statute of limitations. That conclusion 17 establishes the R&R recommending denial of McBee’s motion for release is also correct 18 and should be adopted. 19 IT IS ORDERED the Report and Recommendation (Doc. 14) is ADOPTED. The 20 petition for writ of habeas corpus (Doc. 1) is DENIED and DISMISSED WITH 21 PREJUDICE. The Clerk of Court shall enter judgment and close this case. 22 IT IS FURTHER ORDERED the Report and Recommendation (Doc. 13) is 23 ADOPTED. The Motion to Release (Doc. 11) is DENIED. 24 / 25 / 26 / 27 / 28 / 1 IT IS FURTHER ORDERED leave to proceed in forma pauperis and a certificate □□ of appealability are DENIED because dismissal of the petition is justified by a plain 3 || procedural bar and reasonable jurists would not find the ruling debatable. 4 IT IS FURTHER ORDERED the Motion for Hearing (Doc. 17) is DENIED AS 5|| MOOT. 6 Dated this 6th day of October, 2025. 7

9 en Honorable Krissa M. Lanham 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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