Bennetti #085442 v. Thornell et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Dino Joseph Bennetti,
Plaintiff
-vs-
Ryan Thornell, et al.,
Defendants.
CV-25-0169-PHX-DWL (JFM)
Report & Recommendation
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the
undersigned makes the following proposed findings of fact, report, and recommendation
pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of
Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
The following summary of the facts is drawn from the decision of the Arizona Court
of Appeals in disposing of Petitioner’s direct appeal.
At the time of his plea, the defendant stated that on the day of the
offenses, he was without money or food. He went to his apartment
for identification to cash a check, which he could not find, and left
after stealing his roommate’s gun. He subsequently met the victim,
who agreed to give him a ride to Buckeye. [Bennetti] claimed that
after they began traveling, the victim attempted to sexually assault
him. [Bennetti] explained that after he repeatedly and unsuccessfully
requested the victim to stop the car, he pulled the gun to let the victim
know that he wanted to get out. [Bennetti] stated that he had not
intended to hurt the victim but that he had had a vision of a relative
who allegedly had sexually assaulted him in the past when he
changed his mind and ordered the victim to continue driving.
[Bennetti] further stated that when they reached the desert, he
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instructed the victim to get out of the car, shot him three times in the
back of his head, picked up the victim’s wallet and took the victim’s
money and vehicle to Tucson.
The State suggested that [Bennetti’s] intent to steal the
victim’s money and car was formed when [Bennetti] came in contact
with the victim. Indeed, [Bennetti] admitted during a psychological
examination that he had lied about the victim’s sexual advances,
stating that he had been hungry. [Bennetti] also responded
affirmatively when the psychologist questioned whether [Bennetti]
had killed the victim to obtain money to buy food.
(Exh. H, Mem. Dec. 7/24/92 at 3-4.) (Exhibits to the Answer (Doc. 10) are referenced
herein as “Exh. ___.”) Petitioner was 17 years old at the time he committed his offenses.
(Order (Ninth PCR) 5/25/23 at 1.)1 He was prosecuted as an adult. (Exh. H, Mem. Dec.
7/24/92 at 2, n. 1.)
B. TRIAL
Petitioner2 was indicted on September 5, 1990 in Maricopa County Superior Court
on charges of first-degree murder, kidnapping, armed robbery, and theft. (Exh. C,
Indictment.) He was prosecuted as an adult. (Exh. H, Mem. Dec. 7/24/92 at 2, n. 1.) He
eventually entered into a written plea agreement (Exh. W), and pled no contest to the
armed robbery and guilty to the other three charges. (Exh. Y, Oder 4/18/91.) On May
17, 1991 he was sentenced to life with the possibility of parole after 25 years on the murder
charge, and consecutive sentences of 10.5 years for kidnapping and 10.5 years on the
armed robbery, and 6 years on the theft to run concurrent with the armed robbery. (Exh.
H, Mem. Dec. 7/24/92 at 3; Exh. EE, Sentence.)
The Sentencing Judgment identified the sentence on the murder charge as “Life
1 Petitioner challenges his purported sentence to life without parole for a juvenile offense.
Accordingly, particular attention is given in this summary to the sentence and proceedings
related to such claims.
2 Petitioner was prosecuted under the name Paul Charles Dinatale, but in 1995 began
using the alias Anthony Tucci in his First PCR proceeding (Exhs. N, OO), added the alias
Brian James Daniels (identified as his legal name) in 2002 in his Second PCR proceeding
(Exhs. F, QQ), in 2006 eliminated Tucci and added Dino Joseph Bennetti in his Fourth
PCR proceeding (Exhs. G, VV), eliminated Daniels in his Fifth PCR (Exh. XX), changed
the spelling of his alias to “Denatale” or alternatively “DeNatale” in his Eighth PCR
Proceeding (Exhs. JJJ, LLL).
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Imprisonment (pursuant to Ariz. Rev. Stat. § 13-703).”3 (EE, Sentence at 2.) Similarly,
the appellate decision described it as “life imprisonment.” However, the statute (§13-703)
provided only two possible sentences for first degree murder, death or “life, without
possibility of release on any basis until the completion of the service of twenty-five
calendar years.” 1988 Ariz. Legis. Serv. 155 (West) (amending §13-703). At the
sentencing hearing, the trial judge pronounced the sentence as “life imprisonment for first
degree murder.” (Ex. BB, R.T. 11/17/91 at 33.) However, he had previously recognized
that the plea agreement “stipulated to a sentence of life imprisonment, which does, then,
serve 25 years in prison before you are eligible for a parole hearing.” (Id. at 31.) In
dismissing Petitioner’s PCR petition based on the imposition of a life sentence, the PCR
court recounted: “Defendant was sentenced to life imprisonment for the first-degree
murder charge with the possibility of parole after 25 years.” (Exh. CCCC, Order 5/25/23
at 1.)
C. DIRECT APPEAL
Petitioner filed a direct appeal, asserting there were as an insufficient factual basis
for the armed robbery. In a Memorandum Decision issued July 24, 1992 (Exh. J) the
Arizona Court of Appeals found no merit to the asserted claims, reviewed the record for
“fundamental error” and found none, and affirmed Petitioner’s convictions and sentences.
Petitioner did not file a motion for reconsideration or petition for review by the
Arizona Supreme Court, and on July 23, 1992, the Arizona Court of Appeals issued its
Mandate (Exh. FF).
D. POST-CONVICTION RELIEF
1. First PCR – 2/28/95 to 9/26/96
On March 7, 1995, Petitioner commenced his first post-conviction relief (PCR)
proceeding by filing a PCR Notice (Exh. GG), dated February 28, 1995. The PCR court
3 In 2008, § 13-703 was renumbered as § 13-751. 2008 Ariz. Legis. Serv. Ch. 301 (H.B.
2207).
