Moore 324536 v. Shinn

• Court: District Court, D. Arizona
• Decided: March 23, 2021
• Docket: 2:20-cv-00731
• Status: Unknown

Opinion

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

9 Willie Lee Moore, No. CV-20-00731-PHX-MTL

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Before the Court is Magistrate Judge Deborah M. Fine’s Report and 16 Recommendation (“R & R”) (Doc. 17), recommending that the Amended Petition for Writ 17 of Habeas Corpus (the “Amended Petition”) (Doc. 10) be denied.1 The Court has reviewed 18 the Petition for Writ of Habeas Corpus (the “Petition”) (Doc. 1), the Amended Petition 19 (Doc. 10), Respondents’ Answer to the Amended Petition (Doc. 14), the R & R (Doc. 17), 20 Petitioner’s Objection to the R & R (Doc. 18), and Respondents’ Response to Petitioner’s 21 Objection (Doc. 19). For the reasons expressed below, the Court overrules Petitioner’s 22 objections and adopts the R & R in its entirety. 23 I. BACKGROUND 24 A jury found Petitioner guilty of second-degree murder and discharge of a firearm 25 at a structure. (Doc. 14–1 at 3–5.) See State v. Moore, No. 1 CA-CR-18-0045, 2019 WL 26 667780, at *1–2 (Ariz. Ct. App. Feb. 19, 2019).2 The trial court sentenced Petitioner to

27 1 Citations to the record refer to documents as listed in the official electronic filing system maintained by the District of Arizona in Case No. CV 20-00731-PHX-MTL (DMF). 28 2 The Arizona Court of Appeals’ stated facts are entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (“In habeas 1 concurrent terms of imprisonment, the longest of which is 23 years. Id. Petitioner timely 2 filed a direct appeal, arguing that the trial court erred by denying his motions for mistrial 3 and new trial based on alleged juror misconduct. Id. On February 19, 2019, the appellate 4 court affirmed Petitioner’s convictions and sentences. Id. Petitioner did not file a motion 5 for reconsideration in the appellate court or a petition for review in the Arizona Supreme 6 Court. (Doc. 14–1 at 82.) The appellate court’s mandate issued on April 9, 2019. (Id.) 7 On July 15, 2019, Petitioner filed a state action for post-conviction relief (“PCR”). 8 (Id. at 84–85.) Finding that Petitioner’s PCR notice was untimely under Arizona law, the 9 state court dismissed the PCR action on August 6, 2019. (Id. at 87–88.) On September 20, 10 2019, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 14–1 11 at 90–91.) The appellate court dismissed the petition as untimely. (Id. at 105–06.) Petitioner 12 did not seek review at the Arizona Supreme Court. (Doc. 10 at 5.) 13 Petitioner then initiated this federal habeas proceeding by filing the Petition on 14 April 9, 2020. (Doc. 1.) The Court dismissed the Petition without prejudice and with leave 15 to amend. (Doc. 7.) Petitioner timely filed the Amended Petition. (Doc. 10.) Respondents 16 answered, arguing the Petition is time-barred under the Antiterrorism and Effective Death 17 Penalty Act of 1996 (“AEDPA”) and “procedurally defaulted.”3 (Doc. 14 at 1.) 18 II. LEGAL STANDARD 19 When reviewing a state prisoner’s habeas corpus petition under 28 U.S.C. § 2254, 20 this Court “must decide whether the petitioner is ‘in custody in violation of the Constitution 21 or laws or treaties of the United States.’” Coleman v. Thompson, 501 U.S. 722, 730 (1991) 22 (quoting 28 U.S.C. § 2254). The Court only reviews de novo those portions of the report 23 specifically objected to and “may accept, reject, or modify, in whole or in part, the findings 24 and recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also 25 Fed. R. Civ. P. 72(b)(3). The Court need not “review . . . any issue that is not the subject 26 of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). A proper objection must be

