Petition for Writ of Certiorari — Isaac Jude Rodriguez, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry
Supreme Court briefMar 17, 2022
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISAAC JUDE RODRIGUEZ,
Petitioner-Appellant,
V.
DAVID SHINN, Director; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
No.
FILED
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SEP 16 2021
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MOLLY C. DWYER, CLERK
U S. COURT OF APPEALS
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21-16049
D.C. No. 2:20-cv-00847-DWL
District of Arizona,
Phoenix
ORDER
Respondents-Appellees.
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Before:
WARDLAW and BADE, Circuit Judges.
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We have received and reviewed appellant’s response to this court’s June 22,
2021 order to show cause.
The request for a certificate of appealability is denied because the notice of
appeal was not timely filed and appellant did not file a motion to extend time for
appeal in the district court within the jurisdictional time limit. See 28 U.S.C.
§§2107, 2253(c)(2); Fed. R. App. P. 4(a)(5)(A).
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Any pending motions are denied as moot.
DENIED.
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Case: 2:20-cv-00847-DWL
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Document 24
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Isaac Jude Rodriguez,
Petitioner,
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v.
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David Shinn, et al.,
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No. CV-20-00847-PHX-DWL
ORDER
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Respondents.
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On April 30, 2020, Petitioner filed a petition for a writ of habeas corpus under 28
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U.S.C. § 2254 (“the Petition”). (Doc. 1.) On December 31, 2020, Magistrate Judge Fine
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issued a Report and Recommendation (“R&R”) concluding the Petition should be denied
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and dismissed with prejudice. (Doc. 18.) Afterward, Petitioner fried objections to the
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R&R. (Doc. 23.) For the following reasons, the Court overrules Petitioner’s objections,
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adopts the R&R, and terminates this action.
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I.
Relevant Background
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The Charges, Guilty Plea, And Sentence. In July 2012, Petitioner was indicted in .
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Maricopa County Superior Court on two counts of armed robbery, one count of theft, and
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six counts of kidnapping. (Doc. 18 at 2.) Petitioner ultimately pleaded guilty to two counts
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of armed robbery and four counts of kidnapping. (Id.) During the change of plea hearing,
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Petitioner admitted that on July 26,2011, he “committed armed robbery when in the course
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of taking property from” the two victims in “their immediate presence, against their will,
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by using threats of force with intent to coerce or surrender the property.” (Id.) Petitioner
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further admitted that “while taking the property of those two [victims], he was armed with
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a deadly weapon, that being a handgun.” (Id.) Regarding the kidnapping charges,
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Petitioner admitted he “knowingly restrained” the four victims “with the intent to inflict
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death, physical injury, or otherwise engage in the commission of a felony, that being, taking
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funds from a bank.” (Id.)
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On April 29, 2013, sentencing took place. (Id.) Petitioner was sentenced to
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concurrent terms of 14.5 years’ imprisonment on each of the armed robbery counts. (Id.)
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As for the kidnapping counts, the trial court suspended the imposition of sentence. (Id. at
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2-3.) All of the sentences were consistent with the plea agreement. (Id. at 3.)
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During the sentencing hearing, the trial court advised Petitioner of his right to
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petition for post-conviction relief (“PCR”), of his right to counsel in PCR proceedings, and
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of the requirement that Petitioner file a PCR notice within 90 days of sentencing. (Id.)
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Petitioner also received and signed a copy of a notice of right to post-conviction relief,
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which stated that Petitioner needed to file a PCR notice within 90 days of sentencing or
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Petitioner would forfeit the right to review. (Id.)
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The First PCR Proceeding. On May 27, 2016—over three years after sentencing—
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Petitioner filed a PCR notice for post-conviction DNA testing. (Id.) In this notice,
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Petitioner checked a box indicating that he was not raising an ineffective assistance of
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-counsel claim. (Id.)
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The trial court appointed PCR counsel to represent Petitioner, permitted the filing
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of a PCR petition for DNA testing, and deferred deciding whether Petitioner met the legal
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requirements for post-conviction DNA testing. (Id.) Over three months later, Petitioner s
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counsel filed a notice of completion, avowing that she was unable to find support for a
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petition for post-conviction DNA testing and requesting that Petitioner be permitted to file
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a pro per petition. (Id.)
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On January 11,2017, Petitioner filed a pro per petition regarding DNA testing. (Id.)
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In this petition, Petitioner also argued that his trial counsel had been ineffective. (Id.)
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Petitioner’s theory of ineffectiveness was that DNA testing hadn t been conducted during
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the underlying proceeding due to a conflict between himself and his trial counsel over
2 || which lab would conduct the testing. (Id. at 3-4.)
On June 30,2017, the PCR court issued its ruling denying the petition. (Id.) Among
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4 | other things, the court found that Petitioner had failed to meet the applicable state-law
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standards (by not demonstrating a reasonable probability that he would not have been
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convicted had the DNA evidence been re-tested) and noted that the factual basis for
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Petitioner’s conviction included other physical, testimonial, and circumstantial evidence.
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(Id. at 4-5.)
The Second PCR Proceeding. On July 11,2017, about two weeks after the superior
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10 || court denied his PCR petition for DNA testing, Petitioner filed a second PCR notice. (Id
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at 5.)
On October 29, 2017, Petitioner’s appointed counsel filed a notice of completion
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In his second PCR petition, Petitioner raised four grounds for relief. (Id. at 5-6.)
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16 || First, Petitioner claimed ineffective assistance of trial counsel at the plea-bargain stage,
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arguing that counsel was ineffective by failing to challenge or “investigate the state s
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evidence and by failing to disclose the results of the DNA re-testing before his plea
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19 I agreement. (Id.) Second, Petitioner claimed that his counsel was ineffective for “failing
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trial court erred by failing to consider his motion to change counsel, which deprived him
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of his right to counsel and forced him to involuntarily plead guilty. (Id.) Fourth, Petitioner
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claimed that the trial court violated his rights by “failing to comply with Rule 17.4 of the
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Arizona Rules of Criminal Procedure and Rule 11 of the Federal Rules of Procedure
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regarding guilty pleas”—specifically, by informing him of the possible sentencing ranges
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he would be subject to if convicted after a trial and by reviewing the state’s evidence against
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him, thereby coercing him into entering the plea. (Id.)
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On October 5,2018, the PCR court issued an order denying the second PCR petition.
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(Id. at 6.) Among other things, the court found that the second PCR petition was filed four
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years late, without valid excuse for the delay, and that Petitioner had failed to present new
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information that would allow for Petitioner’s ineffective assistance of counsel claim to be
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reviewed. (Id. at 6-7.)