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summarily dismissed his Petition as without merit. (Exh. NN, Order 6/1/96.) Petitioner
sought reconsideration (Exh. OO) which was denied in an Order dated August 22, 1996
and filed August 27, 1996. (Exh. PP, Order 8/22/96). Thereafter, Petitioner had 30 days
to file a petition for review. Ariz. R. Crim. Proced. 32.9(c) (1996). Moreover, at the time,
Arizona applied Arizona Rule of Criminal Procedure 1.3 to extend “the time to file an
appeal by five days when the order appealed from has been mailed to the interested party
and commences to run on the date the clerk mails the order.” State v. Zuniga, 163 Ariz.
105, 106, 786 P.2d 956, 957 (1990). Here, there is no indication that the Memorandum
Decision was delivered to Petitioner or his counsel by any means other than mailing.
Further, Arizona calculates such time from the date of filing of the order, rather than its
issuance. See Matter of Maricopa County Juvenile Action No. JS-8441, 174 Ariz. 341,
343, 849 P.2d 1371, 1373 (1992) (concluding on the basis of fundamental fairness, that a
minute order be deemed entered on the latest date reflected however denominated). Thus,
Petitioner had 35 days after the filing of the PCR court’s decision on reconsideration, filed
August 27, 1996, or until Tuesday, October 1, 1996, to see further review.
However, Petitioner did not seek further review. (See Answer, Doc. 10 at 12
(asserting none); Petition, Doc. 1 at 4 (identifying no PCR proceedings in state court).
2. Second PCR – 8/21/02 -1/16/04
On September 19, 2002 (some five years after his first PCR proceeding was
concluded), Petitioner commenced his second PCR proceeding by filing a PCR Notice
(Exh. QQ) dated August 21, 2002. The PCR court summarily dismissed the proceeding
as untimely and/or barred under Arizona’s preclusion rules in Ariz. R. Civ. Proc. 32.2(b).
(Exh. RR, Order 10/3/2002.) Petitioner sought review by the Arizona Court of Appeals,
which was denied on December 17, 2003. (Exh. SS, Order 12/17/03.) Thereafter,
Petitioner had 35 days to seek review by the Arizona Supreme Court. Ariz. R. Crim.
Proced. 32.9(g) (2002) (applying Rule 31.19 to further review); Ariz. R. Crim. Proced.
31.19(a) (2002) (30 days); Ariz. R. Crim. Proced. 1.3 (5 days after mailing). Petitioner
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did not do so, and his time expired on Wednesday, January 21, 2004.
3. Third PCR – 8/4/05-4/10/06
On January 6, 2006 (almost two years after his second PCR proceeding was
concluded), Petitioner commenced his third PCR proceeding by filing a PCR Notice (Exh.
TT) dated August 4, 2005. In an Order filed March 9, 2006, the PCR court summarily
dismissed the proceeding as untimely and without merit. (Exh. UU, Order 3/7/2006.)
Thereafter, Petitioner had 35 days to file a petition for review. Ariz. R. Crim. Proced.
32.9(c) (2005); Ariz. R. Crim. Proced. 1.3 (5 days after mailing). However, Petitioner did
not seek further review. His time to do so expired on Thursday, April 13, 2006.
4. Fourth PCR – 12/12/06-2/21/07
On December 28, 2006 (over eight months after his third PCR proceeding was
concluded), Petitioner commenced his fourth PCR proceeding by filing a PCR Notice
(Exh. VV) notarized on December 12, 2006. In an order filed January 22, 2007, the PCR
court summarily dismissed the proceeding as untimely and without merit. (Exh. WW,
Order 1/17/07.) Thereafter, Petitioner had 35 days to file a petition for review. Ariz. R.
Crim. Proced. 32.9(c) (2006) (30 days); Ariz. R. Crim. Proced. 1.3 (5 days after mailing).
However, Petitioner did not seek further review. His time to do so expired on Monday,
February 26, 2007.
5. Fifth PCR – 4/17/09-11/5/09
On April 28, 2009 (over 14 months after his fourth PCR proceeding was
concluded), Petitioner commenced his fifth PCR proceeding by filing a PCR Notice dated
April 17, 2009 (Exh. XX, Doc. 10-2 at 208), along with an interwoven Motion for
Appointment of Counsel dated April 20, 2009 (id.at 215). In an order filed October 6,
2009, the PCR court summarily dismissed the proceeding as untimely. (Exh. YY, Order
9/28/09.) Thereafter, Petitioner had 35 days to file a petition for review. Ariz. R. Crim.
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Proced. 32.9(c) (2009); Ariz. R. Crim. Proced. 1.3 (5 days after mailing). However,
Petitioner did not seek further review. His time to do so expired on Tuesday, November
10, 2009.
6. Sixth PCR – 8/19/10-9/24/10
On August 19, 2010 (over eight months after his fifth PCR proceeding was
concluded), Petitioner commenced his sixth PCR proceeding by filing a PCR Notice. (See
Exh. ZZ Order 9/7/10 at 1.) A copy of this Notice is not provided, and the date it was
signed or mailed is unknown. In an order filed September 9, 2010, the PCR court
summarily dismissed the proceeding as untimely. (Id.) Thereafter, Petitioner had 20 days
(until Wednesday, September 29, 2010) to file a motion for rehearing. Ariz. R. Crim.
Proced. 32.9(a) (2010) (15 days); Ariz. R. Crim. Proced. 1.3 (5 days after mailing). On
November 18, 2010 he filed an untimely motion for rehearing, explicitly referencing the
Order dated September 7, 2010, but (according to Respondents) discussing claims in his
Fifth PCR proceeding and adding new claims. (Exh. AAA, Mot. Rehrg. at 3; Answer,
Doc. 10 at 16.) No resolution of that motion for rehearing appears in the record of this
case, and it is presumed to remain pending.
7. Seventh PCR – 2/22/12-Present
On February 27, 2012 (over 18 months after the expiration of his time to seek
reconsideration in his sixth PCR proceeding) Petitioner commenced his seventh PCR
proceeding by filing a PCR Notice dated February 22, 2012. (See Exh. BBB.) The Notice
asserted claims that he was on psychotropic medications when entering his pleas,
prosecutorial misconduct by having Petitioner sign his plea agreement without the
presence of counsel, and coercion of a mentally ill, 17-year-old defendant.