27 proceedings in federal courts, the factual findings of state courts are presumed to be correct.”). 28 3 Petitioner did not file a reply. The record indicates that Petitioner received Respondents’ Answer. (See Doc. 15.) 1 specific. Fed. R. Civ. P. 72(b)(2). If a petitioner raises a general objection, “the Court is 2 relieved of any obligation to review it.” Martin v. Ryan, No. CV-13-00381-ROS, 2014 WL 3 5432133, at *2 (D. Ariz. Oct. 24, 2014). 4 III. DISCUSSION 5 The AEDPA establishes a one-year statute of limitations for filing a federal habeas 6 corpus petition. 28 U.S.C. § 2244(d)(1). The limitations period runs from the latest date on 7 which: “(1) direct review becomes final; (2) an unlawful state-created impediment to filing 8 is removed; (3) a new constitutional right is made retroactively available; or (4) the factual 9 predicate of the claims presented could have been discovered with due diligence.” Lopez 10 v. Att’y Gen. of Ariz., No. CV-17-03348-DJH, 2020 WL 7027561, at *4 (D. Ariz. Nov. 30, 11 2020) (citing 28 U.S.C. § 2244(d)(1)(A)–(D)). The R & R concludes that the Petition is 12 time-barred under 28 U.S.C. § 2244(d)(1) and that neither statutory tolling, equitable 13 tolling, nor actual innocence saves the Petition. (Doc. 17 at 9–10.) Thus, the R & R 14 recommends the Amended Petition be dismissed with prejudice. (Id.) Petitioner objects to 15 the R & R on the following grounds: (1) the Petition is timely considering the date on which 16 the appellate court’s mandate issued and the extension of Petitioner’s deadline to file a 17 motion for reconsideration; (2) equitable tolling renders the Petition timely; and (3) the 18 actual innocence exception is applicable. (Doc. 18 at 1–3.) 19 A. Accrual 20 After a de novo review, the Court agrees with the Magistrate Judge that the 21 AEDPA’s one-year limitations period commenced on March 27, 2019. After his conviction 22 and sentencing, Petitioner filed a timely direct appeal. (Doc. 14–1 at 3–5.) The appellate 23 court affirmed Petitioner’s convictions and sentences on February 19, 2019. (Id.) Petitioner 24 argues the AEDPA’s limitations period did not begin to run until after the appellate court’s 25 mandate issued. (Doc. 18 at 1.) But an Arizona conviction becomes final when the time for 26 filing a petition for review of the appellate court’s decision to the Arizona Supreme Court 27 expires, not upon the issuance of the mandate. Hemmerle v. Schriro, 495 F.3d 1069, 1073– 28 74 (9th Cir. 2007) (evaluating § 2244 finality considering Arizona law). Unless a motion 1 for reconsideration is filed, a petition for review must be filed with the Arizona Supreme 2 Court within 30 days of the appellate court’s decision. Ariz. R. Crim. P. 31.21(b)(2)(A) 3 (formerly Ariz. R. Crim. P. 31.19(a)). Petitioner did not file a motion for reconsideration 4 or a petition for review with the Arizona Supreme Court. (Doc. 14–1 at 82.) Thus, his 5 convictions and sentences became final on March 26, 2019, when the time to file a petition 6 for review expired. See Ariz. R. Crim. P. 31.21(b)(2)(A); Ariz. R. Crim. P. 1.3(a)(5) 7 (adding five days when a party “must act within a specified time after service and service 8 is made” by mail). 9 Petitioner contends the Petition is timely because the appellate court extended his 10 deadline to file a motion for reconsideration to April 5, 2019. (Doc. 18 at 2.) The Court 11 disagrees. Petitioner never actually filed a motion for reconsideration. (Doc. 14–1 at 82.) 12 An extension, without more, does not affect the time Petitioner had to seek review of the 13 appellate court’s decision. See Ariz. R. Crim. P. 31.21(b)(2)(A) (providing that if “a party 14 files a timely motion for reconsideration,” the party has “15 days after the motion’s final 15 disposition” to file a petition for review) (emphasis added). Thus, the Court agrees with the 16 Magistrate Judge that the AEDPA limitations period started to run on March 27, 2019 and, 17 absent tolling, expired one year later, on March 27, 2020. See 28 U.S.C. § 2244(d)(1)(A). 18 B. Statutory Tolling 19 The AEDPA’s limitations period is statutory tolled while “a properly filed 20 application for State post-conviction relief or other collateral review with respect to the 21 pertinent judgment or claim” is pending. 