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On July 15, 2019, Petitioner filed a petition for review with the Arizona Supreme
Court, which the Supreme Court denied as untimely. (Id.)
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These Proceedings. On April 22, 2020, Petitioner filed the Petition. (Id. at 8.) It
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raises six grounds for relief: (1) ineffective assistance of counsel at the pre-trial and plea
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bargaining stages; (2) ineffective assistance of counsel for failing to suppress witness
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identification evidence; (3) the trial court violated his right to counsel by failing to consider
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his motion to substitute counsel; (4) the trial court violated his Fifth and Fourteenth
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Amendment rights by coercing him into pleading guilty; (5) the superior court erroneously
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denied his second PCR petition; and (6) the Arizona Court of Appeals violated state law,
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as well as the Fourteenth Amendment, by dismissing his petition for review as untimely.
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(Id. at 8-9.)
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The R&R. The R&R concludes that Petitioner’s claims in Grounds One, Two,
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Three, and Four are barred by AEDPA’s one-year statute of limitations. (Doc. 19 at 9-15.)
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Specifically, the R&R concludes that Petitioner’s state-court conviction became final on
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July 29, 2013, upon expiration of the 90-day deadline for Petitioner to file a PCR notice
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after his April 29, 2013 sentencing hearing, and that AEDPA’s one-year statute of
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limitations therefore expired on July 29, 2014, rendering the Petition (which was filed in
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April 2020) “untimely filed by over five years.” (Id. at 10-11.) The R&R further concludes
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that (1) the concept of statutory tolling is inapplicable here because Petitioner didn’t file
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his first PCR notice until 2016, by which point the statute of limitations had already expired
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(id. at 11-12); (2) Petitioner is not entitled to equitable tolling because “Petitioner has not
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met his burden of showing that he has been pursuing his rights diligently and that some
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extraordinary circumstances prevented Petitioner from filing a timely petition for habeas
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corpus” (id. at 12-14); and (3) the “actual innocencdSchlup gateway” is inapplicable
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because, inter alia, Petitioner “has not presented new reliable evidence” establishing
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factual innocence {id. at 14-15).
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As for Grounds Five and Six, the R&R concludes they are “not cognizable” because
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they are premised on violations of state law and because procedural errors during PCR
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proceedings are not, in any event, cognizable under 28 U.S.C. § 2254. {Id. at 15-17.)
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II.
Legal Standard
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A party may file written objections to an R&R within fourteen days of being served
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with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those
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objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being
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served with a copy of the recommended disposition, a party may serve and file specific
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written objections to the proposed findings and recommendations.”).
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District courts are not required to review any portion of an R&R to which no specific
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objection has been made. See, e.g., Thomas v. Am, 474 U.S. 140, 149-50 (1985) ( It does
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not appear that Congress intended to require district court review of a magistrate’s factual
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or legal conclusions, under a de novo or any other standard, when neither party objects to
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those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)
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(“[T]he district judge must review the magistrate judge’s findings and recommendations
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de novo if objection is made, but not otherwise.”). Thus, district judges need not review
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an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013
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WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R&R would
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defeat the efficiencies intended by Congress, a general objection ‘has the same effect as
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would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2
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(D. Ariz. 2006) (“[Gjeneral objections to an R & R are tantamount to no objection at all.”).1
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See generally 2 S. Gensler, Federal Rules of Civil Procedure, Rules and
Commentary, Rule 72, at 457 (2021) (“A party who wishes to object to a magistrate judge s
ruling must make specific ana direct objections. General objections that do not direct the
district court to the issues in controversy are not sufficient.... [T]he objecting party must
specifically identify each issue for which he seeks district court review ....).
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III.
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Analysis
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Petitioner has filed written objections to the R&R. (Doc. 23.) The only specific
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argument raised by Petitioner is that “failure to consider [his] claims will result in a
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fundamental miscarriage of justice.” {Id. at 3.) Although not entirely clear, Petitioner’s
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position seems to be that (1) the R&R’s timeliness analysis as to Counts One, Two, Three,
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and Four was incorrect because those claims should be considered timely pursuant to the
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miscarriage-of-justice gateway, and (2) the R&R’s error with respect to that gateway was
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construing it as applying only to claims based on actual innocence, when in fact it allows
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for the presentation of any alleged “error that serious affect[s] the fairness, integrity or
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public reputation of judicial proceedings and other types of fundamental unjustness,
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independent of the defendant’s innocence.” {Id. at 5.)
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This objection is overruled because Petitioner’s position is foreclosed by Ninth
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Circuit law. Johnson v. Knowles, 541 F.3d 933,937 (9th Cir. 2008) (“[I]n light of Supreme
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Court precedent, as well as our own, we conclude that the miscarriage of justice exception
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is limited to those extraordinary cases where the petitioner asserts his innocence and
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establishes that the court cannot have confidence in the contrary finding of guilt. A
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petitioner who asserts only procedural violations without claiming actual innocence fails
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to meet this standard.”) (citation omitted). See also Baumgartner v. Ryan, 2020 WL
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9074811, *16 (D. Ariz. 2020) (“Although not explicitly limited to actual innocence claims,
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the Supreme Court has not yet recognized a ‘miscarriage ofjustice’ exception to exhaustion
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outside of actual innocence. The Ninth Circuit has expressly limited it to claims of actual
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innocence.”) (citations omitted).
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Accordingly, IT IS ORDERED that:
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(1)
Petitioner’s objections to the R&R (Doc. 23) are overruled.
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(2)
The R&R’s recommended disposition (Doc. 18) is accepted.
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(3)
The Petition (Doc. 1) is denied and dismissed with prejudice.
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(4)
A Certificate of Appealability and leave to proceed in forma pauperis on
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appeal are denied because dismissal is justified by a plain procedural bar and reasonable
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jurists would not find the procedural ruling debatable and because, for any portions of the
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Petition not procedurally barred, Petitioner has not made a substantial showing of the denial
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of a constitutional right and jurists of reason would not find the Court’s assessment of
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Petitioner’s claims debatable or wrong.
The Clerk shall enter judgment accordingly and terminate this action.
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(5)
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Dated this 7th day of May, 2021.
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^Dominic W, Lanza
United States District fudge
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Petitioner,
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v.
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David Shinn, et al.,
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NO. CV-20-00847-PHX-DWL
Isaac Jude Rodriguez,
JUDGMENT IN A CIVIL CASE
Respondents.
