Richard Neal Sutton v. Charles L. Ryan, et al.

• Court: District Court, D. Arizona
• Decided: February 13, 2018
• Docket: 2:17-cv-02701
• Status: Unknown

Opinion

1 2

6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Richard Neal Sutton, 8 Petitioner CV-17-2701-PHX-DGC (JFM) -vs- 9 Charles L. Ryan, et al., Report & Recommendation Respondents. on Petition for Writ of Habeas Corpus 10 11 I. MATTER UNDER CONSIDERATION 12 Petitioner, presently incarcerated in the Arizona State Prison Complex at 13 Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 14 2254 on August 9, 2017 (Doc. 1). On November 8, 2017 Respondents filed their 15 Limited Answer (Doc. 9). Petitioner filed a Reply on December 12, 2017 (Doc. 11). 16 The Petitioner's Petition is now ripe for consideration. Accordingly, the 17 undersigned makes the following proposed findings of fact, report, and recommendation 18 pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 19 of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 20 Procedure. 21 II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND 22 A. FACTUAL BACKGROUND 23 The Presentence Investigation provided the following factual background:1 24 On July 24, 2007, Jewish Family Services conducted an 25 intake evaluation for [the victim] to receive counseling through their 26 1 Although Federal Rule of Civil Procedure 5.2 does not mandate the redaction of 27 minors’ names when included in a record of a state court proceeding, the undersigned 1 ihnaadp pbreoepnr iastlee ebpeihnagv iionr bhye rt hbe edde feevnedrayn t,n wighhot wfoars htwero styeepafrast.h eCr.h Hilde 2 Protective Services and the police were notified. An investigation was conducted, revealing that the defendant had committed sexual 3 acts against his stepdaughter, [the victim]. The abuse occurred between March 14, 2003 and July 1, 2007. When it began, [the 4 victim] was eleven years old and the defendant was thirty-eight years old. The defendant had told [the victim]he would find her if he 5 was ever arrested because she told someone about his actions, even if he was only in jail for one week. He also threatened to hurt [the 6 victim] and her mother or hospitalize [the victim’s] mother for mental health issues if she did not do what he asked of her. 7 * * * The defendant was interviewed via telephone four times 8 between December 11, 2007 and December 20, 2007. He told the detective that [the victim] wanted to have a sexual relationship with 9 him. He was angry with [the victim] for pursuing him so aggressively. She had kissed him, asked him to have sex with her, 10 grabbed his penis, put his hand on her vagina, told him that her mother did not deserve him, got into the shower with him when he 11 was already in there, and got angry when he talked about other women. Initially, he yelled at her to stop every time she approached 12 him and attempted to push her away by scaring her and talking about having sex with other women. Later, he gave in to her 13 demands. He took off her bra only when she asked him to unbutton it. He allowed her to watch a pornographic movie only after she 14 insisted and grabbed the remote control from him. He was only trying to make her happy and eventually, he began to fall in love 15 with her. He simulated having sex with her by rubbing against her, looked up pornographic images on the computer with her, and 16 allowed her to rub his penis. He did not start any of these acts, she did. 17 (Exhibit I, Present. Investig. at 1-3.) (Exhibits to the Answer, Doc. 9, are referenced 18 herein as “Exhibit ___.”) Subsequently, Petitioner sent a text message to the victim’s 19 mother indicating an intent to kill himself. Police responded, Petitioner refused to exit 20 his apartment, and discharged a firearm. He eventually was convinced to unload the 21 gun, exited the residence, and was arrested. (Id. at 3.) 22