28 U.S.C. § 2244(d)(2). Untimely PCR petitions 22 are not “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 23 408, 410 (2005). Here, the state court dismissed Petitioner’s PCR notice because it was 24 untimely under Arizona law. (Doc. 14–1 at 87–88.) The Court therefore agrees with the 25 Magistrate Judge that Petitioner’s state PCR action was not properly filed. Thus, statutory 26 tolling does not apply. 27 C. Equitable Tolling 28 The AEDPA’s limitations period may also be tolled for equitable reasons. Holland 1 v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling is rarely available and “justified in 2 few cases.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Generally, a petitioner 3 “seeking equitable tolling bears the burden of establishing two elements: (1) that he has 4 been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 5 his way.” Pace, 544 U.S. at 418. To satisfy the first element a petitioner “must show that 6 he has been reasonably diligent in pursuing his rights not only while an impediment to 7 filing caused by an extraordinary circumstance existed, but before and after as well, up to 8 the time of filing his claim in federal court.” Smith v. Davis, 953 F.3d 582, 598–99 (9th 9 Cir. 2020). The second element is met “only when an extraordinary circumstance prevented 10 a petitioner acting with reasonable diligence from making a timely filing.” Id. at 600. 11 Petitioner argues he “has been diligently [pursuing] his rights.” (Doc. 18 at 3.) As 12 support, Petitioner asserts that he filed a state PCR action and a petition seeking review of 13 the trial court’s dismissal of his PCR proceedings. (Id. at 2.) As noted, Petitioner’s PCR 14 notice was filed more than two months late. (Doc. 14–1 at 88.) His petition for review was 15 also untimely. (Id. at 105.) Thus, rather than showing diligence, the state PCR filings 16 demonstrate Petitioner’s repeated failure to comply with applicable deadlines. See Pace, 17 544 U.S. at 419 (concluding a petitioner, who did not “advance[] his claims within a 18 reasonable time of their availability,” lacked the diligence necessary for equitable tolling 19 to apply). Petitioner next contends his filing of a motion to stay establishes the requisite 20 diligence. (Doc. 18 at 3.) Petitioner filed the motion to stay before initiating the present 21 action. See Motion to Stay for Habeas Corpus, Moore v. State of Arizona, No. CV-19- 22 05567-NVW-DMF (D. Ariz. filed Oct. 31, 2019), ECF No. 1. The district court “opened a 23 civil case to facilitate consideration of Petitioner’s motion”—even though “Petitioner [had] 24 not filed a habeas corpus petition or paid the $5.00 filing fee or filed an Application to 25 Proceed In Forma Pauperis”—and ultimately denied Petitioner’s request. Order, Moore, 26 No. CV-19-05567-NVW-DMF, ECF No. 4 at 1–2. Given those circumstances, the motion 27 to stay does little to bolster Petitioner’s argument. Last, Petitioner asserts that he diligently 28 pursued his rights by “attempting” to file a motion for reconsideration after the appellate 1 court affirmed his convictions and sentences. (Doc. 18 at 2.) Petitioner attached an e-file 2 request and two e-mails to his Objection as support. (Id., Ex. C.) But he did not provide 3 additional detail or attempt to explain how those attachments establish his diligence. Thus, 4 having considered Petitioner’s “overall level of care and caution in light of his 5 . . . particular circumstances,” the Court agrees with the Magistrate Judge that Petitioner 6 has not been reasonably diligent in pursuing his rights. Smith, 953 F.3d at 599 (quoting 7 Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011)). 8 In addition, even if Petitioner had been reasonably diligent, equitable tolling is 9 unavailable because Petitioner’s allegations do not amount to extraordinary circumstances. 