Proper v. Jackson

• Court: District Court, D. Arizona
• Decided: June 15, 2020
• Docket: 2:18-cv-03026
• Status: Unknown

Opinion

1 2 3 NOT FOR PUBLICATION 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ryan Joseph Proper, No. CV-18-03026-PHX-SRB

10 Petitioner, ORDER

11 v.

12 Phoenix City Prosecutor’s Office,

13 Respondent. 14 15 The Court now considers Petitioner Ryan Joseph Proper (“Petitioner”)’s Second 16 Amended Petition (“SAP”) for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 17 (“Petition”) (Doc. 7, Sec. Am. Pet.). The matter was referred to Magistrate Judge Eileen S. 18 Willett for a Report and Recommendation. (Doc. 41, R. & R.) 19 I. BACKGROUND 20 A. Factual Background 21 The background of this case was thoroughly summarized in the Report and 22 Recommendation and is incorporated herein: 23 In July 2014, Petitioner was charged with violating ARIZ. REV. STAT. § 28-1381(A)(1) (driving under the 24 influence if impaired to the slightest degree) and ARIZ. REV. STAT. § 28-1381(A)(3) (driving under the influence with a 25 drug or metabolite in the person’s body). (Doc. 36-1 at 2). As recounted by the Superior Court of Arizona: 26 The charges were the result of a three car 27 collision that occurred on May 20, 2014. The vehicle Defendant was driving rear-ended 28 another vehicle, which caused that vehicle to rear-end vehicle in front of it. (Id. at 2). 1 Defendant was transported to the hospital where he consented to a blood draw. Defendant 2 informed the officer that he had taken a Valium that morning and had consumed one beer with 3 his lunch. Testing of Defendant’s blood later revealed the presence of five drugs/metabolites: 4 Alprazolam, 7-Aminoclonazepam, Diazepam, Nordiazepam, and Oxazepam. Defendant also 5 had a BAC of .038. 6 (Id. at 2.) Following trial, a jury sitting in the Phoenix Municipal Court convicted Petitioner of driving with a drug or 7 its metabolite in violation ARIZ. REV. STAT. § 28- 1381(A)(3). (Id.). The Phoenix Municipal Court sentenced 8 Petitioner to ten days in jail, followed by a three-year term of probation. (Id.). On May 19, 2015, the Phoenix Municipal 9 Court suspended the imposition of nine days in jail upon Petitioner’s successful completion of substance abuse 10 screening. (Id.). Petitioner filed an appeal in the Superior Court of Arizona in and for Maricopa County. (Id. at 7–11). 11 On March 25, 2016, Petitioner filed a Notice of Post- 12 Conviction Relief (“PCR”) in the Phoenix Municipal Court. (Id. at 37). Following briefing, the Phoenix Municipal Court 13 denied PCR relief. (Id. at 73). Petitioner filed a Petition for Review in the Superior Court. (Id. at 75–88). The Superior 14 Court granted review, but denied relief. (Id. at 115–17). Petitioner filed a Petition for Special Action in the Arizona 15 Court of Appeals. (Id. at 119–34). The Court of Appeals declined to exercise jurisdiction. (Id. at 136). The Arizona 16 Supreme Court denied review of the Court of Appeals’ denial. (Id. at 156). 17 On September 25, 2018, Petitioner initiated this federal 18 habeas proceeding. (Doc. 1). Pursuant to the Court’s Screening Order (Doc. 11), Respondents have answered the Second 19 Amended Petition (Doc. 7). (Doc. 36). Petitioner has filed a Reply (Docs. 37, 38). 20 21 (R. & R. at 1–2.) 22 B. Procedural Background 23 On April 3, 2020, the Magistrate Judge filed her Report and Recommendation 24 recommending that Petitioner’s SAP be dismissed with prejudice. (Id. at 10.) Petitioner 25 timely objected on April 17, 2020.1 (See Doc. 42, Obj. to R. & R. (“Obj.”).) 26 II. LEGAL STANDARD 27 1 On May 7, 2020, the Court denied Petitioner’s Motion to Enlarge Page Limits (Doc. 43) 28 and Motion [for] Leave to File Excess Pages Re: Supplemental Objection to Report and Recommendation (Doc. 44). (Doc. 46, 05/07/20 Order.) 1 A district court “must make a de novo determination of those portions of the report 2 . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 3 the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). A 4 court need review only those portions objected to by a party, meaning a court can adopt 5 without further review all portions not objected to. See United States v. Reyna-Tapia, 328 6 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For those portions of a Magistrate Judge’s 7 findings and recommendations to which neither party has objected, the Act does not 8 prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is 9 no indication that Congress . . . intended to require a district judge to review a 10 magistrate’s report to which no objections are filed.”); Reyna–Tapia, 328 F.3d at 1121 11 (“[T]he district judge must review the magistrate judge’s findings and recommendations 12 de novo if objection is made, but not otherwise.”). 13 III. OBJECTIONS 14 Petitioner objects to the Report and Recommendation on two grounds. (See Obj.) 15 First, Petitioner objects to the conclusion that his claims were untimely under the Anti- 16 Terrorism and Effective Death Penalty Act (“AEDPA”). (See id. at 2–7.) Second, Petitioner 17 objects to the Magistrate Judge’s “analysis of the weight of evidence presented at trial and 18 upon the SAP,” arguing that he has satisfied his burden of producing “new reliable 19 evidence” of his actual innocence. (See id. at 7–10.) The Court considers each objection in 20 turn. 21 A. Objection One 22 The AEDPA requires that a federal habeas petition be filed within one year of a 23 final state court conviction. 28 U.S.C. § 2244(d)(1). The limitation period runs from “the 24 date on which the judgment became final by conclusion of direct review or the expiration 25 of the time for seeking such review.” Id. § 2244(d)(1)(A). The one-year limitations period, 26 however, is subject to the AEDPA’s statutory tolling provision whereunder the limitations 27 period is tolled for the “time during which a properly filed application for State [PCR] or 28 other collateral review with respect to the pertinent judgment or claim is pending.” 1 Id. § 2244(d)(2); see Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006). The AEDPA’s 2 statute of limitations is also subject to equitable tolling, but only if “extraordinary 3 circumstances” beyond a prisoner’s control make it impossible for him to file a timely 4 petition. Roy, 465 F.3d at 969; see Holland v. Florida, 560 U.S. 631, 649 (2010) (reiterating 5 “extraordinary circumstances” requirement). 6 The Magistrate Judge concluded that “unless statutory or equitable tolling applies, 7 Petitioner’s one-year deadline to file a federal habeas petition expired on June 23, 2017, 8 rendering this proceeding initiated in September 2018 untimely.”2 (R. & R. at 5.) Petitioner 9 does not dispute that equitable tolling is unavailable, but maintains that statutory tolling 10 applies. (Id. at 7–8; see Obj. at 2–7.) The Magistrate Judge found that the one-year statute 11 of limitations began running on June 24, 2016. (R. & R. at 6.) But because Petitioner filed 12 a PCR Notice on March 25, 2016—before his conviction became final—the limitations 13 period was immediately tolled when his conviction became final on June 23, 2016. (Id.) 14 On May 12, 2017, the Superior Court affirmed the Phoenix Municipal Court’s denial of 15 PCR relief; at that point, Arizona law prohibited Petitioner from seeking further review by 16 the Arizona Court of Appeals or Arizona Supreme Court. (See id. (citing A.R.S. § 22- 17 375)). 18 The Magistrate Judge determined that: (1) the PCR proceeding concluded on May 19 12, 2017; (2) the limitations period recommenced on May 13, 2017; and (3) Petitioner had 20 until May 13, 2018 to file his federal habeas petition. (R. & R. at 7.) Rejecting Petitioner’s 21 argument that his Petition for Special Action filed in the Arizona Court of Appeals (and 22 subsequent Petition for Review to the Arizona Supreme Court) tolled the limitations period, 23 the Magistrate Judge concluded that Petitioner untimely initiated the instant federal habeas 24 proceeding on September 25, 2018. (Id. at 6–7.) For the following reasons, the Court 25 agrees. 26 In Arizona, a petition for special action is the equivalent of a petition for writ of 27