In an order filed March 9, 2012, the PCR court dismissed the proceeding. (Exh.
CCC, Order 3/6/12.) The court reasoned that Petitioner’s claim based on coercion was
precluded as previously litigated and thus failed to support an untimely PCR proceeding,
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and his psychotropic drugs claim was conjectural and thus not colorable, and Petitioner
had not shown diligence in finding the facts, and the claim was untimely and not subject
to the exception under Rule 32.1(e) for claims based on newly discovered evidence.
Thereafter, Petitioner had 20 days, or until Thursday, March 29, 2012, to move for
rehearing. Ariz. R. Crim. Proced. 32.9(a) (2012) (15 days from ruling); Ariz. R. Crim.
Proced. 1.3 (2012) (5 days for mailing). Some six days after, on April 4, 2012 Petitioner
filed: (a) at 4:04 p.m. a Motion for Rehearing (Exh. S-1) dated March 29, 2012 with an
attached Affidavit (Doc. 33-1); and (b) at 4:05 p.m. the same Motion for Rehearing (Exh.
DDD) dated March 29, 2012 but without an attached affidavit. These two filings are
reflected on the index of record on appeal as filed on April 4, 2012. (Exh. A, Index ROA
at 10, items 204, 205.)
In an Order filed December 20, 2013, the PCR court noted:
The Rule 32 Unit has presented this court with two motions which
this court had not seen previously: (1) motion for extension of time
in which to file a petition for review; and, (2) motion for extension of
time to file a motion for re-hearing dated 3/29/12 and filed 4/4/12
concerning this court’s Order of 3/6/12 denying defendant’s notice of
post-conviction relief filed on 2/27/12.
(Exh. FFF, Order 12/16/13 at 1.) The PCR court granted the motion to extend regarding
the motion for rehearing (id. at 2), but denied the motion regarding a petition for review
as premature (id.). The former ruling directed:
Granting defendant’s motion for extension of time to file a motion for
re-hearing of the court’s finding 3/6/12 Order finding adequate cause
for the delay in filing the same.
(Id.)
Neither of the two motions referenced by the PCR court appear on the record. (See
Ex. A, Index ROA at 10, items filed from 3/9/12 thru 12/30/13.) Respondents assert that,
despite diligent efforts, neither copies of the referenced documents nor evidence of their
filing have been located. (Supp. Answer, Doc. 33 at 5-6.)
Respondents argue that this Court should conclude that the grant of the extension
of time for rehearing should be viewed, not as a finding that the April 4, 2012 motion(s)
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for rehearing was timely, but as a grant of leave to file a then not-yet-filed (and never filed)
motion for rehearing. (Supp. Ans., Doc, 33 at 10.) Respondents base this on: (1) the
Order’s directive granting an extension “to file a motion for rehearing”; (2) the PCR court
went on to discuss claims not discussed in the filed motion(s) for rehearing (3) the PCR
court’s failure to specify that it had been presented with the filed motions for rehearing;
and (4) the PCR court’s failure to explicitly find the already filed motion(s) timely.
For the following reasons, the undersigned finds that the December 20, 2013 Order
deemed the April 4, 2012 motion(s) for rehearing timely. First, the PCR court had
described the granted motion to extend as seeking an extension for the motion for
rehearing “filed 4/4/12,” not as seeking leave to file some other motion for rehearing.
Second, the PCR court’s reference to documents “not seen previously” suggests
not merely that the particular judge had not looked at them, but that they had not
previously been made a part of the record. This comports with the practical relationship
between the clerk of a court and the court itself. Clerks receive a variety of documents,
but until they are filed and docketed, the judges generally have neither notice nor the ability
to review such documents. And in an era of electronic filing (which applied to the PCR
court given its reference in its Order that the case was “eFiling eligible”), an assigned
judge commonly automatically receives notice of all filings in a case. In this case, the
December 20, 2013 Order was issued by Judge Robert L. Gottsfield, the same judge who
had issued the dismissal being challenged. (See Exh. CCC, Order 3/9/12.) And the judge
noted that the filings had been presented by the “Rule 32 Unit,” which would be consistent
with unfiled documents. Thus, Judge Gottsfield would not be expected to reference the
previously filed motion(s) for rehearing as being newly “presented” to the court.
Third, assuming the motion for extension sought an extension to file some other
motion for rehearing (despite the PCR court’s description that it was directed at the April
4, 2012 filing), the PCR court would have been expected to either set a deadline for any
such motion to be filed, or to direct the filing of a lodged motion for rehearing presented
with the motion to extend. The PCR court did neither.
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Fourth, the PCR court’s discussion of Graham, Miller and similar cases was not
disconnected from either the seventh PCR proceeding or the motion for rehearing therein.
The seventh PCR notice specifically referenced Petitioner’s minority at the time, and his
motion(s) for rehearing specifically argued cruel and unusual punishment of a juvenile
offender under the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005)
(death penalty for juvenile offenders cruel and unusual). (Exh. DDD, Mot. Rehearing at
4.)
Respondents assert they have been unable to find any resolution of the filed
motion(s) for rehearing. (Supp. Answer, Doc. 33 at 6.)
To the contrary, the PCR court granted the motion for rehearing and allowed the
seventh PCR proceeding to continue on the limited ground that Petitioner’s allegations of
his minority at the time of his plea (and thus at the time of the offense) could be valid
Miller claims. The court ruled:
The court grants defendant’s seventh notice of post-conviction
relief on the one issue that he was 17 years old when he committed
one or more of the capital crimes for which he was convicted.
In view of this ruling the motion for extension of time to file a
petition for review is now moot and denied without prejudice. If in
the future defendant’s requests for relief are denied (ie the re-hearing
and the seventh [sic] [eighth] Rule 32) then it would be appropriate
to request additional time to file a petition for review by a higher court
to consider such rulings.