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Decision by Court. This action came for consideration before, the Court. The
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issues have been considered and a decision has been rendered.
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IT IS ORDERED AND ADJUDGED adopting the Report and Recommendation
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of the Magistrate Judge as the order of this Court. Petitioner’s Petition for Writ of
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Habeas Corpus pursuant to 28 U. S. C. § 2254 is denied and this action is hereby
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dismissed with prejudice.
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Debra D. Lucas
District Court Executive/Clerk of Court
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May 10, 2021
By
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Deputy Clerk
Case 2:20-cv-00847-DWL Document 18 Filed 12/31/20 Page 1 of 18
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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9 Isaac Jude Rodriguez,
Petitioner,
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No. CV-20-0847-PHX-DWL (DMF)
REPORT AND
RECOMMENDATION
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12 David Shinn, et al.,
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Respondents.
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TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT
JUDGE:
On April 22, 2020 f Petitioner Isaac Jude Rodriguez (“Petitioner”), who is confined
in the Arizona State Prison Complex-Yuma, filed a pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. I)2 (“Petition”). The Court required an answer
to the Petition (Doc. 5). Respondents timely filed a Limited Answer (Doc. 8). Petitioner
was granted several extensions to file his reply (Docs. 14, 16), and Petitioner filed a timely
reply on November 12, 2020 (Doc. 17). This matter is ripe.
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i The Petition was docketed by the Clerk of Court on April 30, 2020 (Doc. 1) .
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Petition contains a certificate of service indicating that Petitioner placed the Petition in the
prison mailing system on April 22, 2020 (Doc. I at 37). Pursuant to the prison mailbox
rule, the undersigned has used April 22, 2020, as the filing date. Porter v. Ollison, 620
F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to he filed on the date a prisoner
hands the petition to prison officials for mailing.”).
2 Citation to the record indicates documents as displayed in the official Court
electronic document filing system maintained by the District of Arizona under Case CV20-0847-PHX-DWL (DMF).
Case 2:20-cv-00847-DWL Document 18 Filed 12/31/20 Page 2 of 18
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This matter is on referral to the undersigned United States Magistrate Judge for
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further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of
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the Local Rules of Civil Procedure (Doc. 5 at 4). For the reasons set forth below, it is
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recommended that the Court deny and dismiss the Petition (Doc. 1) with prejudice and that
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the Court deny a certificate of appealability.
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I.
PROCEDURAL HISTORY
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A.
Charges, Guilty Pleas, and Sentences
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In July 2012, Petitioner was indicted in Maricopa County Superior Court, case
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number CR 2012-134503-001, with two counts of armed robbery, one count of theft, and
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six counts of kidnapping, all dangerous offenses (Doc. 8-1 at 4-10). The prosecution
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further alleged several aggravating circumstances and that Petitioner had multiple prior and
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historical felony convictions (Id. at 12-17). Before trial and represented by counsel,
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Petitioner pleaded guilty to two counts of armed robbery and four counts of kidnapping
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(Id. at 19-21). Following a colloquy with Petitioner, the trial court accepted Petitioner’s
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guilty pleas (Id. at 57-59, 69-82). During the change of plea hearing, Petitioner admitted
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that on July 26, 2011, he “committed armed robbery when in the course of taking property
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from” the two victims in “their immediate presence, against their will, by using threats of
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force with intent to coerce or surrender the property” (Id. at 79). Petitioner further admitted
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that “while taking the property of those two [victims], he was armed with a deadly weapon,
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that being a handgun” (Id.). Regarding the kidnapping charges, Petitioner admitted that he
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“knowingly restrained” the four victims “with the intent to inflict death, physical injury, or
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otherwise engage in the commission of a felony, that being, taking funds from a bank” (Id.
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at 79-80).
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At his sentencing hearing, Petitioner stated that he was “deeply remorseful for the
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pain and anguish [he] caused to all the victims and the victims’ families involved in the
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case” and “accepted] the punishment for committing armed robbery and the kidnapping
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charges” (Id. at 88). On April 29, 2013, the trial court sentenced Petitioner to concurrent
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terms of 14.5 years’ imprisonment for each of the armed robbery convictions; for each of
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the kidnapping convictions, the trial court suspended the imposition of sentence and
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imposed instead concurrent terms of 7 years’ probation upon Petitioner’s release from
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prison {Id. at 23-38, 84-96). All of the sentences imposed were consistent with the plea
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agreement {Id. at 19-21, 23-38, 84-96).
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At sentencing in open court, the trial court advised Petitioner of his “right to petition
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the [c]ourt for [p]ost-[c]onviction [r]elief’, of Petitioner’s right to counsel for post
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conviction relief proceedings, and of the requirement that Petitioner file a notice of post
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conviction relief (“PCR notice”) within ninety days of sentencing {Id. at 94). Also on April
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29, 2013, the day of his sentencing, Petitioner signed and received a copy of a notice of
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right to post-conviction relief {Id. at 102). The notice acknowledged that Petitioner needed
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to file a PCR notice within ninety (90) days of sentencing or Petitioner would forfeit the
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right to review {Id ).
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B.
Post-Conviction Relief (“PCR”) Proceedings
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First PCR proceeding
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Over three years after his sentencing, on May 27,2016, Petitioner filed a PCR notice
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for post-conviction DNA testing under former Arizona Rule of Criminal Procedure 32.12,
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which is now Arizona Rule of Criminal Procedure 32.17 (Doc. 8-1 at 104-106). Petitioner
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checked the box on the PCR notice stating that he was not raising an ineffective assistance
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of counsel claim {Id. at 105). Noting that a DNA testing petition may be made at any time,
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the court appointed PCR counsel to represent Petitioner, permitted the filing of a PCR
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petition for DNA testing, and deferred decision to after briefing regarding whether or not
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Petitioner met the legal requirements for post-conviction DNA testing {Id. at 108-109).
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Over three months later, Petitioner’s counsel filed a notice of completion, avowing that she
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was unable to find support for a petition for post-conviction DNA testing and requested
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that Petitioner be permitted to file a pro per petition {Id. at 111-114).
