1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lester Bernard Moore, No. CV 18-02290-PHX-GMS (BSB) 10 Petitioner, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Respondents.
14 15 16 Pending before the Court are Petitioner Lester Bernard Moore (“Petitioner”)’s 17 Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 8) and United 18 States Magistrate Judge Eileen S. Willett’s Report and Recommendation (“R&R”), which 19 recommends that the Court deny the Petition (Doc. 18). Petitioner timely filed objections 20 to the R&R. (Doc. 21.) The Court denies the Petition and adopts the R&R. 21 BACKGROUND 22 Because no party has objected to the procedural background set forth in the R&R, 23 the Court adopts the background as set forth therein: 24 In May 2015, a jury sitting in the Superior Court of Arizona in and for Maricopa 25 County found Petitioner guilty of kidnapping, aggravated assault, burglary in the first degree, and sexual assault. (Doc. 16-1 at 72-76). The trial court sentenced 26 Petitioner to a total of twenty years in prison. (Doc. 16-2 at 2-8). On January 5, 2017, the Arizona Court of Appeals affirmed Petitioner’s convictions and sentences. 27 (Doc. 16-4 at 2-13). Upon Petitioner’s request, the Arizona Supreme Court extended the deadline for Petitioner to file a pro se petition for review. (Id. at 17). Petitioner 28 failed to file a petition for review by the March 9, 2017 extended deadline. On April 4, 2017, the Arizona Supreme Court dismissed the matter. (Id. at 20). The Arizona Court of Appeals issued its mandate on April 6, 2017. (Doc. 8 at 182). On June 2, 1 2017, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Doc. 16-4 at 35- 37). The trial court dismissed the PCR Notice on July 17, 2017, noting that it was 2 untimely filed and failed to state a claim for which relief can be granted in an untimely PCR proceeding. (Id. at 39-41). Petitioner did not request further review 3 by the Arizona Court of Appeals. On July 20, 2018, Petitioner initiated this federal habeas proceeding. (Doc. 1). 4
5 (Doc. 18 at 1–2.) 6 DISCUSSION 7 I. Standard of Review 8 A “district judge may refer dispositive pretrial motions, and petitions for writ of 9 habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend 10 dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 636(b)(1)(B); 11 Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party “may serve and 12 file written objections” to the R&R. 28 U.S.C. § 636(b)(1). “A judge of the court shall 13 make a de novo determination of those portions of the report or specified findings or 14 recommendations to which objection is made.” Id. District courts, however, are not 15 required to conduct “any review at all . . . of any issue that is not the subject of an 16 objection.” Arn, 474 U.S. at 149. A district judge “may accept, reject, or modify, in whole 17 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. 18 § 636(b)(1). 19 II. Analysis 20 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 21 U.S.C. § 2244(d), a state prisoner must file his or her federal habeas petition within one 22 year of the latest of four dates, subject to statutory and equitable tolling. In this case, the 23 only relevant date is “the date on which the judgment became final by the conclusion of 24 direct review or the expiration of the time for seeking such review.” 28 U.S.C. 25 § 2244(d)(1)(A).1 Accordingly, the Magistrate Judge recommends that Petitioner’s petition 26
1 Petitioner also cites 28 U.S.C. § 2244(d)(1)(B) as applicable. However, that provision 27 does not refer to “the date on which the impediment to filing an application created by State action is removed, if the petitioner was prevented from filing by the State action,” as 28 Petitioner claims, (Doc. 18 at 2), but instead refers to “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of 1 be denied and dismissed with prejudice because it was not timely filed and neither statutory 2 nor equitable tolling applies. 3 In his Objection, Petitioner argues that when the Arizona Supreme Court decided 4 that Petitioner’s time “to file a petition for review of the Arizona Court of Appeals 5 Memorandum Decision had expired, and no such petition had been filed, the one year 6 AEDPA statute of limitations did not start to run because three pathways for further review 7 still were open to Moore,” including seeking “writ of certiorari to the United States 8 Supreme Court.” (Doc. 21 at 4–5.) Petitioner asserts that, per Supreme Court Rule 13, he 9 had until June 7, 2017 to file for writ of certiorari,2 and that until that time, the state court 10 judgment was not final. Petitioner then argues that because he filed a notice of post- 11 conviction relief (PCR) proceedings on June 2, 2017, “there is no gap.” (Doc. 21 at 6.) Yet 12 as the Magistrate Judge noted, the United States Supreme Court dealt with this issue in 13 Gonzalez v. Thaler, 565 U.S. 134 (2012). In Gonzalez, the Court held that the text of 14 § 2244(d)(1)(A) designating finality as “the conclusion of direct review or the expiration 15 of the time for seeking such review,” 16 consists of two prongs. Each prong—the ‘conclusion of direct review’ and the ‘expiration of the time for seeking such review’—relates to a distinct category of 17 petitioners. For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the ‘conclusion of direct review’—when this Court 18 affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the ‘expiration of the time for seeking 19 such review’—when the time for pursuing direct review in this Court, or in state court, expires. 20 21
the United States is removed, if the applicant was prevented from filing by such State 22 action.” (Emphasis added.) Petitioner alleges no such impediment here.