(Exh. FFF, Order 12/20/13 at 2.)
The record provides no reference to a separate ruling on the allowed claim based
on minority when the offense committed from the seventh PCR proceeding. Indeed,
Petitioner’s PCR Petition in his eighth PCR proceeding asserts his “2012” proceeding was
“still in court.” (Exh. JJJ, 2015 PCR Pet. at 3.) However, this claim was included in
Petitioner’s Eighth PCR Petition (Exh. JJJ at 4-J to -K), and fully litigated as part of that
proceeding. And the ruling in the eighth PCR proceeding anticipates the simultaneous
resolution of both proceedings, i.e. “requests for relief are denied (ie the rehearing and the
seventh [sic] [eighth] Rule 32.” (Exh. FFF, Order 12/20/13 at 2.) And counsel was
appointed to address the claims without a distinction between the two proceedings:
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It is this court’s view that counsel should be appointed to
examine the record of defendant’s convictions and his actual actions
closely and his age at the time of commission with an eye to these
recent Supreme Court cases. These issues have to be developed and
presented to this court.
(Id. at 3.)
Accordingly, the undersigned concludes that Petitioner’s seventh PCR proceeding
was ultimately decided jointly with his eighth PCR proceeding.
8. Eighth PCR – 2/19/13-11/12/13
On February 25, 2013 Petitioner commenced his eighth PCR proceeding by filing
a PCR Notice dated February 19, 2013, and arguing a change of law based on Graham v.
Florida, 560 U.S. 48, 130 S. Ct. 2011(2010) (8th Amendment prohibits life without parole
for juvenile not convicted of homicide), asserting his life sentence was cruel and unusual
punishment given his minority. (Exh. EEE.) In the same order which granted the motion
to extend time to file a motion for rehearing in the seventh PCR, the PCR court found a
basis to proceed on the February 25, 2013 notice (which it labelled as “a seventh notice of
post-conviction relief”), appointed counsel and set a briefing schedule. (Exh. FFF, Order
12/16/13 at 1.)
Counsel eventually filed a Notice of No Colorable Claim (Exh. HHH) and
Petitioner was granted leave to file a pro per PCR petition, with counsel remaining in an
advisory capacity. (Exh. III, Order 2/19/15.) Petitioner eventually filed his pro per PCR
Petition (Exh. JJJ) raising claims under Graham and Miller v. Alabama, 567 U.S. 460, 132
S. Ct. 2455 (2012). In an Order filed June 2, 2015, the PCR court dismissed the petition
as without merit.
On September 8, 2015 Petitioner filed a Motion for Rehearing dated September 1,
2015 (Exh. NNN). In an Order filed October 13, 2015, the motion was denied as without
merit (noting that Petitioner asserted he had not received the order, and thus raised no
ground for reconsideration). (Exh. OOO, Order 10/13/15.)
Petitioner did not seek further review.
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9. Ninth PCR – 1/25/17-10/7/24
On January 25, 2017, Petitioner commenced his ninth PCR proceeding by filing
through counsel a PCR Notice (Exh. PPP). Petitioner asserted a claim and change of law
citing, inter alia, Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 718 (2016). A
Supplemental PCR Notice (Exh. QQQ) was filed by counsel on February 16, 2017.
On April 20, 2017, Petitioner filed with the PCR court a pro se Petition for Writ of
Habeas Corpus (Exh. UUU), which was effectively stricken by the PCR Court as
improperly filed because Petitioner was represented. Petitioner’s proceeding and other
similar cases were combined for administration. (Exh. RRR, Order 3/13/17; Exh. SSS,
Order 4/25/17.)
Ultimately, counsel filed on August 1, 2022 a PCR Petition (Exh. ZZZ), arguing
that his sentence of life with parole after 25 years, with consecutive sentences on the other
charges of 21 years, was a de facto sentence of life without parole. In an Order filed May
30, 2023, the PCR court dismissed the Petition on the merits. (Exh. CCCC, Order
5/25/23.)
Petitioner filed through counsel a Petition for Review (Exh. DDDD). On
November 30, 2023, the Arizona Court of Appeals granted review but summarily denied
relief based on failure to establish an abuse of discretion. (Exh. FFF, Mem. Dec.
11/30/23.) Petitioner then filed through counsel a Petition for Review by the Arizona
Supreme Court (Exh. GGGG). That court denied review in an order dated September 10,
2024. The Arizona Court of Appeals issued its Mandate on October 7, 2024. (Exh.
HHHH, Mandate.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at
Florence, Arizona, commenced the current case by filing his Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 on January 21, 2025 (Doc. 1). Petitioner’s Petition
asserts the following four grounds for relief:
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(1) The appellate court erred in dismissing his claim “based on an
[Eighth Amendment] violation” under Miller v. Alabama, 567
U.S. 460 (2012), due to the “excessiveness[s] and
disproportionality of [the] sentence, whose crimes reflect
transient immaturity.”
(2) “Due process violation as to the Antijuvenile Death Penalty
Act of 1988.”
(3) “Due process violation . . . by way of breach of court
procedure[] in the Petitioner[’]s juvenile case, prior to
transfer.”
(4) A violation of Petitioner’s Eighth and Fourteenth Amendment
rights based on a “[b]reach of plea[] agreement in 90-90602.”
(Order 1/29/25, Doc. 6 at 2.)
Response - On March 6, 2025, Respondents filed their Answer (Doc. 10).
Respondents argue that Grounds 2, 3, and 4 are untimely by 27 years, and Ground 1 is
untimely by 8 years. With regard to the latter, Respondents argue the claim accrued and
the limitations period began to run on June 25, 2012 when the Miller decision issued, and
the available statutory and equitable tolling is insufficient to render the Petition timely.
Respondents further argue that Petitioner has procedurally defaulted his state remedies on
his claims in Grounds 2, 3, and 4.