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Petitioner filed a pro per petition in January 11, 2017, regarding DNA testing and
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arguing that his trial counsel had been ineffective (Doc. 8-2 at 4-24). Petitioner alleged
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that after defense counsel had requested and been approved funding for the re-testing of
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DNA evidence, Petitioner had requested that the re-testing be done at the laboratory of his
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choice, but counsel told him he could not choose facilities (Id.). Petitioner further alleged
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that after he refused to give a DNA sample to Chromosomal Laboratories, which was doing
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the re-testing, his counsel told him that refusing to give the sample would forfeit his
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opportunity to have the DNA evidence re-tested .(Id.). Also, Petitioner criticized that the
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DNA re-testing was not completed and claimed that his trial counsel therefore had failed
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to adequately investigate the prosecution’s forensic evidence (Id.). Petitioner claimed that
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all of this amounted to a conflict of interest between him and his counsel, rendering counsel
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ineffective (Id.). Among other attachments, Petitioner included a letter from his trial
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counsel confirming that Petitioner had refused to produce a sample for the laboratory
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representative that had come to the jail to sample Petitioner’s DNA (Id. at 24).
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The state responded that the pro per petition did not request DNA testing of any
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specific items of evidence or otherwise satisfy the requirements of the applicable rule. The
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state also argued that to the extent that Petitioner requested testing of the DNA evidence
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taken from the wheelchair as his trial counsel had requested, such request would not satisfy
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Rule 32.17 because the samples were previously subject to DNA testing, Petitioner had not
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established that he was seeking different tests, and that even favorable results would not
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have created a possibility that Petitioner would not have been convicted. The state further
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noted that Petitioner’s ineffective assistance of counsel claims did not warrant relief
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because his petition was untimely and did not otherwise satisfy the requirements of Rule
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32. See Doc. 8-2 at 26-36.
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In his reply, Petitioner maintained that his request was compliant with Rule 32.17
(Doc. 8-2 at 32-33).
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On June 30, 2017,3 the PCR court issued its ruling denying the petition (Id. at 41-
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42). The court found that Petitioner had failed to meet Rule 32.17’s standards by not
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demonstrating a reasonable probability that he would not have been convicted if the DNA
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evidence was re-tested, and noted that the factual basis for Petitioner’s conviction included
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3 “A court order is entered when the clerk files it.” Ariz. R. Crim. P. 1.3.
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other physical, testimonial, and circumstantial evidence (Id.). The court also noted that
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Petitioner had admitted to the offenses at sentencing (Id.). Further, the court rejected
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Petitioner additional claims for Rule 32 relief, finding the petition did not make any reliable
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allegation that counsel’s performance fell below an objective standard and that Petitioner
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had “failed to demonstrate that the result would have changed” (Id.). Accordingly, the
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court found that Petitioner “failed to establish a material issue of fact or law for which he
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would be entitled ... to relief’ (Id.).
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On August 8, 2017, Petitioner signed a pro per motion for extension of time to file
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a petition for review to the Arizona Court of Appeals from the PCR court’s denial of
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Petitioner’s pro se petition for DNA testing (Id. at 44-45). Petitioner’s motion averred that
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the unit where he was housed did not have a proper legal library, the law library was closed
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the first week in August, and he did not have help to prepare his legal documents properly
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(Id. at 44). By the time that Petitioner signed the motion, Petitioner was represented by
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counsel in connection with his second PCR petition, see Section 1(B)(2) infra. Thus, on
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August 17, 2017, the court issued a notice of ex parte communication, forwarded
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Petitioner’s motion for extension of time to counsel, and took no action on the motion for
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extension of time (Id. at 47).
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2.
Second PCR proceeding
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On July 11,2017,4 about two weeks after the superior court denied Petitioner’s PCR
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petition for DNA testing, Petitioner filed a second PCR notice (Doc. 8-2 at 49-51). On
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August 4, 2017, the court appointed counsel for the second PCR proceedings (Id. at 53-
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54). On October 29, 2017, counsel filed a notice of completion and avowed that he found
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no colorable legal issues that were not frivolous (Id. at 56-57). The court then permitted
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Petitioner to file a pro per PCR petition (Id. at 59-60).
25
In his second PCR petition, Petitioner raised four grounds for relief. First, he
26
claimed ineffective assistance of trial counsel at the plea-bargain stage, arguing that
27
28
4 Though Petitioner appears to have signed and notarized the notice on April 18,
2017, it was not received ana filed by the court until July 11, 2017 (Doc. 8-2 at 49, 51).
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Case 2:20-cv-00847-DWL Document 18 Filed 12/31/20 Page 6 of 18
1
counsel was ineffective by failing to challenge or “investigate” the state’s evidence and by
2
failing to disclose the results of the DNA re-testing before his plea agreement “so that he
3
could make a clear choice to sign a plea or prevail at trial” because they “may have been
4
favorable.” Second, he claimed that his counsel was ineffective for “failing to suppress the
5
identification the witness made,” believing that one of the state’s witnesses provided an
6
unreliable identification by not being positive that Petitioner was the offender, and that the
7
officers unreasonably relied on this unreliable identification of Petitioner. Third, Petitioner
8
claimed that the trial court erred by failing to consider his pre-trial motion to change
9
counsel, arguing that such failure deprived him of his right to counsel and forced him to
10
involuntarily plead guilty. Fourth, Petitioner claimed that the trial court violated his rights
11
by “failing to comply with Rule 17.4 of the Arizona Rules of Criminal Procedure and Rule
12
11 of the Federal Rules of Procedure regarding guilty pleas.” Specifically, he argued that
13
the trial court improperly interfered with plea negotiations by informing him of the possible
14
sentencing ranges he would be subject to if convicted after a trial and by reviewing the
15
state’s evidence against him, thereby coercing him into entering the plea. See Doc. 8-2 at
16
62-87, 89-92; see also Doc. 8-2 at 94-95.
17
The state responded that Petitioner’s claims could not be presented in an untimely
18
Rule 32 proceeding. The state further argued that any claim that Petitioner was unaware
19
of his appeal rights was unavailing because the trial court advised Petitioner of his rights
20
at sentencing and Petitioner signed an acknowledgement of those rights. The state also
21
argued that Petitioner’s claims were otherwise precluded because they could have been
22
raised in his first PCR proceeding and that the PCR court had expressly denied Petitioner’s
23
first ineffective assistance of counsel claim. See Doc. 8-2 at 97-105.
24
Petitioner filed a reply reiterating his claims and insisting that his first PCR
25
proceeding was not a PCR proceeding, but a DNA-test request proceeding, and that he
26
therefore could not have raised his claims in his first PCR proceeding {Id. at 107-118).