23 B. PROCEEDINGS AT TRIAL 24 On December 31, 2007, Petitioner was indicted in Maricopa County Superior 25 Court on 15 charges, including sexual conduct with a minor, molestation, attempted 26 molestation, sexual abuse, furnishing obscene materials to a minor, aggravated assault, 27 and sexual abuse. (Exhibit A, Indictment.) 1 On March 20, 2008, Petitioner appeared with counsel for a settlement conference. 2 The prosecution was offering a plea agreement that included a stipulation to a 35 year 3 sentence, with the opportunity for early release. (Exhibit S, R.T. 3/20/8.) No resolution 4 was reached. 5 On March 27, 2008, counsel filed a Motion for Full Rule 11 Evaluation (Exhibit 6 B) Evaluators were appointed (Exhibit C, M.E. 4/18/8), but rendered opposing opinions 7 (Exhibit D, M.E. 5/8/8). Accordingly, a third evaluator was appointed. (Id.) Petitioner 8 was eventually found incompetent to stand trial, and was ordered to undergo restorative 9 treatment. (Exhibit E, M.E. 6/26/8.) Ten weeks later, on September 4, 2008, the court 10 found that Petitioner had been restored to competency, and ordered the case to proceed. 11 (Exhibit F, M.E. 9/4/8.) 12 On February 3, 2009, Petitioner entered into a written Plea Agreement (Exhibit 13 G), agreeing to plead guilty to one charge of sexual conduct with a minor, and two 14 amended charges of attempted molestation of a child. In exchange, the parties agreed to 15 a stipulated sentence of 20-27 years on the sexual conduct charge, and lifetime probation 16 on the other charges. On February 9, 2009, Petitioner entered his plea of guilty. (Exhibit 17 H, M.E. 2/9/09.) The following exchange occurred at the change of plea:

18 THE COURT: Have you used any alcohol or illegal drugs in the last 24 hours? 19 THE DEFENDANT: No. THE COURT: Do you take any medicine that might affect 20 your ability to understand what's happening here today? THE DEFENDANT: No. 21 THE COURT: Do you need any medicine in order to understand what's happening here today that you are not taking? 22 THE DEFENDANT: No. * * * 23 THE COURT: Did you read the plea agreement, or have it read to you, word for word before you signed it? 24 THE DEFENDANT: Yes. THE COURT: Did your lawyer explain it to you? 25 THE DEFENDANT: Yes. THE COURT: Did you understand that conversation or 26 conversations with your lawyer? THE DEFENDANT: Yes. 27 THE COURT: Have you had enough time with your lawyer 1 you miTghHt Eh aCvOe UhaRdT a:b Aountd t hhea sc aysoeu?r l awyer answered any questions 2 THE DEFENDANT: Yes. THE COURT: Mr. Souccar, do you have any information 3 that might suggest your client is not competent to enter a plea today? 4 MR. SOUCCAR [defense counsel]: No, Your Honor. And, just for the record, Mr. Sutton did go through the Rule 11 process. 5 He was found originally not competent by numerous doctors. But was placed in the restoration program and was found to be 6 competent. So I believe at this point he is competent to stand trial. 7 (Exhibit T, R.T. 2/9/9 at 3-4.) 8 On April 10, 2009, the court sentenced Petitioner to 20 years on the sexual 9 conduct charge (the lower end of the stipulated range), and lifetime probation on the 10 remaining two charges. (Exhibit J, Sentence, 4/10/9; Exhibit U, R.T. 4/10/9.) 11 C. PROCEEDINGS ON DIRECT APPEAL 12 Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.) 13 Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. 14 See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 15 614, 616 (1995). 16

17 D. PROCEEDINGS ON POST-CONVICTION RELIEF 18 First PCR Proceeding - Over five years later, on April 23, 2014, Petitioner filed 19 a Notice of Post-Conviction Relief (Exhibit K). The notice was dated April 17, 2014. 20 (Id. at 3.) 21 On June 23, 2014, the PCR court summarily dismissed the proceeding, finding 22 that the notice was untimely under Arizona Rule of Criminal Procedure 32.4, and that the 23 facts alleged did not assert a claim exempted from the time limits of Rule 32.4. (Exhibit 24 L, Order 6/23/14.) 25 Petitioner did not seek review by the Arizona Court of Appeals of the dismissal. 26 (Petition, Doc. 1 at 5.) 27 Second PCR Proceeding - Over two years later, on November 4, 2016, Petitioner 1 filed a second Notice of Post-Conviction Relief (Exhibit M). The notice was dated 2 October 24, 2016. (Id. at 3.) 3 On February 1, 2017, the PCR court summarily dismissed the proceeding, finding 4 that the notice was precluded under Arizona Rule of Criminal Procedure 32.2(a) or (b), 5 and that allegations of lack of counsel did not justify relief from the preclusion. (Exhibit 6 N, Order 2/1/17.) 7 Petitioner did not seek review by the Arizona Court of Appeals of the dismissal. 8 (Petition, Doc. 1 at 5.) 9 E. STATE HABEAS PROCEEDING 10 Six weeks later, on March 16, 2017, Petitioner filed a Petition for Writ of Habeas 11 Corpus (Exhibit O), Memorandum (Exhibit P) and Exhibits (Exhibit Q) with the Arizona 12 Supreme Court. The simultaneously filed Memorandum contains a certificate of service 13 dated March 14, 2017. (Exhibit P at 12.) On July 11, 2017, the Arizona Supreme Court 14 summarily denied the Petition. (Exhibit R, Order 7/11/17.) 15