23 2 “Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court 24 of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A 25 petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with 26 the Clerk within 90 days after entry of the order denying discretionary review.” U.S. Sup. Ct. R. 13. 27
28 1 565 U.S. at 150. Because Gonzalez did not appeal to the State’s highest court, the Court 2 determined that “his judgment became final when his time for seeking review with the 3 State’s highest court expired,” and did not include the 90-day period for seeking certiorari 4 in its finality calculation. Id. at 154. Like the petitioner in Gonzalez, Petitioner did not 5 appeal to the highest state court.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lester Bernard Moore, No. CV 18-02290-PHX-GMS (BSB) 10 Petitioner, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Respondents.
14 15 16 Pending before the Court are Petitioner Lester Bernard Moore (“Petitioner”)’s 17 Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 8) and United 18 States Magistrate Judge Eileen S. Willett’s Report and Recommendation (“R&R”), which 19 recommends that the Court deny the Petition (Doc. 18). Petitioner timely filed objections 20 to the R&R. (Doc. 21.) The Court denies the Petition and adopts the R&R. 21 BACKGROUND 22 Because no party has objected to the procedural background set forth in the R&R, 23 the Court adopts the background as set forth therein: 24 In May 2015, a jury sitting in the Superior Court of Arizona in and for Maricopa 25 County found Petitioner guilty of kidnapping, aggravated assault, burglary in the first degree, and sexual assault. (Doc. 16-1 at 72-76). The trial court sentenced 26 Petitioner to a total of twenty years in prison. (Doc. 16-2 at 2-8). On January 5, 2017, the Arizona Court of Appeals affirmed Petitioner’s convictions and sentences. 27 (Doc. 16-4 at 2-13). Upon Petitioner’s request, the Arizona Supreme Court extended the deadline for Petitioner to file a pro se petition for review. (Id. at 17). Petitioner 28 failed to file a petition for review by the March 9, 2017 extended deadline. On April 4, 2017, the Arizona Supreme Court dismissed the matter. (Id. at 20). The Arizona Court of Appeals issued its mandate on April 6, 2017. (Doc. 8 at 182). On June 2, 1 2017, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Doc. 16-4 at 35- 37). The trial court dismissed the PCR Notice on July 17, 2017, noting that it was 2 untimely filed and failed to state a claim for which relief can be granted in an untimely PCR proceeding. (Id. at 39-41). Petitioner did not request further review 3 by the Arizona Court of Appeals. On July 20, 2018, Petitioner initiated this federal habeas proceeding. (Doc. 1). 4
5 (Doc. 18 at 1–2.) 6 DISCUSSION 7 I. Standard of Review 8 A “district judge may refer dispositive pretrial motions, and petitions for writ of 9 habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend 10 dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 636(b)(1)(B); 11 Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party “may serve and 12 file written objections” to the R&R. 28 U.S.C. § 636(b)(1). “A judge of the court shall 13 make a de novo determination of those portions of the report or specified findings or 14 recommendations to which objection is made.” Id. District courts, however, are not 15 required to conduct “any review at all . . . of any issue that is not the subject of an 16 objection.” Arn, 474 U.S. at 149. A district judge “may accept, reject, or modify, in whole 17 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. 18 § 636(b)(1). 19 II. Analysis 20 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 21 U.S.C. § 2244(d), a state prisoner must file his or her federal habeas petition within one 22 year of the latest of four dates, subject to statutory and equitable tolling. In this case, the 23 only relevant date is “the date on which the judgment became final by the conclusion of 24 direct review or the expiration of the time for seeking such review.” 28 U.S.C. 25 § 2244(d)(1)(A).1 Accordingly, the Magistrate Judge recommends that Petitioner’s petition 26