Reply - On March 19, 2025, Petitioner filed an Amended Reply (Doc. 15)
(hereinafter “Reply”). Petitioner argues his Petition is timely because his statute of
limitation did not begin to run until the Arizona Supreme Court’s order denying review on
September 10, 2024 in Petitioner’s Ninth PCR Proceeding, and he can raise newly
discovered claims at any time. He further argues that his claims in Grounds 2, 3, and 4
have never been raised previously, and thus are “newly discovered.” He argues the merits
of his claim in Ground 1, and argues that Grounds 2 and 3 are newly discovered, and
amount to constitutional error.
Supplements – On August 22, 2025, the Court directed Respondents to supplement
their Answer and the record to address the status of Petitioner’s Motion for Rehearing in
his seventh PCR proceeding and any related statutory tolling. Respondents filed their
Supplement on September 12, 2025. Petitioner did not reply, and his time to do so expired
on October 8, 2026.
/ /
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III. APPLICATION OF LAW TO FACTS
A. TIMELINESS
1. One Year Limitations Period
Respondents assert that Petitioner’s Petition is untimely. As part of the Anti-
Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-
year statute of limitations for all applications for writs of habeas corpus filed pursuant to
28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28
U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and
must be dismissed. Id.
2. Commencement of Limitations Period
a. Conviction Final
The one-year statute of limitations on habeas petitions generally begins to run on
"the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).4
Here, Petitioner’s direct review was his appeal.
Petitioner argues in his reply that the September 10, 2024 decision of the Arizona
Supreme Court in his ninth PCR proceeding marks the relevant date for commencement
of his one year. (Reply, Doc. 15 at 1-2.) The effect of that proceeding is addressed
hereinafter with regard to statutory tolling. However, to the extent that Petitioner intends
to suggest that this 2024 decision marks the commencement of his limitations period, he
is mistaken. That decision was not part of direct review, but rather collateral, post-
conviction review, and Section 2244(d)(1)(A) refers only to “direct review.”
Petitioner’s direct appeal remained pending at least through July 24, 1992, when
the Arizona Court of Appeals denied his appeal.5 (Exh. J.) Thereafter, Petitioner had 35
4 Later commencement times can result from a state created impediment, newly recognized
constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. §
2244(d)(1)(B)-(D). Except as discussed hereinafter, Petitioner proffers no argument that
any of these apply.
5 On June 8, 1992 Arizona eliminated direct appeals for pleading defendants in noncapital
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days to seek review by the Arizona Supreme Court. Ariz. R. Crim. Proced. 31.19(c)
(1992) (30 days); Ariz. R. Crim. Proced. 1.3 (5 days for mailing). Accordingly,
Petitioner’s time to seek review by the Arizona Supreme Court expired 35 days after the
appellate court decision, or on Friday, August 28, 1992.6
However, the habeas statute of limitations was not adopted until April 24, 1996,
after Petitioner’s conviction had already become final. Consequently, Petitioner had a
one-year grace period that commenced on April 25, 1996, and expired one year later, on
April 24, 1997, in which he could file his habeas petition. Patterson v. Stewart, 251 F.3d
1243, 1246 (9th Cir. 2001) (applying the “anniversary” method for calculating expiration
of limitations period).
Petitioner argues in his Reply that because his case predated the AEDPA he “can
file as may PCRs as needed as long as the merits (Grounds) are newly discovered.” (Reply,
Doc. 15 at 2.) But the grace period does not eliminate the applicability of the “finality”
rule in § 2244(d)(1)(A), it only extended it to April 24, 1997. Neither did the grace period
restrict the applicability of the other commencement triggers, but only delayed their
triggering to at least April 24, 2996.
b. New Rights
The habeas limitations statute provides a later commencement date of “the date on
cases, making their first, of-right PCR proceeding their only form of appeal, and thus their
“direct review” for purposes of § 2244(d)(1). See Ariz. Rev. Stat. § 13-4033(B) (1992);
1992 Ariz. Legis. Serv. Ch. 184 (H.B. 2481); Summers v. Schriro, 481 F.3d 710, 717 (9th
Cir. 2007) (treating as “direct review”). Here, however, Petitioner’s direct appeal was
already pending prior to that date, was not affected, and thus it continues to constitute the
direct review of his conviction.
6 For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a
petitioner can file a petition for a writ of certiorari from the United States Supreme Court,
whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S.
134, 150 (2012). However, the Supreme Court “can review…only judgments of a ‘state
court of last resort’ or of a lower state court if the ‘state court of last resort’ has denied
discretionary review.” Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (citing U.S. Sup.Ct.
R. 13.1 and 28 U.S.C. § 1257(a)). Here, Petitioner did not seek direct review by the
Arizona Supreme Court. Accordingly, the time for seeking a writ of certiorari with the
U.S. Supreme Court cannot be considered in determining when Petitioner's judgment
became final. Id.
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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.” 28 U.S.C. § 2244(d)(1)(C).
Respondents concede that Petitioner’s claim in Ground 1 arises from a “newly
recognized constitutional right. In particular, Petitioner relies on Miller v. Alabama, 567
U.S. 460, 132 S. Ct. 2455 (June 25, 2012), in which the Supreme Court first held that “an
individual who commits a homicide when he or she is under 18 may be sentenced to life
without parole, but only if the sentence is not mandatory and the sentencer therefore has
discretion to impose a lesser punishment.” Jones v. Mississippi, 593 U.S. 98, 100 (2021).
“Miller announced a substantive rule of constitutional law,” and thus is retroactively
applicable to cases on review. Montgomery v. Louisiana, 577 U.S. 190, 212 (January 25,
2016), as revised (Jan. 27, 2016).