27
On October 5,2018, the PCR court issued an order denying the second PCR petition
28
{Id. at 120-121). The court found that the second PCR petition was filed four years late
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1
without valid excuse for the delay {Id. at 120). The court also found that Petitioner failed
2
to present new information that would allow for Petitioner’s repeated ineffective assistance
3
of counsel claim to be reviewed {Id. at 121). Additionally, the court noted that Petitioner
4
“relie[d] heavily upon events and matters known to him at the time of the plea proceedings”
5
and that “[b]y pleading guilty, he effectively waived his claims as to those issues” {Id ).
6
The court also found that no evidence supported Petitioner’s claims that he was coerced
7
into the plea agreement and that Petitioner had avowed on the record that he was pleading
8
guilty knowingly, intelligently, and voluntarily {Id.). The court concluded: “Suffice it to
9
say that [the second PCR petition] is untimely and even if the untimeliness were ignored
10
or not applicable, [Petitioner] failed to establish the threshold required for his [p]etition to
11
proceed.” {Id.)
12
The court granted Petitioner’s request for an extension until January 18, 2019, to
13
petition for review to the Arizona Court of Appeals {Id. at 123). Despite the extension,
14
Petitioner failed to timely file the petition for review. On March 25, 2019, Petitioner filed
15
his petition for review with the Arizona Court of Appeals along with a “Motion to Leave
16
of Superior Court to File a Delayed Petition for Review” (Doc. 8-2 at 125-145, 147-148).5
17
On March 27, 2019, the Arizona Court of Appeals dismissed the petition for review as
18
untimely and instructed that the trial court may nevertheless permit Petitioner to file an
19
untimely petition for review if presented with proper evidence that Petitioner was not
20
responsible for his late filing {Id. at 150-151). The court of appeals also forwarded
21
Petitioner’s motion for leave to the trial court (Id. at 153-154).
22
Petitioner and Respondents agree that on July 15, 2019, Petitioner filed a petition
23
for review to the Arizona Supreme Court, which the supreme court denied as untimely
24
(Doc. 1 at 35; Doc. 8 at 10).6
25
26
27
28
5 In his Petition, Petitioner erroneously refers to the petition for review as his third
PCR petition (Doc. 1 at 6).
6 Respondents reference Exhibits MM and NN, but these exhibits were not filed
with the Court. Because all parties are in agreement regarding the date of the petition for
review and that the petition for review was denied as untimely, the Court may decide the
issues raised in the Limited Answer without the missing exhibits.
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1
II.
THESE HABEAS PROCEEDINGS
2
On April 22, 2020, Petitioner filed these proceedings, naming David Shinn as
3
Respondent and the Arizona Attorney General as an Additional Respondent (Doc. 1). In
4
Petition Ground One, Petitioner argues that his trial counsel was ineffective at the pre-trial
5
and plea bargaining stages for “failing to disclose material evidence” before Petitioner
6
entered his plea agreement, thereby prohibiting Petitioner from making “a sound decision”
7
regarding whether to plead guilty (Id. at 8-14). Specifically, Petitioner claims that his
8
counsel failed to disclose the results of re-testing of DNA evidence that was requested and
9
approved before Petitioner entered into the plea agreement, arguing that the results “may
10
have been favorable” to Petitioner (Id. at 13). Petitioner also complains that counsel
11
otherwise failed to challenge the state’s DNA evidence (Id. at 14). In Petition Ground
12
Two, Petitioner asserts that his trial counsel was ineffective for failing to suppress the
13
witness’s identification of Petitioner as unreliable (Id. at 15-17). In Petition Ground Three,
14
Petitioner argues that the trial court violated his right to counsel by failing to consider his
15
motion to substitute counsel, claiming that the failure to do so led to his unknowing and
16
involuntary guilty plea (Id. at 18-24). In Petition Ground Four, Petitioner claims that the
17
trial court violated his Fifth and Fourteenth Amendment rights by acting coercively by
18
“cautionfing] him about potential sentences should he be convicted after trial, compared to
19
the sentenced [sic] he faced if he pleaded guilty, comment[ing] on the weight and nature
20
of the evidence against Petitioner, which implied guilt, and discussing] hypothetical
21
agreements the court would or would not accept,” thereby making him unknowingly and
22
involuntarily accept the plea agreement (Id. at 25-28). In Petition Ground Five, Petitioner
23
claims that the superior court erroneously denied his second PCR petition and the claims
24
contained therein on October 5, 2018 (Id. at 29-31).7 In Petition Ground Six, Petitioner
25
claims that the Arizona Court of Appeals violated Petitioner’s Fourteenth Amendment
26
rights under the United States Constitution as well as state constitutional rights when it
27
28
7 Petitioner mistakenly asserts that the denial was on October 3, 2018, but the order
was filed on October 5, 2018 (Doc. 1 at 30). “A court order is entered when the clerk files
it.” Ariz. R. Crim. P. 1.3.
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Case 2:20-CV-00847-DWL Document 18 Filed 12/31/20 Page 9 of 18
1
dismissed Petitioner’s petition for review as untimely on March 27, 2019 (Id. at 32-35).
2
Respondents argue that the Petition should be dismissed with prejudice because
3
these proceedings were untimely filed and that all the claims raised in the Petition are
4
procedurally defaulted without excuse (Doc. 8). Respondents assert that the Petition “is
5
untimely by 2,058 days because the one-year limitation period to file a habeas petition
6
elapsed on July 30, 2014” and that “neither statutory nor equitable tolling renders [the
7
Petition] timely” (Id. at 12). Respondents argue that Petitioner “failed to exhaust his clams
8
by not properly presenting them to both the trial court and the Arizona Court of Appeals,
9
and does not present an excuse for his procedural defaults” (Id. at 15).
10
Respondents argue that neither Grounds Five and Six presents a cognizable claim because
11
these claims are based on the interpretation of state court rules and Petitioner does not
12
otherwise develop any allegation of a federal constitutional violation (Id. at 22).
Further,
13
In his reply (Doc 17), Petitioner argues that additional exhibits should have been
14
provided by Respondents regarding the constitutional claims raised by Petitioner.
15
Petitioner further notes that Respondents did not attach referenced Exhibits MM and NN
16
(Id. at 2-3). See footnote 6, supra. Petitioner further argues the merits of his claims, but
17
he does not address the defenses raised by Respondents in their Limited Answer (Id. at 4-
18
29).
19
III.
TIMELINESS OF GROUNDS ONE, TWO, THREE, AND FOUR
Start Date of AEDPA’s One Year Limitations Period
20
A.
21
A threshold issue for the Court is whether a habeas petition is time-barred by the
22
statute of limitations.