28 2 Petitioner does not object to the June 23, 2017 expiration date. (Obj. at 2 (incorrectly stating that expiration date is June 23, 2016).) 1 mandate.3 Ariz. R.P. Special Actions 1, 17B Ariz. Rev. Stat. Because a petition for special 2 action is not a request for collateral review, it does not toll AEDPA’s statute of limitations. 3 Borrud v. Ryan, No. CV-15-08043-PHX-SPL, 2017 WL 1057965, at *4 (D. Ariz. Mar. 21, 4 2017); see Hardiman v. Galaza, 58 F. App’x 708, 710 (9th Cir. 2003) (stating that petitions 5 for writ of mandate do not toll limitations period because they are not applications for State 6 PCR or other collateral review with respect to pertinent judgment or claims 7 under § 2244(d)(2)). 8 The Court is not otherwise persuaded by Petitioner’s conclusory reference to Gaston 9 v. Palmer.4 Petitioner states that Gaston “sets forth the proper analysis and standards 10 confirming that [Petitioner’s] special action petition and petition for review seeking 11 continuing ‘up the ladder’ collateral review” are “properly included within the tolling 12 statute.” (Obj. at 6–7.) First, simply stating that a cited case reflects the “proper analysis 13 and standards” does not constitute legal analysis. Second, Gaston involves PCR 14 proceedings in California state court—a system that the Ninth Circuit has referred to as 15 “not a typical ‘appeal’ state,” and the U.S. Supreme Court has referred to as “unique.” 16 Gaston, 417 F.3d at 1036 (“California is not a typical ‘appeal’ state.”); Carey v. Saffold, 17 536 U.S. 214, 227 (2002) (Kennedy, J., dissenting) (“On the Court’s view, California’s 18 procedures are ‘unique,’ . . . so giving them special treatment under the statute will affect 19 only that one State.”). Petitioner’s first objection is overruled, and the Report and 20 Recommendation is adopted with respect to its conclusion that statutory tolling does not 21 apply. 22 B. Objection Two 23 Petitioner objects to the Magistrate Judge’s “failure to specifically make and/or 24 affirm findings regarding the sworn testimony and uncontested evidence at trial 25 establishing the concentrations of the drugs/metabolites in Petitioner’s blood, and the 26 appropriate inferences to made therefrom.” (Obj. at 8.) Petitioner claims that “uncontested 27 3 Petitioner’s argument that “the ‘special action’ proceeding at issue . . . is not the 28 equivalent of a ‘writ of mandate’” is simply incorrect. (See Obj. at 5–6.) 4 417 F.3d 1030 (9th Cir. 2005), modified, 447 F.3d 1165 (9th Cir. 2006). 1 scientific evidence and sworn testimony conclusively establish[]” a factual defense to his 2 charge under A.R.S. § 28-1381(D). (Id.) Petitioner claims that uncontested evidence shows 3 that he was “properly using [] medications as ‘therapeutically’ prescribed by a licensed 4 physician.” (Id. at 9.) Petitioner also claims that his court-appointed attorney “failed to 5 introduce or enter into evidence additional physician and pharmacy records conclusively 6 proving the existence of valid and current prescriptions” for Klonopin and Xanax.5 (Id.) 7 Relying on this “new” evidence, Petitioner argues that he can pass through the “actual 8 innocence” or Schlup6 gateway. (Id. at 7); see McQuiggin v. Perkins, 569 U.S. 383, 391– 9 98 (2013) (holding that actual innocence or Schlup gateway to federal habeas review that 10 applies to procedural bars also applies to time-barred petitions under AEDPA). 11 Petitioner is wrong. First, under Schlup, the evidence presented must be “new 12 reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 13 accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. 14 at 324. The actual innocence exception, which Petitioner invokes, is confined to a highly 15 limited category of cases: “a petitioner does not meet the threshold requirement unless he 16 persuades the district court that, in light of the new evidence, no juror, acting reasonably, 17 would have voted to find him guilty beyond a reasonable doubt.” Id. at 329. But the record 18 reflects that Petitioner testified at his trial that he was taking all of the prescription drugs 19 found in his blood as prescribed by his doctor. (Doc. 38-1, Ex. 1, R. Appeal Ruling/Remand 20 (“Appeal Ruling”) at 1 (“[Petitioner] testified that he was taking all of the prescription 21 drugs (Valium, Xanax, and Klonopin) found in his blood as prescribed by his doctor.”).) 22 And Petitioner’s court-appointed attorney made a strategic decision not to enter the 23 “additional records” into evidence because they contained too much prejudicial 24 information. (Doc. 7-5, Ex. 5, Ruling on PCR Review at 3 (“[Petitioner] failed to provide 25 evidence to support his claim that his trial counsel’s decision to not provide the jury with 26 all his medical documentation, was not a strategic decision to shield [him] from any bias