16 F. PRESENT FEDERAL HABEAS PROCEEDINGS 17 Petition – Less than a month later, Petitioner commenced the current case by 18 filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 9, 19 2017 (Doc. 1). Petitioner’s Petition asserts the following two grounds for relief: 20 In Ground One, he claims he received ineffective assistance of 21 counsel, in violation of the Sixth Amendment. In Ground Two, he contends his equal protection and due process rights were violated, 22 asserting the County Attorney, Petitioner’s defense counsel, and the trial court acted “in the interest of Arizona’s for-profit criminal 23 justice system[] to manufacture the crimes against Petitioner for the purposes of maintaining the for-profit criminal justice system in 24 Arizona.” 25 (Order 8/14/17, Doc. 3 at 1-2.) 26 Response - On November 8, 2017, Respondents filed their Limited Answer (Doc. 27 9). Respondents argue that the Petition is untimely and barred by the statute of 1 cause or prejudice to excuse his defaults. 2 Reply - On December 12, 2017, Petitioner filed a Reply (Doc. 11). Petitioner 3 argues that his claims are meritorious, any untimeliness or procedural default should be 4 excused because of his mental illness, adequate state procedures were not available, and 5 that he is actually innocent of the charges to which he pled guilty. 6 7 III. APPLICATION OF LAW TO FACTS A. TIMELINESS 8 1. One Year Limitations Period 9 Respondents assert that Petitioner’s Petition is untimely. As part of the Anti- 10 Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1- 11 year statute of limitations for all applications for writs of habeas corpus filed pursuant to 12 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 13 U.S.C. § 2244(d). Petitions filed beyond the one year limitations period are barred and 14 must be dismissed. Id. 15

16 2. Commencement of Limitations Period 17 The one-year statute of limitations on habeas petitions generally begins to run on 18 "the date on which the judgment became final by conclusion of direct review or the 19 expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).2 20 For an Arizona noncapital pleading defendant, the conviction becomes “final” at 21 the conclusion of the first “of-right” post-conviction proceeding under Rule 32. 22 “Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct 23 review within the meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 24 F.3d 710, 717 (9th Cir. 2007). “To bring an of-right proceeding under Rule 32, a plea- 25 convicted defendant must provide to the Arizona Superior Court, within 90 days of 26

27 2 Later commencement times can result from a state created impediment, newly 1 conviction and sentencing in that court, notice of his or her intent to file a Petition for 2 Post-Conviction Review.” Id. at 715 (citing Ariz. R.Crim. P. 32.4(a)). 3 Here, Petitioner’s first PCR proceeding was filed some five years after his 4 sentencing, and consequently did not qualify as an “of-right” PCR proceeding. 5 Accordingly, his conviction became final 90 days after his sentencing, when the time to 6 file an of-right proceeding expired, or on July 9, 2009.3 7 Therefore, Petitioner’s one year began running on July 10, 2009, and without any 8 tolling expired on July 9, 2010.4 9 3. Timeliness Without Tolling 10 Petitioner’s Petition (Doc. 1) was filed on August 9, 2017. 11 However, the Petition contains a declaration under penalty of perjury by Plaintiff 12 that the petition “was placed in the prison mailing system on August 7, 2017.” “In 13 determining when a pro se state or federal petition is filed, the ‘mailbox’ rule applies. A 14 15