23
procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920,
24
921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996
25
(“AEDPA”) governs Petitioner’s habeas petition because he filed it after April 24, 1996,
26
the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing
27
Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).
28
The time-bar issue must be resolved before considering other
Under AEDPA, there are four possible starting dates for the beginning of its one-
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1
2
3
4
5
6
7
8
9
10
year statute of limitations period:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B)
the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral
review; or
11
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
12
28 U.S.C. § 2244(d)(1). The latest of the applicable possible starting dates is the operative
13
start date. Id.
14
Here, the Petition Grounds One, Two, Three, and Four arise from a final judgment
15
and sentence, and the record does not present circumstances for a later start date based on
16
subsections (B), (C), or (D). Thus, AEDPA’s one-year statute of limitations start date is
17
determined by 28 U.S.C. § 2244(d)(1)(A). AEDPA’s one-year statute of limitations period
18
runs from when the judgment and sentence became “final by the conclusion of direct
19
review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
20
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may
21
seek review only by collaterally attacking the conviction(s) by way of post-conviction
22
proceedings under Arizona Rule of Criminal Procedure 32 (now Rule 33). See Ariz. R.
23
Crim. P. 17.2(e); A.R.S. § 13^1033(B). At the time of Petitioner’s sentencing, Rule
24
32.4(a)(2)(C) required an of-right notice of post-conviction relief to be filed within 90 days
25
after entry of judgment and sentence. The conviction becomes “final” for purposes of
26
Section 2244(d)(1)(A) when the Rule 32 of right proceeding concludes or the time for filing
27
such expires. Summers v. Schriro, 481 F.3d 710, 711, 716-717 (9th Cir. 2007); see also
28
A.R.S. § 13-4033(B). When an Arizona petitioner’s PCR proceeding is of-right, AEDPA’s
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Case 2:20-cv-00847-DWL Document 18 Filed 12/31/20 Page 11 of 18
1
statute of limitations does not begin to run until the conclusion of review or the expiration
2
of the time for seeking such review. Summers, 481 F.3d at 711, 716-17.
3
Petitioner’s sentencing was on April 29, 2013. Petitioner had ninety (90) days in
4
which to file a PCR notice. Ninety days ran on Sunday, July 28, 2013, so the last day for
5
filing a PCR notice was Monday, July 29,2013. Petitioner did not file a PCR notice in this
6
timeframe. Thus, Petitioner’s conviction and sentence became final on July 29, 2013,
7
triggering the start of AEDPA’s one-year statute of limitations the next day.
8
AEDPA’s one-year statute of limitations began running on Tuesday, July 30, 2013, and
9
expired on Tuesday, July 29, 2014. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th
10
Cir. 2001) (“Excluding the day on which [the prisoner’s] petition was denied by the
11
Supreme Court, as required by Rule 6(a)’s ‘anniversary method,’ [AEDPA’s] one-year
12
grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 ...
13
.”). Petitioner was required to file a federal habeas petition regarding Grounds One, Two,
14
Three, and Four on or before July 29, 2014. Petitioner did not file the Petition until April
15
22, 2020. Thus, Petition Grounds One, Two, Three, and Four were untimely filed by over
16
five years. Therefore, the Court will address whether statutory tolling, equitable tolling, or
17
the actual innocence gateway applies to render Petition Grounds One, Two, Three, and
18
Four, and these proceedings thereon, timely filed.
Thus,
Statutory Tolling
19
B.
20
AEDPA expressly provides for tolling of the limitations period when a “properly
21
filed application for [s]tate post-conviction or other collateral relief with respect to the
22
pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A collateral review
23
petition is “properly filed” when its delivery and acceptance are in compliance with state
24
rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). This includes compliance
25
with filing deadlines. A state post-conviction relief petition not filed within the state’s
26
required time limit is not “properly filed,” and the petitioner is not entitled to statutory
27
tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When
28
a post-conviction petition is untimely under state law, ‘that [is] the end of the matter’ for
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Case 2:20-cv-00847-DWL Document 18 Filed 12/31/20 Page 12 of 18
1
purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate’s
2
untimely state post-conviction petition was not “properly filed” under AEDPA’s tolling
3
provision, and reiterating its holding in Pace, 544 U.S. at 414). Once the statute of
4
limitations has run, subsequent collateral review petitions do not “restart” AEDPA’s one
5
year limitations period clock. Jiminezv. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson
6
v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
7
Here, the statute of limitations expired on Petition Grounds One, Two, Three, and
8
Four before the filing of any of Petitioner’s PCR proceedings. The statute of limitations
9
expired on July 29, 2014, and Petitioner’s PCR proceedings were filed in 2016 and 2017.
10
Thus, statutory tolling does not apply to Petition Grounds One, Two, Three, and Four.
11
C.
Equitable Tolling
12
The U.S. Supreme Court has held “that § 2244(d) is subject to equitable tolling in
13
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA’s limitations
14
period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar.
15
Id. at 645-46.
16
Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our
17
precedent permits equitable tolling of the one-year statute of limitations on habeas
18
petitions, but the petitioner bears the burden of showing that equitable tolling is
19
appropriate.”).
It is Petitioner’s burden to establish that equitable tolling is warranted.
20
The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA’s
21
limitations period “only when an extraordinary circumstance prevented a petitioner acting
22
with reasonable diligence from making a timely filing.” Smith v. Davis, 953 F.3d 582, 600
23
(9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner must
24
show “(1) that he has been pursuing his rights diligently and (2) that some extraordinary
25
circumstances stood in his way” to prevent him from timely filing a federal habeas petition.
26
Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the first prong, a
27
petitioner “must show that he has been reasonably diligent in pursuing his rights not only
28
while an impediment to filing caused by an extraordinary circumstance existed, but before
- 12-
Case 2:20-CV-00847-DWL Document 18 Filed 12/31/20 Page 13 of 18
1
and after as well, up to the time of filing his claim in federal court.” Smith, 953 F.3d at
2
598-99 (expressly rejecting the “stop-clock” approach to equitable tolling). The second
3
prong is met “only when an extraordinary circumstance prevented a petitioner acting with
4
reasonable diligence from making a timely filing.” Id. at 600.
5
“The diligence required for equitable tolling purposes is reasonable diligence, not
6
maximum feasible diligence.”
Id. at 653 (internal citations and quotations omitted).
7
Whether to apply the doctrine of equitable tolling ‘“is highly fact-dependent,’ and [the
8
petitioner] ‘bears the burden of showing that equitable tolling is appropriate.”’ Espinoza-
9
Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted);
10
see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable
11
tolling is “unavailable in most cases,” and “the threshold necessary to trigger equitable
12
tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and
13
internal emphasis omitted).
