Simpson 268686 v. Thornell

• Court: District Court, D. Arizona
• Decided: August 4, 2025
• Docket: 4:24-cv-00296
• Status: Unknown

Opinion

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

9 Vincent S Simpson, No. CV-24-00296-TUC-JGZ

10 Petitioner, ORDER

11 v.

12 Ryan Thornell,

13 Respondent. 14 15 Pending before the Court is Petitioner Vincent Simpson’s Petition Under 28 U.S.C. 16 § 2254 for a Writ of Habeas Corpus by a Person in State Custody. (Doc. 6.) Respondents 17 filed a Limited Answer to the Petition (Doc. 15), and Simpson replied (Doc. 16). The Court 18 will dismiss the Petition because it is untimely. 19 I. BACKGROUND 20 The factual background is set forth in the Arizona Court of Appeals decision.1 See 21 State v. Simpson, No. 2 CA-CR 2016-0155, 2017 WL 1207407, ¶ 2 (Ariz. Ct. App. Mar. 22 31, 2017). 23 In July 2014, Simpson met then twelve-year-old T.N. and ten- year-old J.B. after introducing himself to their mother, M.C., 24 in a grocery store parking lot in Nogales, Arizona. Later, Simpson offered to watch T.N. and J.B. while M.C. ran 25 errands. M.C. was initially reluctant to agree but did so after Simpson introduced her to his mother and grandmother, with 26 whom he lived, and provided M.C. with a “collection notice” 27 1 The determination of facts by the state court is afforded a presumption of correctness. 28 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007). 1 with his “information on it.” 2 Later that day, Simpson told M.C. he wanted to take the boys to a birthday party in Rio Rico at his aunt’s house. They 3 agreed that M.C. would pick the boys up the following morning from Simpson’s house. Simpson also told M.C. he 4 would give the boys his cell phone so they so they [sic] could call M.C. at any point. 5 Simpson did not take the boys to the party. One of 6 Simpson’s friends arrived with “two kids,” and the group smoked marijuana. Simpson eventually took the boys back to 7 his house and instructed them to enter his bedroom through the window, while he entered through the front door. 8 Once inside Simpson’s bedroom, he kissed the boys’ 9 foreheads, told them he “love[d]” them, asked the boys to touch his genitals, asked to touch the boys’ genitals, asked the boys 10 to touch each other’s genitals, asked the boys to perform oral sex on him, and told the boys he wanted them to have sex with 11 him. At one point, he brought a television into the room and began playing pornographic videos. Simpson also put a sock in 12 a hole in the door created by a missing doorknob and put “boxes and bags of clothes and his dresser in front of the door.” 13 The boys asked to call their mother several times, but Simpson would not give them his phone. 14 Simpson, No. 2 CA-CR 2016-0155, 2017 WL 1207407, ¶¶ 2–5. 15 Simpson was charged with two counts of kidnapping, eight counts of luring a minor 16 for sexual exploitation, eight counts of attempted sexual conduct with a minor, two counts 17 of furnishing harmful items to a minor, two counts of transfer of marijuana, and two counts 18 of involving or using a minor in a drug offense. Id. ¶ 6. Before trial, the two counts of 19 involving or using a minor in a drug offense were dismissed on the state’s motion. Id. 20 During trial, two of the attempted sexual conduct with a minor charges were dismissed on 21 the state’s motion. Id. A jury found Simpson guilty of the remaining charges. Id. The trial 22 court sentenced Simpson to consecutive and concurrent terms of imprisonment, totaling 23 fifty-four years. Id. 24 II. PROCEDURAL HISTORY 25 A. Direct Appeal 26 Simpson timely appealed his conviction to the Arizona Court of Appeals on March 27 28, 2016. (Doc. 15-1 at 288, Ex. AA.) He presented two issues for review: (1) whether the 28 trial court erred by ruling that evidence of a prior sexual act was admissible; and (2) 1 whether the trial court erred by denying his motion for mistrial due to prosecutorial 2 misconduct. See Simpson, 2017 WL 1207407, ¶¶ 7, 22. On March 31, 2017, the Arizona 3 Court of Appeals affirmed Simpson’s convictions and sentences. Id. ¶ 34. On July 13, 2017, 4 the Arizona Court of Appeals issued its mandate stating the time for filing a motion for 5 reconsideration or petition for review with the Arizona Supreme Court had expired. (Doc. 6 15-1 at 133, Ex. E.) Simpson took no further action on direct appeal.2 7 B. Post-Conviction Relief 8 Simpson filed his first Notice of Post-Conviction Relief (“First PCR Notice”) on 9 September 28, 2017, claiming ineffective assistance of counsel (“IAC”). (Doc. 15-1 at 10 136–39, Ex. F.) Simpson did not provide the basis for his IAC claim. Simpson also filed a 11 Request for Preparation of Post-Conviction Relief Record. (Doc. 15-1 at 140–43, Ex. G.) 12 The court dismissed Simpson’s First PCR Notice on July 3, 2018, for failure to timely file 13 a Supplemental Pro Se Rule 32 Petition. (Doc. 15-1 at 151, Ex. I.) 14 On February 20, 2019,3 Simpson filed a PCR Notice and Request for all Documents 15 and Exhibits for Appeal (“Second PCR Notice”). (Doc. 15-1 at 152–61, Ex. J.) Simpson 16 stated he was unable to file a brief in the First PCR because he was not supplied with certain 17 trial records. (Id. at 153.) 18 On April 25, 2019, the PCR court affirmed its July 3, 2018 dismissal of the First