Although the Ninth Circuit has not yet issued a published decision on the issue, the
undersigned concludes for the following reasons that the date of a finding of retroactivity
is irrelevant to the calculation of the limitations period under § 2244(d)(1)(C), apart from
it being a condition precedent to application of the rule. First, a natural reading of the
text of § 2244(d)(1)(C) explicitly ties the commencement only to the date of the initial
recognition of the right. Second, for purposes of section 2244(d)(1)(C), retroactivity need
not be decided by the Supreme Court, a circuit court, or indeed any court other than the
district court initially deciding the petition. Indeed, subject to their jurisdictional limits,
any court can apply the retroactivity framework under Teague v. Lane, 489 U.S. 288
(1989) for purposes of § 2244(d)(1)(C). Brian R. Means, Made retroactively applicable to
cases on collateral review, Federal Habeas Manual § 9A:30 (June 2025). Cf. Tyler v.
Cain, 533 U.S. 656, 661(2001) (exceptions on second and successive petitions for a new
rule of constitution law “made retroactive…by the Supreme Court” under 28 U.S.C. §
2244(b)(2)(A) requires a holding on retroactivity by the Supreme Court); and Brian R.
Means, Rules made retroactive to cases on collateral review by the Supreme Court,
Federal Habeas Manual § 11:37 (June 2025). Third, the Supreme Court has interpreted
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identical language in the statute governing motions to vacate as tying the limitations period
to the recognition of the right, concluding it “unequivocally identifies one, and only one,
date from which the 1–year limitation period is measured: ‘the date on which the right
asserted was initially recognized by the Supreme Court.’” Dodd v. United States, 545 U.S.
353, 357 (2005) (quoting 28 U.S.C. § 2255(f)(3)). Fourth, the Ninth Circuit has agreed in
an unpublished decision addressing claims under Miller. See Steilman v. Michael, 859 F.
App'x 123, 125 (9th Cir. 2021). Fifth, other circuits have reached the same conclusion
under § 2244(d)(1)(C). See In re Rosado, 7 F.4th 152, 157 (3d Cir. 2021); Johnson v.
Robert, 431 F.3d 992 (7th Cir. 2005); Brooks v. Jordan, 2020 WL 4073268, at *2 (6th Cir.
June, 8, 2020) (unpublished); and Proctor v. Whitten, 2021 WL 5755629, at *2 (10th Cir.
Dec. 3, 2021) (unpublished). Sixth, leading treatises agree. See Davis, et al., Events
starting running of habeas limitations period—Recognition of constitutional right by
Supreme Court, 16A Fed. Proc., L. Ed. § 41:352 (December 2025) (“the period runs from
the date the right was initially recognized, even if the Court does not declare that right to
be retroactive until later”); and Brian R. Means, When the limitations period commences
for newly recognized rights, Federal Habeas Manual § 9A:31 (June 2025). Seventh, other
judges in the District of Arizona agree. See e.g. Conley v. Shinn, CV-22-0985-PHX-SRB-
DMF, 2022 WL 18215951, at *10 (D. Ariz. Sept. 27, 2022), report and recommendation
adopted, 2023 WL 142913 (D. Ariz. Jan. 10, 2023); Guzman v. Shinn, CV-21-1277-PHX-
SPL-MHB, 2022 WL 21747975, at *4 (D. Ariz. Mar. 16, 2022), report and
recommendation adopted, 2022 WL 21747983 (D. Ariz. Apr. 8, 2022); Johnson v.
Thornell, CV-23-0004-TUC-AMM-MSA, 2025 WL 2393575, at *7 (D. Ariz. Feb. 19,
2025), report and recommendation adopted sub nom. Johnson v. Shinn, 2025 WL 2390651
(D. Ariz. Aug. 18, 2025); and Kerl v. Shinn, CV-21-0196-SPL-MTM, 2024 WL 4828498,
at *3 (D. Ariz. Sept. 24, 2024), report and recommendation adopted, 2024 WL 4827449
(D. Ariz. Nov. 19, 2024).
Accordingly, Petitioner’s limitations period on his Miller claim commenced
running on June 26, 2012, the day after the June 25, 2012 decision in Miller, and absent
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tolling expired one year later on June 25, 2013.
c. New Facts
Section 2244(d)(1)(D) provides an alternative commencement of “the date on
which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” Petitioner argues this provision applies to all of
his claims. (Reply, Doc. 15 at 1-4.)
Petitioner fails to show that this provision applies to his claim in Ground 1.
Petitioner would have been aware since his sentencing that he had “commit[ted] a
homicide when he…was under 18” and that his consecutive sentences when combined
amounted to what Petitioner argues is a defacto “sentence[] to life without parole.” See
Jones, 593 U.S. at 100. While he might not have been aware at sentencing whether the
sentence was “mandatory,” Jones, 593 U.S. at 100, he proffers no reason why he could
not, with due diligence, have discovered that fact before his sentencing.
Moreover, the mandatory nature of his sentence was not a “fact” to be discovered,
but rather a matter of law. Section 2244(d)(1)(D) does not extend to a lack of knowledge
of the law, unless it constitutes a decision in Petitioner’s own case. Shannon v. Newland,
410 F.3d 1083, 1088 (9th Cir. 2005) (distinguishing between discovery of changes or
clarifications in state law and discovery of “factual predicate”). Under § 2244(d)(1)(D),
“[t]ime begins when the prisoner knows (or through diligence could discover) the
important facts, not when the prisoner recognizes their legal significance.” Hasan v.
Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001). The rationale is well put by the Seventh
Circuit:
Like most members of street gangs, Owens is young, has a limited
education, and knows little about the law. If these considerations
delay the period of limitations until the prisoner has spent a few years
in the institution's law library, however, then § 2244(d)(1) might as
well not exist; few prisoners are lawyers.
Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000), as amended (Jan. 22, 2001).
Petitioner raises arguments in his Reply about the timeliness of Ground 1, based on
the sentence being “disproportionate,” errors in reports about the juvenile prosecution, and
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an agreement that the additional charges were supposed to be dropped. (Reply, Doc. 15 at
3-4.) But Petitioner proffers no information about when these facts were “discovered,”
nor anything to show that they could not have been discovered long ago with due diligence.