14
There must be a causal link between the extraordinary circumstance and the inability
15
to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[EJquitable
16
tolling is available only when extraordinary circumstances beyond a prisoner’s control
17
make it impossible to file a petition on time and the extraordinary circumstances were the
18
cause of the prisoner’s untimeliness.”). A literal impossibility to file, however, is not
19
required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable
20
tolling is appropriate even where “it would have technically been possible for a prisoner to
21
file a petition,” so long as the prisoner “would have likely been unable to do so.”).
22
A petitioner’s pro se status, indigence, limited legal resources, ignorance of the law,
23
or lack of representation during the applicable filing period do not constitute extraordinary
24
circumstances justifying equitable tolling. See, e.g., Rasberry, 448 F.3d at 1154 (“[A] pro
25
se petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance
26
warranting equitable tolling.”); see also Ballesteros v. Schriro, CIV 06-675-PHX-EHC
27
(MEA), 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner’s pro se status,
28
ignorance of the law, lack of representation during the applicable filing period, and
- 13-
Case 2:20-CV-00847-DWL Document 18 Filed 12/31/20 Page 14 of 18
1
temporary incapacity do not constitute extraordinary circumstances).
2
“proceeding pro se is not a ‘rare and exceptional’ circumstance because it is typical of those
3
bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
A prisoner’s
4
After carefully reviewing the entire record before the Court, undersigned concludes
5
that Petitioner has not met his burden of showing that he has been pursuing his rights
6
diligently and that some extraordinary circumstances prevented Petitioner from filing a
7
timely petition for habeas corpus.
8
Petitioner regarding Petition Grounds One, Two, Three, and Four.
Accordingly, equitable tolling is unavailable to
9
D.
10
In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held
11
that the “actual innocence gateway” to federal habeas review that applies to procedural
12
bars in Schlup v. Delo, 513 U.S. 298, 327 (1995), and House v. Bell, 547 U.S. 518 (2006),
13
extends to petitions that are time-barred under AEDPA. See Schlup, 513 U.S. at 329
14
(petitioner must make a credible showing of “actual innocence” by “persuading] the
15
district court that, in light of the new evidence, no juror, acting reasonably, would have
16
voted to find him guilty beyond a reasonable doubt.”).
Actual Innocence
17
To pass through the actual innocence/Schlup gateway, a petitioner must establish
18
his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v.
19
U.S, 523 U.S. 614,623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003).
20
A petitioner “must show that it is more likely than not that no reasonable juror would have
21
convicted him in the light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399
22
(2013) (quoting Schlup, 513 U.S. at 327). “To be credible, such a claim requires petitioner
23
to support his allegations of constitutional error with new reliable evidence-whether it be
24
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
25
evidence.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir.
26
2011); McQuiggin, 569 U.S. at 399 (explaining the significance of an “[ujnexplained delay
27
in presenting new evidence”). Because of “the rarity of such evidence, in virtually every
28
case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne,
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1
223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559
2
(1998)).
3
While Petitioner complains about his counsel and the procedures underlying his
4
convictions and sentences, he does not assert his actual innocence. In fact, Petitioner
5
admitted his guilt at the change of plea hearing and at sentencing.
6
Petitioner’s grounds could be construed as an actual innocence claim, he has not presented
7
new reliable evidence as required for the actual innocencdSchlup gateway.
8
Petitioner has not shown that it is more likely than not that no reasonable juror would have
9
convicted him in the light of any new evidence. Accordingly, the actual innocenc dSchlup
10
gateway provides no relief to Petitioner for the untimely filing of Petition Grounds One,
11
Two, Three, and Four.
12
E.
13
AEDPA
Even if any of
Further,
Petition Grounds One, Two, Three, and Four Are Untimely Under
14
Under applicable law and the above analysis, Petition Grounds One, Two, Three,
15
and Four were untimely filed. Petitioner is not entitled to statutory tolling. Equitable
16
tolling does not render the Petition’s filing timely as to Grounds One, Two, Three, and
17
Four, nor does the actual innocence gateway. Thus, these untimely proceedings as to
18
Petition Grounds One, Two, Three, and Four should be dismissed with prejudice.
19
IV.
20
PROCEEDINGS
GROUNDS FIVE AND SIX ARE NOT COGNIZABLE IN HABEAS
21
A federal court may only consider a petition for writ of habeas corpus if the
22
petitioner alleges that “he is in custody in violation of the Constitution or laws or treaties
23
of the United States.” 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 68 (1991);
24
see also Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“A habeas petition must
25
allege the petitioner's detention violates the constitution, a federal statute or a treaty.”); see
26
also Gilmore v. Taylor, 508 U.S. 333, 349 (1993) (stating that “mere error of state law, one
27
that does not rise to the level of a constitutional violation, may not be corrected on federal
28
habeas.”). On habeas corpus review, federal courts lack jurisdiction to review state court
- 15 -
i
Case 2:20-cv-00847-DWL Document 18 Filed 12/31/20 Page 16 of 18
1
applications of state procedural rules. Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998)
2
(stating that “[f]ederal habeas courts lack jurisdiction ... to review state court applications
3
of state procedural rules).” Moreover, a habeas petitioner cannot “transform a state law
4
issue into a federal one by merely asserting a violation of due process.” Poland, 169 F.3d
5
at 584 (quoting Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)); see also Jones v.
6
Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (stating that a petitioner's conclusory suggestion
7
that a federal constitutional right had been violated fell “far short of stating a valid claim
8
of constitutional violation.”)
9
In Petition Ground Five, Petitioner claims that the superior court erroneously denied
10
his second PCR petition and the claims contained therein on October 5, 2018. In Petition
11
Ground Six, Petitioner claims that the Arizona Court of Appeals violated Petitioner’s
12
Fourteenth Amendment rights under the United States Constitution as well as state
13
constitutional rights when it dismissed as untimely Petitioner’s petition for review in his
14
second PCR proceedings on March 27, 2019. The Court agrees with Respondents that
15
Petition Ground Five is not cognizable because it is based solely “on the interpretation of
16
a state court rule, and Petitioner does not otherwise develop any allegation of a federal
17
constitution violation” (Doc. 8 at 22). See Doc. 1 at 30 (“[T]he superior court improperly
18
interpreted Arizona law concerning [Rule 32.12] and the ruling may not have been
19
sufficient to ensure that proper consideration was given to a substantial claim.”). The Court
20
further agrees with Respondents that Petitioner “merely cites to the Fourteenth Amendment
21
in Ground Six, but fails to develop a claim of a federal constitutional violation” (Doc. 8 at
22
22). Like Ground Five, Ground Six “relies on the interpretation and application of state
23
court rules” (Id.), rendering the ground non-cognizable in habeas proceedings. See Doc. 1
24
at 32 (“Rule 32.9(c)(3) states that motions for extensions of time to file petitions or cross
25
petitions for review must be filed with the trial court, which must decide the motions
26
promptly” and “the Maricopa County Superior Court has never responded or decided on
27
the above-pending motion.”)