19 2 Simpson asserts that he appealed the Arizona Court of Appeals’ March 13, 2017 decision to the Arizona Supreme Court in March 2016 and also that he filed a petition for writ of 20 certiorari to the U.S. Supreme Court in April 2019. (Doc. 6 at 3.) The record does not support these claims. The mandate issued by the court of appeals expressly states that 21 Simpson failed to timely file a petition for review or motion for reconsideration of the March 31, 2017 decision. (Doc 15-1 at 133, Ex. E.) No filing is found on the Supreme 22 Court docket. Further, the Supreme Court may review a decision from “the highest court of a State in which a decision could be had,” 28 U.S.C. § 1257(a), but Simpson did not 23 seek or obtain a ruling from the Arizona Supreme Court—Arizona’s highest court. 3 In its order dismissing the Second PCR Notice, the court stated the Second Notice was 24 filed on March 11, 2019. (Doc. 15-1 at 167, Ex. L.) Arizona’s prisoner mailbox rule deems “the filing date to be the date when the document was delivered to jail or prison authorities 25 to deposit in the mail.” Ariz. R. Crim. P. 1.7(b)(4). The last page of the Second PCR Notice shows Simpson signed the notice, under penalty of perjury, on February 20, 2019, and 26 signed that he “mailed” the document on February 5, 2019. (Doc. 15-1 at 161, Ex. J.) Clearly, the February 5th mailing date cannot be correct if Simpson did not sign the 27 document until February 20, 2019. Determination of the exact filing date is not relevant to this Court’s analysis as Simpson’s Petition for Habeas Corpus is untimely under any of the 28 three dates. The Court uses the February 20, 2019 date as it is the most favorable, plausible date. 1 PCR. (Doc. 15-1 at 166–68, Ex. L.) The court explained that Simpson’s First PCR petition 2 was due 60 days after filing of his First PCR Notice on September 28, 2017; Simpson did 3 not seek an extension of the deadline; transcripts and pleadings were mailed by the court 4 to Simpson on December 13, 2017; and Simpson did not seek an extension thereafter or 5 seek relief from the court’s dismissal dated July 3, 2018. (Id. at 167.) The court concluded 6 Simpson failed to comply with the time requirements of Rule 32.4(c)(2) of the Arizona 7 Rules of Criminal Procedure, and no extraordinary circumstances justified an extension of 8 the Rule 32 deadlines. (Id. at 167–68.) 9 C. Federal Habeas Corpus Petition 10 On June 11, 2024, Simpson filed a pro se “Petition for Direct Collateral Review 11 Under 28 U.S.C. § 1257(a).” (Doc. 1.) In an August 21, 2024 Order, the Court construed 12 the Petition for Direct Collateral Review as a Petition for Writ of Habeas Corpus filed 13 pursuant to 28 U.S.C. § 2254, dismissed the petition with leave to amend, and gave 14 Simpson 30 days to file an amended petition on a court-approved form. (Doc. 5.) 15 On September 10, 2024, Simpson filed the pending Amended § 2254 Petition 16 (“Petition”) naming Ryan Thornell and the Arizona Attorney General as Respondents. 17 (Doc. 6.) In a screening order, the Court found Simpson raised three possible grounds for 18 relief: 19 In Ground One, Petitioner appears to claim that his due process rights and right to counsel were violated when his sentencing attorney “only objected 20 on a few issues” and “failed to object when the State prosecutor manipulated the ‘alle[]ged accusers[’]’ statements.” 21 In Ground Two, Petitioner alleges that his due process rights were violated 22 when he was vindictively prosecuted and that his due process rights and right 23 to counsel were violated when his trial counsel failed to object to and the trial court failed to suppress the victims’ statements, which were “inconsistent, 24 ‘made-up’ and completely contradictory to each other[].” 25 In Ground Three, Petitioner appears to allege that he was subjected to double jeopardy as a result of, and received ineffective assistance of counsel with 26 respect to, his indictment, which was duplicitous, constructively amended, and issued without probable cause. 27 (Doc. 10 at 2–3.) 