27 5 “At trial, Petitioner’s court appointed attorney [] entered into evidence certified records from a licensed physician demonstrating that Petitioner had a valid and current prescription 28 for one of the medications (Valium) found in his bloodstream.” (Obj. at 9.) 6 Schlup v. Delo, 513 U.S. 298, 327 (1995). 1 or prejudice that jurors may have inferred from his prescription history.”).) 2 Second, Petitioner’s Objections fail to mention that at the time of the accident, 3 Petitioner had a BAC of 0.038. (Appeal Ruling at 1; Doc. 45, Reply to Obj. (“Reply”) at 4 7.) Further, following the accident, Petitioner was transported to a hospital where a blood 5 test revealed the presence of five drugs/metabolites—Alprazolam, 7-Aminoclonazepam, 6 Diazepam, Nordiazepam, and Oxazepam. (Appeal Ruling at 1; Reply at 7.) From these 7 facts alone, a reasonable jury could have concluded that Petitioner was not using his three 8 prescription medications as prescribed. Because Petitioner has failed to provide “new 9 reliable evidence” of his innocence, the Court concludes that he cannot pass through the 10 actual innocence gateway. Petitioner’s second objection is overruled, and the Report and 11 Recommendation is adopted with respect to its conclusion that the actual innocence 12 exception does not apply. 13 IT IS ORDERED overruling the Objections to the Magistrate Judge’s Report and 14 Recommendation (Doc. 42). 15 IT IS FUTHER ORDERED adopting the Report and Recommendation of the 16 Magistrate Judge as the Order of this Court (Doc. 41). 17 IT IS FURTHER ORDERED denying and dismissing Petitioner’s Second 18 Amended Petition for Writ of Habeas Corpus with prejudice (Doc. 7). 19 IT IS FURTHER ORDERED denying any Certificate of Appealability and leave 20 to proceed in forma pauperis on appeal because Petitioner has not made a substantial 21 showing of the denial of a constitutional right and because the dismissal of the petition is 22 justified by a plain procedural bar and jurists of reason would not find that procedural ruling 23 debatable. 24 , , , 25 . . . 26 . . . 27 . . . 28 . . . 2 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 3 4 Dated this 15th day of June, 2020. 5 6 Daten fibto 8 Susan R. Bolton 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-8-