10 Petitioner first asserts that legal mail is picked up and delivered only one time per week in 11 the unit in which he is confined. (Doc. 18 at 1.) But reduced access to mail, unlike the 12 denial of access altogether, is an ordinary prison limitation that is not extraordinary enough 13 to warrant the application of equitable tolling. See Ramirez v. Yates, 571 F.3d 993, 998 (9th 14 Cir. 2009). Indeed, given the common day-to-day security restrictions in prison, concluding 15 otherwise would allow the equitable tolling exception to swallow the AEDPA’s rule. Id. 16 Petitioner further contends an attorney “told him that his deadline for a federal appeal [was] 17 April 8, 2020,” and a paralegal advised that he had until September 24, 2020 to file the 18 Petition. (Doc. 18 at 1.) “Attorney miscalculation,” however, “is simply not sufficient to 19 warrant equitable tolling, particularly in the postconviction context where prisoners have 20 no constitutional right to counsel.” Lawrence v. Florida, 549 U.S. 327, 336–37 (2007). 21 And “a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary 22 circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th 23 Cir. 2006). The Court finds that Petitioner’s allegations fall short of showing extraordinary 24 circumstances. Thus, the Court agrees with the Magistrate Judge that equitable tolling is 25 unavailable. 26 D. Actual Innocence 27 “When an otherwise time-barred habeas petitioner ‘presents evidence of innocence 28 so strong that a court cannot have confidence in the outcome of the trial . . . ,’ the Court 1 may consider the petition on the merits.” Stewart v. Cate, 757 F.3d 929, 937 (9th Cir. 2014) 2 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). A petitioner must establish “factual 3 innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 4 (1998). “[A] claim of actual innocence must be based on reliable evidence not presented at 5 trial. Given the rarity of such evidence, in virtually every case, the allegation of actual 6 innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 7 2000) (quoting Calderon v. Thompson, 523 U.S. 538, 559 (1998)). In this case, Petitioner 8 concedes “there is no new evidence” to prove his factual innocence. (Doc. 18 at 3.) And 9 nothing in the record erodes this Court’s confidence in the outcome of Petitioner’s trial. 10 See McQuiggin v. Perkins, 569 U.S. 383, 401 (2013). Accordingly, the Court agrees with 11 the Magistrate Judge that the actual innocence gateway provides no relief to Petitioner. The 12 Court therefore will not consider the merits of the Amended Petition. 13 E. Certificate of Appealability 14 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 15 must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). Because this Court rendered 16 the judgment denying the Amended Petition, the Court must either issue a certificate of 17 appealability or state why a certificate should not issue. See id. A certificate may issue 18 “only if the applicant has made a substantial showing of the denial of a constitutional right.” 19 28 U.S.C. § 2253(c)(2). A substantial showing is made when the resolution of an issue of 20 appeal is debatable among reasonable jurists, if courts could resolve the issue differently, 21 or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484–85 22 (2000). Upon review of the record in light of the standards for granting a certificate of 23 appealability, the Court finds that a certificate shall not issue because dismissal of the 24 Amended Petition is justified by a plain procedural bar and reasonable jurists would not 25 find that procedural ruling debatable. Id. at 484 (“Where a plain procedural bar is present 26 and the district court is correct to invoke it to dispose of the case, a reasonable jurist could 27 not conclude either that the district court erred in dismissing the petition or that the 28 petitioner should be allowed to proceed further.”). IV. CONCLUSION 2 Accordingly, 3 IT IS ORDERED adopting the Report and Recommendation (Doc. 17). 4 IT IS FURTHER ORDERED denying the Amended Petition (Doc. 10) and 5 || dismissing it with prejudice. 6 IT IS FURTHER ORDERED declining to issue a certificate of appealability. 7 IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment, 8 || terminating this case. 9 Dated this 23rd day of March, 2021. 10 Wichad T. gibuade Michael T. Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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