28 On January 16, 2025, Respondents filed a Limited Answer arguing the Petition is 1 time-barred and Simpson’s claims are procedurally defaulted. (Doc. 15.)4 2 III. DISCUSSION 3 Federal district courts may entertain habeas applications on behalf of persons in 4 custody pursuant to state court judgments “only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 6 A court may not grant habeas relief unless the state court’s decision was (1) “contrary to, 7 or involved an unreasonable application of, clearly established Federal law, as determined 8 by the Supreme Court,” or (2) “was based on an unreasonable determination of the facts in 9 light of the evidence presented in the State court proceeding.” Id. § 2254(d); see Cullen v. 10 Pinholster, 563 U.S. 170, 181 (2011). “A decision involves an ‘unreasonable application’ 11 of clearly established federal law . . . if it ‘identifies the correct governing legal principle 12 . . . but unreasonably applies that principle to the facts of the prisoner's case.’” Vega v. 13 Ryan, 757 F.3d 960, 965 (9th Cir. 2014) (quoting Williams v. Taylor, 529 U.S. 362, 413 14 (2000)). A state court’s factual finding is not unreasonable simply because the federal 15 habeas court reaches a different conclusion. Id. Courts presume that the state court’s factual 16 findings are correct unless the petitioner “rebuts the presumption of correctness by clear 17 and convincing evidence.” Id. “A state court’s determination that a claim lacks merit 18 precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the 19 correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) 20 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In analyzing a § 2254 21 petition, review is limited to the record that was before the state court that adjudicated the 22 merits of the claim. Pinholster, 563 U.S. at 181. 23 Whether a petition is time-barred is a threshold issue that must be resolved before 24 considering other procedural issues. See White v. Klitzkie, 281 F.3d 920, 921–22 (9th Cir. 25 2002) (affirming the dismissal of the habeas petition for untimeliness, without reaching the 26 procedural default grounds that the district court dismissed the petition on). The Anti- 27 4 On January 29, 2025, Simpson filed a document entitled “Object and Controvert the 28 Limited Answer,” in which he requests an evidentiary hearing and mistakenly asserts Respondents were ordered to answer his initial § 1257 pleading on its merits. (Doc. 16.) 1 Terrorism and Effective Death Penalty Act's (“AEDPA”) one-year statute of limitations 2 applies here. See 28 U.S.C. § 2244(d)(1); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 3 1999). The limitation period runs from “the date on which the judgment became final by 4 the conclusion of direct review or the expiration of the time for seeking such review.” 28 5 U.S.C. § 2244(d)(1)(A). The time during which a properly filed application for State post- 6 conviction or other collateral review is pending is not counted toward the limitations 7 period. Id. § 2244(d)(2). 8 The Arizona Court of Appeals affirmed Simpson’s convictions and sentences on 9 March 31, 2017. Because Simpson did not file a petition for review in the Arizona Supreme 10 Court, Simpson’s convictions became final 30 days later, on April 30, 2017, when the time 11 for filing a petition for review expired. See Hemmerle v. Schriro, 495 F.3d 1069, 1073–74 12 (9th Cir. 2007) (holding in Arizona, a direct appeal is final upon the expiration of the time 13 for seeking review of the court of appeals’ decision in the Arizona Supreme Court); see 14 also Ariz. R. Crim. P. 31.21(b)(2)(A) (“A party must file a petition for review no later than 15 30 days after the Court of Appeals enters its decision, unless a party files a timely motion 16 for reconsideration in the Court of Appeals . . . .”). Thus, absent tolling, the statute of 17 limitations expired one year later, on May 1, 2018. See Fed. R. Civ. P. 6(a); Patterson v. 18 Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying the “anniversary method” to 19 calculate the end an AEDPA limitations period). 20 The limitations period ran 149 days,5 from May 1 to September 27, 2017, the day 21 before Simpson filed his First PCR notice. The limitations period was tolled 280 days— 22 from September 28, 2017, to July 5, 2018—while the action was pending. See 28 U.S.C. § 23 2244(d)(2). The limitations period began to run again on July 6, 2018, and expired 216 24 days later, on February 7, 2019.6 Simpson failed to file his Petition for Habeas Corpus until