16 3 For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme 17 Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The Supreme Court “can review, however, only judgments of a 18 ‘state court of last resort’ or of a lower state court if the ‘state court of last resort’ has denied discretionary review.” Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (citing U.S. 19 Sup.Ct. R. 13.1 and 28 U.S.C. § 1257(a)). Here, Petitioner did not seek direct review by the Arizona Supreme Court in a direct appeal proceeding. Accordingly, the time for 20 seeking a writ of certiorari with the U.S. Supreme Court cannot be considered in determining when Petitioner's judgment became final. Id. 21

4 Respondents calculate the expiration date as one day later, on July 10, 2010. 22 (Answer, Doc. 9 at 12.) For purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply. Patterson v. 23 Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Rule 6(a)(1)(A) directs that the “the day of the event that triggers the period” is excluded. Thus, the one year commenced the day 24 after Petitioner’s conviction became final, or on July 10, 2009 (day one), and the last day was 364 days later, on July 9, 2010. See In re Embry, 831 F.3d 377, 381 (6th Cir. 2016) 25 (“the statute of limitations for bringing claims based on Johnson expired on June 26, 2016, one year after Johnson”); United States v. Gentry, 194 F. Supp. 3d 1073, 1083 (D. 26 Or. 2016) (petitioner asserting Johnson claim “had until June 26, 2016 to file his petition”). See also Patterson, 251 F.3d at 1246 (applying “anniversary method” under 27 Rule 6(a) to find that one year grace period from adoption of AEDPA statute of 1 petition is considered to be filed on the date a prisoner hands the petition to prison 2 officials for mailing.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Respondents 3 do not challenge Petitioner’s declaration, and the undersigned finds that his Petition was 4 delivered to prison officials for mailing on that date, and that it should be deemed “filed” 5 as of that date. 6 As determined in subsection (2) above, without any tolling Petitioner’s one year 7 habeas limitations period expired on July 9, 2010, making his August 7, 2017 Petition 8 over seven years delinquent. 9 4. Statutory Tolling 10 The AEDPA provides for tolling of the limitations period when a "properly filed 11 application for State post-conviction or other collateral relief with respect to the pertinent 12 judgment or claim is pending." 28 U.S.C. § 2244(d)(2). This provision only applies to 13 state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001). 14 Properly Filed - Statutory tolling of the habeas limitations period only results 15 from state applications that are “properly filed,” and an untimely application is never 16 “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 17 (2005). On the other hand, the fact that the application may contain procedurally barred 18 claims does not mean it is not “properly filed.” “[T]he question whether an application 19 has been ‘properly filed’ is quite separate from the question whether the claims 20 contained in the application are meritorious and free of procedural bar.” Artuz v. 21 Bennett, 531 U.S. 4, 9 (2000). 22 Even if the state court provides alternative grounds for disposing of the state 23 application, a ruling that the application was untimely precludes it from being “properly 24 filed” and tolling the limitations period. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). 25 If the state court summarily disposes of a state application without identifying if it was 26 on timeliness grounds, or otherwise fails to give a clear indication whether it has deemed 27 1 delay in each case and determine what the state courts would have held in respect to 2 timeliness.” Evans v. Chavis, 546 U.S. 189, 198 (2006). 3 For purposes of applying the “properly filed” requirement of § 2244(d), the 4 federal courts look to the “last reasoned decision” of the state courts. Curiel v. Miller, 5 830 F.3d 864, 869 (9th Cir. 2016). 6 Mailbox Rule - For purposes of calculating tolling under § 2244(d), the federal 7 prisoner “mailbox rule” applies. Under this rule, a prisoner’s state filings are deemed 8 “filed” (and tolling thus commenced) when they are delivered to prison officials for 9 mailing. In Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000), the Ninth Circuit noted:

10 [I]n Saffold v. Newland, 224 F.3d 1087 (9th Cir.2000), we squarely held that the mailbox rule applies with equal force to the filing of 11 state as well as federal petitions, because "[a]t both times, the conditions that led to the adoption of the mailbox rule are present; 12 the prisoner is powerless and unable to control the time of delivery of documents to the court." Id. at 1091. 13 Id. at 575. 14 Similarly, the “mailbox rule” applies to determining whether an Arizona 15 prisoner’s state filings were timely. Although a state may direct that the prison mailbox 16 rule does not apply to filings in its court, see Orpiada v. McDaniel, 750 F.3d 1086, 1090 17 (9th Cir. 2014), Arizona has applied the rule to a variety of its state proceedings. See e.g. 18 Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.1995) (notice of direct appeal); 19 State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App.1999) (PCR notice); State 20 v. Goracke, 210 Ariz. 20, 23, 106 P.3d 1035, 1038 (App. 2005) (petition for review to 21 Arizona Supreme Court). 22 Application to Petitioner - Petitioner’s limitations period commenced running 23 on July 10, 2009 and expired on July 9, 2010. Petitioner’s First PCR proceeding was 24 commenced on April 23, 2014, when Petitioner filed his first PCR notice (Exhibit K). At 25 that time, his one year had been expired for over 45 months. Once the statute has run, a 26 subsequent post-conviction or collateral relief filing does not reset the running of the one 27 1 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, Petitioner has no statutory tolling 2 resulting from his first PCR proceeding, or from his second PCR proceedings, or from 3 his state Petition for Writ of Habeas Corpus, and his limitations period expired on July 9, 4 2010.5 5 Consequently, Petitioner’s habeas petition remains over seven years delinquent. 6 Even if Petitioner could establish equitable tolling for some portion of the time 7 since his conviction became final, and consequently was entitled to statutory tolling for 8 all three of his state petitions, they were only pending for at most 296 days combined. 9 His first PCR notice was dated April 17, 2014 (Exhibit K), and was dismissed 67 days 10 later on June 23, 2014 (Exhibit L). His second PCR notice was dated October 24, 2016 11 (Exhibit M, and was dismissed 110 days later, on February 1, 2017 (Exhibit N). His 12 state habeas petition memorandum was dated March 14, 2017 (Exhibit P), and the 13 petition was dismissed 119 days later, on July 11, 2017 (Exhibit R). Those 296 days are 14 insufficient to offset the eight years between when Petitioner’s conviction became final 15 in 2009, and when he filed the instant petition in 2017. 16 5. Equitable Tolling 17 "Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is 18 available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's 19 control make it impossible to file a petition on time' and ‘the extraordinary circumstances 20 were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 21 2003). 22

To receive equitable tolling, [t]he petitioner must establish two 23 elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The 24 petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the 25 26 5 Even assuming Petitioner were incapable, because of mental impairment, of filing at 27 any time prior to his first state PCR notice, more than 28 months elapsed between the 1 on time. 2 Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations 3 omitted). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] 4 is very high, lest the exceptions swallow the rule.’ ” Miranda v. Castro,292 F.3d 1063, 5 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.). 6 Even if extraordinary circumstances prevent a petitioner from filing for a time, 7 equitable tolling will not apply if he does not continue to diligently pursue filing 8 afterwards. “If the person seeking equitable tolling has not exercised reasonable 9 diligence in attempting to file after the extraordinary circumstances began, the link of 10 causation between the extraordinary circumstances and the failure to file is broken, and 11 the extraordinary circumstances therefore did not prevent timely filing.” Valverde v. 12 Stinson, 224 F.3d 129, 134 (2nd Cir. 2000). 13 Petitioner bears the burden of proof on the existence of cause for equitable tolling. 14 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 15 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of 16 limitations on habeas petitions, but the petitioner bears the burden of showing that 17 equitable tolling is appropriate.”). 18 Petitioner argues that he is entitled to equitable tolling based on his seriously 19 mentally ill condition. (Reply, Doc. 11 at 13-14.) But mental illness alone, even serious 20 mental illness, is insufficient to justify equitable tolling. “A petitioner seeking equitable 21 tolling on the grounds of mental incompetence must show extraordinary circumstances, 22 such as an inability to rationally or factually personally understand the need to timely 23 file, or a mental state rendering an inability personally to prepare a habeas petition and 24 effectuate its filing.” Orthel v. Yates, 795 F.3d 935, 938 (9th Cir. 2015). In addition, 25 “the petitioner must show diligence in pursuing the claims to the extent he could 26 understand them, but that the mental impairment made it impossible to meet the filing 27 deadline under the totality of the circumstances, including reasonably available access to 1 “the petitioner must diligently seek assistance and exploit whatever assistance is 2 reasonably available.” Id. at 1101. “Where the record is amply developed, and where it 3 indicates that the petitioner's mental incompetence was not so severe as to cause the 4 untimely filing of his habeas petition, a district court is not obligated to hold evidentiary 5 hearings to further develop the factual record, notwithstanding a petitioner's allegations 6 of mental incompetence.” Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010). 7 Petitioner argues that he has been seriously mentally ill since age 6, that he was a 8 mental health patient while serving in the military in October, 1986, that he was initially 9 determined incompetent to stand trial, and that he has recently been determined by the 10 Veterans Administration to be entitled to a 70% disability. 11 The records presented by Petitioner from the Veterans Administration, effective 12 as of November 12, 2015, describes Petitioner’s disability as based on “major depressive 13 disorder, severe, with psychotic features (claimed as adjustment disorder, suicidal 14 gesture, borderline personality disorder, and depression).” (Reply, Doc. 11 at Exhibit A, 15 VA Letter at 2.) The VA record’s evaluation was based on a finding that Petitioner’s 16 condition “most closely approximates” the following:

17 Difficulty in adapting to stressful circumstances • Difficulty in adapting to work • Inability to establish and maintain effective 18 relationships • Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, 19 judgment, thinking, or mood • Depressed mood • Disturbances of motivation and mood • Flattened affect • Difficulty in adapting to a 20 worklike setting • Anxiety • Difficulty in establishing and maintaining effective work and social relationships • Chronic sleep 21 impairment • Panic attacks more than once a week 22 (Id.) The evaluation declined to find a 100% disability because Petitioner was not found 23 to meet the criteria of having:

24 such symptoms as: • gross impairment in thought processes or communication • persistent delusions or hallucinations • grossly 25 inappropriate behavior • persistent danger of hurting self or others • intermittent inability to perform activities of daily living (including 26 maintenance of minimal personal hygiene) • disorientation to time or place • memory loss for names of close relatives, own 27 occupation, or own name. 1 While Petitioner’s history certainly suggests some substantial mental illness, 2 Petitioner fails to proffer anything to suggest that during the entire time between his 3 conviction becoming final and the year prior to the filing of the instant petition, he has 4 remained persistently incapable of understanding the need to timely file or was rendered 5 unable to file. Indeed, Petitioner had been restored to competency during proceedings in 6 the trial court. Moreover, Petitioner makes clear that a portion of his mental health 7 issues resulting in his incompetency at trial were related to his failure to take his mental 8 health medications, and an addiction to opiates. Petitioner offers nothing to suggest that 9 he has since stopped taking prescribed mental health medications, or has returned to 10 abusing opiates. 11 Petitioner’s base intelligence is reflected not only by his filings (in the state court 12 and this court) but by the facts that he was able to be inducted into the military and 13 remain long enough to be stationed in Germany, and, according to the evaluation 14 submitted by Petitioner with his Petition, which determined Petitioner was incompetent 15 to stand trial (but could be restored with medication), Petitioner had been employed in 16 sales, and had a tenth grade education. (Petition, Doc. 1 at Exhibit B.) 17 Moreover, in the interim since trial, Petitioner has commenced two separate state 18 PCR proceedings, on April, 23, 2014 (Exhibit K), November 4, 2016 (Exhibit M), and a 19 state habeas proceeding on March 16, 2017 (Exhibit O). These were not petitions 20 indicative of one incapable of understanding a statute of limitations or of composing a 21 federal habeas petition. 22 The first PCR Notice included not only check box assertions, but the following 23 narrative:

24 I am requesting the court to correct the illegal pleas I was given. To correct the unconstitutional term of lifetime probation I was given. 25 And to sentence me with mitigating factors since the court found no aggravating factors at my sentencing proceeding. The offence date 26 on plea is incorrect. 27 (Exhibit K, PCR Not. 4/23/14 at 3.) 1 argument: Legal Argument 2 In Halbert v. Michigan, 545 U.S. 605, 616-17 (2005), the Supreme Court held that Due Process Clause and the Equal 3 Protection Clause required appointment of counsel for indigent defendants in their first appeal, even though the state treated first 4 appeals as discretionary when a conviction was based on a plea of guilty or nolo contendere. 5 As such, the trial court abused its discretion when it fail to grant counsel for the Notice of PCR filed on April 23, 2014, even 6 though Defendant’s filing was untimely.