1 Petitioner also cites 28 U.S.C. § 2244(d)(1)(B) as applicable. However, that provision 27 does not refer to “the date on which the impediment to filing an application created by State action is removed, if the petitioner was prevented from filing by the State action,” as 28 Petitioner claims, (Doc. 18 at 2), but instead refers to “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of 1 be denied and dismissed with prejudice because it was not timely filed and neither statutory 2 nor equitable tolling applies. 3 In his Objection, Petitioner argues that when the Arizona Supreme Court decided 4 that Petitioner’s time “to file a petition for review of the Arizona Court of Appeals 5 Memorandum Decision had expired, and no such petition had been filed, the one year 6 AEDPA statute of limitations did not start to run because three pathways for further review 7 still were open to Moore,” including seeking “writ of certiorari to the United States 8 Supreme Court.” (Doc. 21 at 4–5.) Petitioner asserts that, per Supreme Court Rule 13, he 9 had until June 7, 2017 to file for writ of certiorari,2 and that until that time, the state court 10 judgment was not final. Petitioner then argues that because he filed a notice of post- 11 conviction relief (PCR) proceedings on June 2, 2017, “there is no gap.” (Doc. 21 at 6.) Yet 12 as the Magistrate Judge noted, the United States Supreme Court dealt with this issue in 13 Gonzalez v. Thaler, 565 U.S. 134 (2012). In Gonzalez, the Court held that the text of 14 § 2244(d)(1)(A) designating finality as “the conclusion of direct review or the expiration 15 of the time for seeking such review,” 16 consists of two prongs. Each prong—the ‘conclusion of direct review’ and the ‘expiration of the time for seeking such review’—relates to a distinct category of 17 petitioners. For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the ‘conclusion of direct review’—when this Court 18 affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the ‘expiration of the time for seeking 19 such review’—when the time for pursuing direct review in this Court, or in state court, expires. 20 21
the United States is removed, if the applicant was prevented from filing by such State 22 action.” (Emphasis added.) Petitioner alleges no such impediment here.
23 2 “Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court 24 of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A 25 petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with 26 the Clerk within 90 days after entry of the order denying discretionary review.” U.S. Sup. Ct. R. 13. 27
28 1 565 U.S. at 150. Because Gonzalez did not appeal to the State’s highest court, the Court 2 determined that “his judgment became final when his time for seeking review with the 3 State’s highest court expired,” and did not include the 90-day period for seeking certiorari 4 in its finality calculation. Id. at 154. Like the petitioner in Gonzalez, Petitioner did not 5 appeal to the highest state court. The Arizona Court of Appeals affirmed Petitioner’s 6 convictions and sentences on January 5, 2017. The Arizona Supreme Court set March 9, 7 2017 as the deadline for filing a petition for review. When Petitioner did not file by the 8 deadline, Petitioner’s time for seeking review expired, and his judgment became final. 9 Petitioner therefore had until March 9, 2018 to file his petition unless that deadline was 10 tolled. 11 Petitioner argues that the AEDPA statute of limitations did not start to run when his 12 time for appealing to the Arizona Supreme Court expired because, pursuant to Ariz. R. 13 Crim. P. 32.4, he had “30 days after the issuance of the order and mandate in the direct 14 appeal” in which to file a notice of PCR and, pursuant to Ariz. R. Crim. P. 31.2, he had 15 15 days after entry of the decision to file a motion for reconsideration. He asserts that the “date 16 of issuance of the mandate by the Court of Appeals is not a certain fact” because Petitioner 17 filed a “Motion to Rescind this mandate . . . heard by a three judge panel of the Court of 18 Appeals . . . and they took until May 3, 2017 to file their one page ruling.” (Doc. 21 at 8.) 19 Petitioner cites no authority, nor could this Court find any, that filing a motion to rescind 20 extends the date of the issuance of the order and mandate for purposes of Ariz. R. Crim. P. 21 32.4(D). To the contrary, the Ninth Circuit, interpreting Arizona law, has determined that 22 when a petitioner has not timely appealed a decision terminating review, his “direct appeal 23 [is] final upon the expiration of the time for seeking review of the Court of Appeals decision 24 in the Arizona Supreme Court.” Hemmerle v. Schriro, 495 F.3d 1069, 1073–74 (9th Cir. 25 2007). Petitioner’s judgment therefore became final on March 9, 2017. He had one year 26 from that date to file a federal habeas petition. 27 Petitioner argues that filing his federal habeas petition “after June 2, 2017, [the date 28 he filed PCR proceedings] but before July 17, 2017, [the date those proceedings were 1 dismissed as untimely] would have been a premature filing and would have to have been 2 dismissed without prejudice and refiled only after the state courts had ruled upon [the PCR 3 petition’s] procedural or substantive merits. . . . As long as [the PCR petition] was before 4 the state court, it was an impediment to Moore filing his petition for writ of habeas corpus.” 