25 5 Respondents state the limitations period ran 77 days. (Doc. 15 at 6.) It appears Respondents mistakenly utilized July 13, 2017—the date on which the mandated issued— 26 rather than April 30, 2017—the date the decision became final, as the start date for their calculation; Respondents had correctly stated the limitations period should be calculated 27 from the date Simpson’s conviction became final. (Id. at 5–6.) 6 The limitations period was not tolled by Simpson’s filing of the Second PCR on March 28 11, 2019. The Second PCR was untimely and therefore not properly filed. See 28 U.S.C. § 2244(d)(2) (providing for tolling of limitations period while “properly filed application for 1 June 11, 2024, more than five years later. The Petition therefore is untimely. 2 A. Equitable Tolling 3 In his Petition, Simpson was required to explain why the one-year statute of 4 limitations does not bar his Petition. (Doc. 6 at 11.)7 Simpson responded: “Due to the 5 Tolling Process and the COVID-19 Restrictions.” (Id.) Equitable tolling is not warranted 6 in the circumstances presented. 7 To be entitled to equitable tolling a petitioner must affirmatively demonstrate that: 8 (1) he diligently pursued his rights; and (2) some extraordinary circumstance beyond his 9 control stood in his way. See Pace, 544 U.S. at 418. “The petitioner must additionally show 10 that the extraordinary circumstances were the cause of his untimeliness, and that the 11 extraordinary circumstances made it impossible to file a petition on time.” Ramirez v. 12 Yates, 571 F.3d 993, 997 (9th Cir. 2009) (citations and internal quotations omitted). “[T]he 13 threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow 14 the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting 15 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Although pro se status alone 16 does not warrant equitable tolling, “it informs and colors the lens through which we view 17 the filings, and whether these filings made sufficient allegations of diligence.” Roy v. 18 Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (citing Balistreri v. Pacifica Police Dep't, 901 19 F.2d 696, 699 (9th Cir. 1990) (“This court recognizes that it has a duty to ensure that pro