7 Issues for the PCR Mr. Sutton is Seriously Mentally Ill (SMI), and he is 8 innocent of the crime alledged [sic] by the government. When Mr. Sutton was interviewed by police, he was living in an opiate 9 induced state of mind, as with not being on the mental health drugs. During the final police interview, he was overdosing on the opiates 10 he had been living on and was taken by ambulance to the hospital to deal with the overdosing. Because he was SMIS and addicted to 11 opiates, the police lied as to what he may of said during the interviews. 12 During Mr. Sutton’s county jail stay, he was kept in a clinical straight-jacket and did not know what he signed when the attorney 13 forced him to sign the plea. 14 (Exhibit M, PCR Not. 11/4/16 at Supplement (emphasis in original).) 15 Petitioner’s state habeas petition was filed with some eleven pages of clear, 16 concise, and well presented argument. (Exhibit P, Habeas Memorandum.) It did, 17 however, note that it was prepared “with help from an Inmate Paralegal.” (Id. at 11.) 18 But the substance of the memorandum included narratives that would have come from 19 Petitioner, relating his experiences prior to arrest, pretrial incarceration (id. at 2, 6), and 20 counsel’s representation (id. at 5-6). 21 Moreover, Petitioner has now managed to file the instant coherent and well pled 22 federal habeas petition, and reply in support. Petitioner proffers nothing to suggest that 23 his condition at the time he filed the instant petition and reply was any better than it was 24 when his state petitions were filed. Nor does he offer anything to suggest that the ability 25 required to “rationally or factually personally understand the need to timely file” a 26 federal petition, or “personally to prepare a [federal] habeas petition and effectuate its 27 filing” was greater than the ability required to file his two state PCR notices and state 1 Moreover, Petitioner proffers nothing to suggest that the inmate paralegal 2 assistance available to him with his state habeas petition was not available to him earlier 3 or that he was diligent in seeking out that or other assistance. 4 Even if the Court could presume that Petitioner was incapable of filing petitions 5 until the preparation of his first PCR proceeding, Petitioner did not file the instant federal 6 petition until some 40 months thereafter. 7 In sum, Petitioner establishes that he indeed suffers mental impairment. But, 8 Petitioner fails to meet his obligation of countering the ample evidence in the record that 9 at least one year passed (without a state petition pending) prior to the filing of the instant 10 Petition during which Petitioner could have filed understood the need to and have filed 11 his federal petition despite his disabilities. 12 6. Actual Innocence 13 To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 14 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas 15 petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 133 16 S.Ct. 1924, 1935 (2013). To invoke this exception to the statute of limitations, a 17 petitioner “’must show that it is more likely than not that no reasonable juror would have 18 convicted him in the light of the new evidence.’” Id. at 1935 (quoting Schlup v. Delo, 19 513 U.S. 298, 327 (1995)). This exception, referred to as the “Schlup gateway,” applies 20 “only when a petition presents ‘evidence of innocence so strong that a court cannot have 21 confidence in the outcome of the trial unless the court is also satisfied that the trial was 22 free of nonharmless constitutional error.’ ” Id. at 1936 (quoting Schlup, 513 U.S. at 23 316). 24 Petitioner makes claims of actual innocence in this proceeding. But those claims 25 are supported only by Petitioner’s own protestations of innocence and unsupported 26 allegations of a far ranging conspiracy between trial counsel, the prosecution, the trial 27 1 innocence, a Petitioner must support his claim with “new reliable evidence—whether it 2 be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 3 evidence.” Schlup, 513 U.S. at 324. 4 Petitioner’s own, self-serving, post-trial protestations of innocence are not the 5 type of reliable evidence which create a likelihood that no reasonable juror would have 6 convicted him. Nor does do they explain away his own admissions of guilt, albeit 7 proffered with excuses of provocation by the victim. 8 And, even if the Court were to presume Petitioner’s allegations of the profit 9 motives at play in a system with for-profit prisons and federal grants for specific crimes, 10 Petitioner fails to offer any explanation how that establishes a conspiracy between all the 11 parties he alleges to be involved. It leaves the question to be answered whether 12 disparities in incarceration result from incarceration of the innocent in incentivized 13 jurisdictions or the lack of incarceration for the guilty in the jurisdictions without such a 14 system. 15 Petitioner fails to meet his burden of establishing his actual innocence within the 16 meaning of McQuiggin. 17 7. Summary re Statute of Limitations 18 Petitioner’s one year habeas limitations period commenced running on July 10, 19 2009, and expired on July 9, 2010, making his August 9, 2017 Petition over seven years 20 delinquent. Petitioner has shown no basis for statutory tolling or equitable tolling, or 21 actual innocence to avoid the effects of his delay. Consequently, the Petition must be 22 dismissed with prejudice as barred by the habeas statute of limitations. 23