Regarding Grounds 2, 3, and 4, Petitioner argues that these must be “newly
discovered” because they have not “been brought up before.” (Reply, Doc. 15 at 2.) But
it is the discoverability of the claim, not when it has been presented to the state courts,
which governs § 2244(d)(1)(D). Petitioner proffers no information about when he
discovered (or with due diligence could have discovered) the facts underlying his claims
in these grounds.
Ground 2 is based upon purported 1988 legislation (the “Antijuvenile Death
Penalty Act of 1988”) and a case, “Blythe,” from 1978. (Petition, Doc. 1 at 8.) These are
not predicate facts, but law. And Petitioner makes no showing these were not discoverable
before sentencing.
Ground 3 is based upon the procedures employed in the trial court during the
transfer from the juvenile court to the criminal court. But Petitioner was present during
these proceedings, and thus aware of those facts before sentencing.
Ground 4 asserts a breach of the plea agreement when Petitioner was labelled
“Deviant.” But Petitioner offers nothing to show he was not aware of the terms of the plea
agreement or such labelling before the imposition of sentence.
Accordingly Petitioner fails to show he is entitled to a later commandment deadline
because of undiscovered factual predicates.
d. Conclusion re Commencement
Based on the foregoing, the undersigned concludes that Petitioner’s conviction
became final no later than August 28, 1992, upon expiration of his time to file a petition
for review with the Arizona Supreme Court. Thus, his ordinary one year began running
on April 25, 1996 with the passage of AEDPA’s statute of limitations and expired one year
later, on Thursday, April 24, 1997.
Petitioner fails to show that his claims in Ground 2, 3, and 4 are subject to a latter
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commencement time, whether based on new rules or new discovered factual predicates.
Petitioner’s claim in Ground 1 is subject to the later commencement for new,
retroactive rules. But the one year began running on that claim no later than June 26, 2012,
after the Miller decision and without tolling expired on June 25, 2013.
3. Statutory Tolling
The AEDPA provides for tolling of the limitations period when a "properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
a. Insufficient Tolling on Grounds 2, 3, 4
As discussed above Petitioner’s limitations period on Grounds 2, 3 and 4
commenced running no later than April 25, 1996, and without tolling expired on April 24,
1997. Petitioner did not commence his first PCR proceeding until early 1995, signing his
first PCR Notice (Exh. GG) on February 28, 1995 and filing it March 7, 1995, more than
a year before his limitations period would have begun running. It remained pending, and
Petitioner’s one year habeas limitations period tolled, until Tuesday, October 1, 1996 when
his time to see further review expired. Petitioner’s one year began running thereafter, on
October 2, 1996, and expired on October 1, 1997.
Petitioner’s second PCR proceeding was not commenced until 2012, filing his PCR
notice dated August 21, 2002 on September 19, 2002. By the earlier of those dates,
Petitioner’s limitations period had been expired for almost five years. Once the statute has
run, a subsequent post-conviction or collateral relief filing does not reset the running of
the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, Petitioner has no statutory
tolling applicable on these grounds, either from his second PCR proceeding or any
subsequent proceeding.
b. Insufficient Tolling on Ground 1
As discussed herein above, Petitioner’s limitations period on Ground 1 began
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running on June 26, 2012 (after the Miller decision), and without tolling expired on June
25, 2013. Petitioner’s first through fifth PCR proceedings were fully concluded and no
longer pending prior to June 26, 2012. Accordingly, they provide no statutory tolling.
Petitioner’s sixth PCR proceeding was commenced and dismissed in 2010. While
Petitioner apparently still has pending an untimely motion for rehearing in that proceeding,
the proceeding was dismissed as untimely. Statutory tolling of the habeas limitations
period only results from state applications that are “properly filed,” and an untimely
application is never “properly filed” within the meaning of § 2244(d)(2). Pace v.
DiGuglielmo, 544 U.S. 408 (2005).
Respondents have argued that a motion for rehearing that remains unresolved will
be deemed denied by operation of law. (Supp. Resp., Doc. 33 at 1 The primary authority
cited by Respondents is inapplicable because it dealt with circumstances where a petition
is denied without the court explicitly addressing all of the claims purportedly included in
the Petition. See State v. Evans, 252 Ariz. 590, 596, ¶15, 506 P.3d 819, 825 (Ct. App.
2022). This holding has its roots in cases where a motion is not addressed, but a final
decision in the proceeding subsequently entered. See e.g. State v. Mendoza-Tapia, 229
Ariz. 224, 231, 273 P.3d 676, 683 (Ct. App. 2012) (motion for competency hearing
deemed denied where sentence entered, cited by Evans); State v. Hill, 174 Ariz. 313, 323,
848 P.2d 1375, 1385 (1993, cited by Mendoza-Tapai) (motion to strike presentence report
deemed denied where sentence and judgment entered); and Sanchez v. Ryan, CV-15-1257-
PHX-JJT-JZB, 2016 WL 3660848 (D. Ariz. Mar. 10, 2016), report and recommendation
adopted, 2016 WL 3654272 (D. Ariz. July 6, 2016) (motion for extension of time to file
petition deemed decided when PCR petition eventually filed denied on the merits). With
due deference to the deciding judge, the other federal case cited by Respondents failed to
identify or address this distinction. See Love v. Escapule, CV-15-00924-PHX-ROS, 2016
WL 825837, at *2 (D. Ariz. Mar. 3, 2016) (applying Hill to a motion for rehearing in a
PCR proceeding with no subsequent order). Here, there were no subsequent orders in
Petitioner’s sixth PCR proceeding to treat as a denial of the motion for rehearing.
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Accordingly, it must be deemed to remain pending.
Moreover, Petitioner’s motion for rehearing (even if deemed timely) was not an
“application for…review with respect to the pertinent judgment or claim,” but rather an
application for review of the PCR Court’s decision. It was thus merely a continuation of
the untimely PCR proceeding. See Ta Yoat Ni v. Ryan, No. CV-13-01155-PHX-PGR, 2014
WL 2569139, at *5 (D. Ariz. June 9, 2014). Thus, none of that proceeding results in
statutory tolling.