20 State post-conviction or other collateral review” is pending). When the state court rejects a petition for post-conviction relief as untimely, it is not “properly filed” and does not toll 21 the limitations period under § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). It could be argued that Simpson’s First PCR application also was not “properly filed” 22 because its delivery and acceptance was not “in compliance with the applicable laws and rules governing filings,” Artuz v. Bennett, 531 U.S. 4, 8 (2000), although Respondents do 23 not present this argument. Simpson timely filed the First PCR Notice, but because he failed to timely file the PCR petition, which was due 60 days later, the PCR court dismissed the 24 action as untimely. (Doc. 15-1 at 167); see Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (holding petitioner’s “untimely petition must be treated as improperly filed, or as 25 though it never existed, for purposes of section 2244(d)”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (“Under Pace, if a state court denies a petition as untimely, none of 26 the time before or during the court’s consideration of that petition is statutorily tolled.”), amended, 439 F.3d 993 (9th Cir. 2006). 27 7 Question 16 of the form Petition reads: “TIMELINESS OF PETITION: If your judgment of conviction became final more than one year ago, you must explain why the one-year 28 statute of limitations in 28 U.S.C. § 2244(d) does not bar your petition.” (Doc. 6 at 11.) The form includes the section 2244(d) language. (Id.) 1 se litigators do not lose their right to a hearing on the merits of their claim due to ignorance 2 of technical procedural requirements.”)). 3 Simpson fails to show that he has met the high threshold necessary to excuse his 4 untimely filing. Simpson has not acted with due diligence. He failed to file a petition in 5 support of his First PCR filing and his Second PCR filing was untimely. Simpson did not 6 ask for reconsideration of or appeal the court’s dismissal of the two PCR actions and he 7 fails to identify any extraordinary circumstances which prevented him from diligently 8 pursuing those actions. While in some instances, COVID-19 precautions imposed on 9 prisoners have warranted equitable tolling, habeas “petitioners must demonstrate or explain 10 how they were diligent in pursuing their rights despite the restrictions.” Valles v. Allison, 11 No. 21-CV-0819-GPC-WVG, 2023 WL 2447520, at *8 (S.D. Cal. Mar. 10, 2023) (internal 12 citations omitted); United States v. Henry, No. 20-cv-01821, 2020 WL 7332657, at *4 13 (W.D. Pa. Dec. 14, 2020) (“The bottom line is that the COVID-19 pandemic does not 14 automatically warrant equitable tolling for any petitioner who seeks it on that basis. The 15 petitioner must establish that he was pursuing his rights diligently and that the COVID-19 16 pandemic specifically prevented him from filing his motion.”). Here, Simpson fails to show 17 that COVID-19 restrictions affected his ability to timely file his habeas action. The 18 limitations period for filing his Petition expired on February 7, 2019, more than a year 19 before the onset of the COVID pandemic in March 2020.8 Moreover, Simpon does not 20 identify any COVID-19 restrictions that prevented the filing of his Petition after the 21 pandemic began. Simpson is not entitled to equitable tolling; his Petition is time-barred.9 22 // 23 // 24 // 25 // 26 //

27 8 See D. Ariz. General Order 20-10 (Mar. 13, 2020) (restricting Court operations in response to the COVID-19 emergency). 28 9 Because the Court concludes that the Petition is untimely, it does not address the Respondents’ additional argument that Simpson’s claims are procedurally defaulted. 1 IT IS THEREFORE ORDERED: 2 1. Simpson’s Petition for Writ of Habeas Corpus (Doc. 6) is dismissed. The 3 || Clerk of Court is directed to enter judgment and close its file in this action. 4 2. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the 5 || event Petitioner files an appeal, the Court declines to issue a certificate of appealability 6 || because reasonable jurists would not find the Court’s procedural ruling debatable. See □□ Slack v. McDaniel, 529 U.S. 473, 484 (2000). 8 Dated this 4th day of August, 2025. 9 10 4 / sehr / . 11 p/ Jennifer G. i ps 12 Chiet United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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