28
Further, the claimed procedural errors in Grounds Five and Six arising during post-
- 16-
Case 2:20-cv-00847-DWL Document 18 Filed 12/31/20 Page 17 of 18
1
conviction relief proceedings are not cognizable in habeas corpus proceedings under 28
2
U.S.C. § 2254 because they do not challenge a petitioner's detention. See Franzen v.
3
Brinkman, 877 F.2d 26 (9th Cir. 1989) (per curiam); see also Ortiz v. Stewart, 149 F .3d
4
923, 939 (9th Cir. 1998) (finding that the post-convictions court's failure to appoint
5
petitioner counsel in his second post-conviction proceedings did not constitute a basis for
6
a federal habeas claim); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (stating
7
that errors in the post-conviction proceeding were not cognizable in federal habeas corpus
8
proceedings). Whether the state courts complied with Arizona statutes and rules governing
9
state post-conviction proceedings is a matter of state law that is not “addressable through
10
habeas corpus proceedings.” Franzen, 877 F.2d at 26.
11
Therefore, Petitioner's claims in Grounds Five and Six, which challenge the
12
application of Arizona law related to post-conviction proceedings, are not cognizable on
13
federal habeas review. Additionally, Petitioner cannot transform state law claims into
14
federal claims by citing the Due Process Clause of the Fourteenth Amendment. See
15
Poland, 169 F.3d at 584. Therefore, Petitioner is not entitled to relief on Grounds Five and
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Six.
17
V.
CONCLUSION AND CERTIFICATE OF APPEALABILITY
18
Based on the above analysis, Petition Grounds One, Two, Three, and Four were
19
untimely filed and neither statutory tolling, equitable tolling, nor the actual innocence
20
gateway apply to render the filing of Petition Grounds One, Two, Three, and Four timely.
21
In addition, Grounds Five and Six of the Petition are not cognizable in federal habeas
22
proceedings.
23
Respondents’ arguments regarding exhaustion, procedural default, and excuse for
24
procedural default. Undersigned recommends that the Petition (Doc. 1) be denied and
25
dismissed with prejudice because all of the Petition grounds are, at a minimum, untimely
26
or not cognizable in habeas proceedings.
Because it was unnecessary to do so, undersigned did not address
27
Under the reasoning set forth herein, reasonable jurists would not find it debatable
28
whether the District Judge was correct in its procedural rulings. Further, for any portions
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Case 2:20-cv-00847-DWL Document 18 Filed 12/31/20 Page 18 of 18
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of the Petition not procedurally barred, Petitioner has not made “a substantial showing of
2
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and jurists of reason would
3
not find the Court’s assessment of Petitioner’s claims “debatable or wrong”. Slack v.
4
McDaniel, 529 U.S. 473, 484 (2000). Accordingly, to the extent the District Judge adopts
5
this Report and Recommendation regarding the Petition, a certificate of appealability
6
should be denied.
7
Accordingly,
8
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas
9
10
11
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be
denied.
12
This recommendation is not an order that is immediately appealable to the Ninth
13
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal
14
Rules of Appellate Procedure should not be filed until entry of the District Court’s
15
judgment. The parties shall have fourteen days from the date of service of a copy of this
16
recommendation within which to file specific written objections with the Court. See 28
17
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6,72. The parties shall have fourteen days within which
18
to file responses to any objections. Failure to file timely objections to the Magistrate
19
Judge’s Report and Recommendation may result in the acceptance of the Report and
20
Recommendation by the District Court without further review. See United States v. Reyna-
21
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual
22
determination of the Magistrate Judge may be considered a waiver of a party’s right to
23
appellate review of the findings of fact in an order or judgment entered pursuant to the
24
Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72.
25
Dated this 31st day of December, 2020.
26
'jjistipL
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//
ftMj
Honorable Deborah’M Fine
United States Magistrate Judge
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JP/t/SQ/* F
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.a
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 17 2021
MOLLY C. DWYER, CLERK
U S. COURT OF APPEALS
ISAAC JUDE RODRIGUEZ,
Petitioner-Appellant,
v.
DAVID SHINN, Director; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
No.
21-16049
D.C. No. 2:20-cv-00847-DWL
District of Arizona,
Phoenix
ORDER
Respondents-Appellees.
Before:
NGUYEN and FORREST, Circuit Judges.
Appellant’s motion for reconsideration (Docket Entry No. 9) is denied. See
9th Cir. R. 27-10.
No further filings will be entertained in this closed case.
t
APFEdpnt T>
FILED
UNITED STATES COURT OF APPEALS
JUN 22 2021
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ISAAC JUDE RODRIGUEZ,
Petitioner-Appellant,
v.
DAVID SHINN, Director; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
No.
21-16049
D.C. No. 2:20-cv-00847-DWL.
District of Arizona,
Phoenix
ORDER
Respondents-Appellees.
The record suggests that this court may lack jurisdiction over this request for
a certificate of appealability because the notice of appeal was not filed or deposited
I
for mailing in the prison’s internal mail system within 30 days after entry of the
district court’s judgment on May 10, 2021. See 28 U.S.C. § 2107(a); Fed. R. App.
P. 4(a)(1)(A), (c).
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Within 21 days after this order, appellant must move for voluntaiy dismissal
of this request for a certificate of appealability or show cause why it should not be
dismissed for lack of jurisdiction. If appellant elects to show cause, a response
may be filed within 10 days after service of appellant’s memorandum.
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If appellant does not comply with this order, the Clerk will dismiss this
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request for a certificate of appealability pursuant to Ninth Circuit Rule 42-1.
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FOR THE COURT:
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MOLLY C. DWYER
CLERK OF COURT
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By: Karen M. Burton
Deputy Clerk
Ninth Circuit Rule 27-7
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. 2
21-16049
Additional material
from this filing is
available in the
Clerk's Office.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.