24 B. OTHER DEFENSES 25 Because the undersigned concludes that Petitioner’s Petition is plainly barred by 26 the statute of limitations, and because resolution of Petitioner’s assertions of cause and 27 prejudice would likely ultimately turn on a more complicated analysis of the periods of 1 Petitioner’s purported inability to litigate (particularly in the limited period of time 2 immediately after conviction in which his state remedies were being procedurally 3 defaulted), Respondents procedural default defense is not reached. 4 5 IV. CERTIFICATE OF APPEALABILITY 6 Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires 7 that in habeas cases the “district court must issue or deny a certificate of appealability 8 when it enters a final order adverse to the applicant.” Such certificates are required in 9 cases concerning detention arising “out of process issued by a State court”, or in a 10 proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 11 U.S.C. § 2253(c)(1). 12 Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges 13 detention pursuant to a State court judgment. The recommendations if accepted will 14 result in Petitioner’s Petition being resolved adversely to Petitioner. Accordingly, a 15 decision on a certificate of appealability is required. 16 Applicable Standards - The standard for issuing a certificate of appealability 17 (“COA”) is whether the applicant has “made a substantial showing of the denial of a 18 constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 19 constitutional claims on the merits, the showing required to satisfy § 2253(c) is 20 straightforward: The petitioner must demonstrate that reasonable jurists would find the 21 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 22 McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 23 on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 24 COA should issue when the prisoner shows, at least, that jurists of reason would find it 25 debatable whether the petition states a valid claim of the denial of a constitutional right 26 and that jurists of reason would find it debatable whether the district court was correct in 27 its procedural ruling.” Id. 1 district court’s judgment, that decision will be on procedural grounds. Under the 2 reasoning set forth herein, jurists of reason would not find it debatable whether the 3 district court was correct in its procedural ruling. 4 Accordingly, to the extent that the Court adopts this Report & Recommendation 5 as to the Petition, a certificate of appealability should be denied. 6 7 V. RECOMMENDATION 8 IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ 9 of Habeas Corpus, filed August 9, 2017 (Doc. 1) be DISMISSED WITH PREJUDICE. 10 IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 11 and recommendations are adopted in the District Court’s order, a Certificate of 12 Appealability be DENIED. 13 VI. EFFECT OF RECOMMENDATION 14 This recommendation is not an order that is immediately appealable to the Ninth 15 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 16 of Appellate Procedure, should not be filed until entry of the district court's judgment. 17 However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 18 shall have fourteen (14) days from the date of service of a copy of this recommendation 19 within which to file specific written objections with the Court. See also Rule 8(b), Rules 20 Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 21 within which to file a response to the objections. Failure to timely file objections to any 22 findings or recommendations of the Magistrate Judge will be considered a waiver of a 23 party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 24 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's 25 right to appellate review of the findings of fact in an order or judgment entered pursuant 26 to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146- 27 1 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and 3]| Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” 5 Dated: February 13, 2018 ‘ I7-2TOTE 0208 on HC dcx United States Magistrate Judge 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28