5 (Doc. 21 at 7.) Petitioner is correct that there are instances in which a federal habeas filing 6 must be dismissed as premature because a state PCR petition is pending. See, e.g., 7 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (“When . . . an appeal of a state 8 criminal conviction is pending, a would be habeas corpus petitioner must await the 9 outcome of his appeal before his state remedies are exhausted.”); Evans v. Ryan, No. 10 CV-16-08-67-PCT-DLR (BSB), 2016 WL 4394184, at *2 (D. Ariz. June 14, 2016) 11 (recommending dismissal of habeas corpus petition as premature when Rule 32 of-right 12 petition pending in state court), adopted, 2016 WL 4271863 (D. Ariz. Aug. 15, 2016). 13 However, Petitioner’s June 2, 2017 PCR filing was dismissed as untimely by the trial court 14 because “the deadline for Defendant’s Notice of Post-Conviction Relief was May 8, 15 2017.”3 (Doc. 16-4 at 39–40.) This Court has previously held that untimely state PCR 16 filings render a concurrent federal habeas petition “timely, not premature, and properly 17 filed.” Miller v. Ryan, No. CV-14-01773-PHX-NVW, 2017 WL 1361291, at *1 (D. Ariz. 18 Apr. 14, 2017) (petitioner’s habeas petition was erroneously dismissed for failure to 19 exhaust state remedies because pending state post-conviction proceedings were improper 20 and untimely). Therefore, because Petitioner’s PCR filing was untimely, his federal habeas 21 petition would not have been premature had he filed it prior to the dismissal of his PCR 22 proceedings on July 17, 2017. 23 The limitations period for filing a federal habeas petition may only be tolled during 24 the “time during which a properly filed application for State post-conviction relief or other 25 collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. 26 § 2244(d)(2) (emphasis added). An untimely state collateral review petition is not
27 3 “Under Rule 32.1(f) of the Arizona Rules of Criminal Procedure the Notice of Post- Conviction Relief must be filed within 90 days of the entry of judgment and sentencing or 28 within 30 days of the issuance of the order and mandate by the appellate court, whichever is later. . . . the order and mandate issued on April 6, 2017.” 1 “properly filed.” Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (holding that “time limits, 2 no matter their form, are ‘filing’ conditions,” and that a state PCR petition is not “properly 3 filed” if it was rejected by the state court as untimely). “[T]olling under section 2244(d)(2) 4 is unavailable where a state habeas petition is deemed untimely under [state] timeliness 5 standards.” White v. Martel, 601 F.3d 882, 884 (9th Cir. 2010). Because Petitioner’s PCR 6 filing was untimely, it did not toll his deadline for filing a federal habeas petition. 7 Finally, regarding equitable tolling, Petitioner has offered no argument regarding 8 his inability to prepare the instant habeas petition in the months following the state trial 9 court’s July 17, 2017 dismissal of his PCR notice. Equitable tolling is applicable only “if 10 extraordinary circumstances beyond a prisoner’s control make it impossible to file a 11 [federal habeas] petition on time.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). As 12 the Magistrate Judge observed, there is no indication in the record that the circumstances 13 of Petitioner’s incarceration made it “impossible” for Petitioner to timely file the federal 14 habeas petition, even if he encountered obstacles in the post-conviction state proceedings. 15 Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (finding that equitable tolling did 16 not apply where there was “no indication in the record that [circumstances] made it 17 ‘impossible’ for [prisoner] to file on time”). Equitable tolling therefore is unavailable. 18 Accordingly, because the limitations period was not statutorily or equitably tolled, this 19 proceeding is untimely. 20 CONCLUSION 21 Having reviewed the record de novo, the Court adopts Magistrate Judge’s R&R and 22 denies and dismisses the Amended Petition with prejudice. The Court agrees with the 23 Magistrate Judge’s conclusion that Petitioner’s filing is untimely. 24 IT IS SO ORDERED that Petitioner’s Amended Petition for Writ of Habeas 25 Corpus (Doc. 8) is DENIED and DISMISSED with prejudice. 26 IT IS FURTHER ORDERED that the Report and Recommendation of United 27 States Magistrate Judge Eileen S. Willett (Doc. 18) is ADOPTED. 28 IT IS FURTHER ORDERED that Petitioner’s Objections to the Report and 1 | Recommendation (Doc. 21) are OVERRULLED. 2 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court’s procedural 5 | ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 6 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 7 Dated this 19th day of November, 2019. Wars ) 9 A Whacrsay Fotos 10 Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28