Even if not deemed a continuation of the untimely proceeding, but rather a new
application for collateral relief, his Motion for Rehearing could not be deemed “properly
filed.” To be properly filed, an application must not only be timely, but also requires “its
delivery and acceptance [must be] in compliance with the applicable laws and rules
governing filings…for example, the form of the document, the time limits upon its
delivery, the court and office in which it must be lodged, and the requisite filing fee.”
Artuz v. Bennett, 531 U.S. 4, 8 (2000). Arizona requires that requests for relief from a
conviction or sentence sought in the trial court be by either a Rule 32 post-conviction relief
proceeding, a post-trial motion (see Ariz. R. Crim. Proced. 24 identifying motions for new
trial, to vacate judgment, to modify sentence or correction clerical errors), or a petition for
writ of habeas corpus. Ariz. Rev. Stat. § 13-4233. Moreover, a post-conviction
proceeding can be commenced only by filing a notice of post-conviction relief. Ariz. Rev.
Stat. § 13-4234(A). Petitioner’s motion for rehearing was not a notice of post-conviction
relief, a post-trial motion, or a habeas petition. Thus it was not “properly filed” and did
not result in statutory tolling.
Petitioner’s seventh PCR proceeding was commenced no earlier than February
22, 2012, before the limitations period on Ground 1 started running, when Petitioner dated
his PCR Notice (Exh. BBB).7
7 For purposes of calculating tolling under § 2244(d), the federal prisoner “mailbox rule”
applies. Under this rule, a prisoner’s state filings are deemed “filed” (and tolling thus
commenced) when they are delivered to prison officials for mailing. Anthony v. Cambra,
236 F.3d 568 (9th Cir. 2000). Moreover, the “mailbox rule” applies to determining whether
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While portions of that proceeding were dismissed as untimely, as discussed herein
above, his claim regarding his juvenile offender status was allowed to proceed on
rehearing, and was decided with and remained pending with his eighth PCR proceeding.
Because they find no grant of the Motion for Rehearing, Respondents argue that
under Pace this Court is bound by the original determination by the PCR Court that the
proceeding was untimely. (Supp. Ans., Doc. 33 at 2.) Indeed, in Pace the Court
concluded that a state court’s ruling on a timeliness issue is “the end of the matter.” Pace
v. DiGuglielmo, 544 U.S. 408, 414 (2005) (quoting Carey v. Saffold, 536 U.S. 214, 226
(2002)).
But, for purposes of applying the “properly filed” requirement of § 2244(d), the
federal courts look to the “last reasoned decision” of the state courts. Curiel v. Miller, 830
F.3d 864, 869 (9th Cir. 2016). Here, the state court’s ultimate ruling on timeliness in the
seventh PCR proceeding (when granting the motion for rehearing) was that the claim based
on Miller et al. could proceed.
This Court cannot reject the state court’s conclusion, and determine on its own to
the contrary. “If a California court has held that a state habeas petition was timely or
untimely, we are bound by that decision.” Valdez v. Montgomery, 918 F.3d 687, 692 (9th
Cir. 2019). The only time the federal habeas court can go further is if the state court has
issued a summary ruling, in which case the habeas court must examine the delay and
determine for itself if the state court would have held the state petition untimely. Id.
(quoting Evans v. Chavis, 546 U.S. 189, 198 (2006)). Even if this Court could second
guess the PCR court, Respondents proffer no basis for this Court to conclude that the
an Arizona prisoner’s state filings were timely. Although a state may direct that the prison
mailbox rule does not apply to filings in its court, see Orpiada v. McDaniel, 750 F.3d
1086, 1090 (9th Cir. 2014), Arizona has applied the rule to a variety of its state proceedings.
See e.g. Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.1995) (notice of direct
appeal); State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App.1999) (PCR notice);
State v. Goracke, 210 Ariz. 20, 23, 106 P.3d 1035, 1038 (App. 2005) (petition for review
to Arizona Supreme Court). However, here there is no need to finally determine the
applicability of either mailbox rule to determine the effect of Petitioner’s filings, because
even assuming filing as of the date of the documents, Petitioner’s Petition is untimely.
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Miller claim identified by the PCR court in the seventh PCR notice was untimely. Indeed,
that Notice was filed less than four months after Miller was decided.8 Respondents make
no suggestion that a four month delay in bringing a claim based on a new rule of law would
render it untimely under Arizona’s rules.
Petitioner’s eighth PCR proceeding was commenced on February 25, 2013, during
the pendency of his seventh PCR proceeding, and remained pending through October 12,
2015 when Petitioner’s Motion for Rehearing was denied. (See Exh. OOO, Order
10/12/15.) A post-conviction application remains pending until the expiration of time
allowed to seek further review, even if such review is not sought. Melville v. Shinn, 68
F.4th 1154, 1160 (9th Cir. 2023). Thereafter, Petitioner had 35 days to seek further review
by the Arizona Court of Appeals. Ariz. R. Crim. Proced. 32.9(c) (2015) (time for petition);
and Ariz. R. Crim. Proced. 1.3(a) (2015) (five days after mailing). He did not seek such
review, and thus his seventh and eighth PCR proceedings remained pending through
Monday, November 16, 2015.
Thereafter, Petitioner’s one year began to run, and expired on Wednesday,
November 16, 2016.
Petitioner’s ninth PCR proceeding was not commenced until more than three
months later, on January 25, 2017, when Petitioner filed through counsel a PCR Notice
(Exh. PPP). Thus, this post-expiration proceeding neither reset the limitations period nor
did it result in statutory tolling. Jiminez, 276 F.3d at 482.
Conclusion re Statutory Tolling – Based on the foregoing, the undesigned
concludes Petitioner is not entitled to any statutory tolling on his claims in Grounds 2, 3
and 4. And, Petitioner is entitled to tolling on the limitations period on his claim in Ground
1 from its inception through November 16, 2015, but his limitations period ran for the
8 It is true the PCR court also referenced Graham v. Florida, 560 U.S. 48 (2010) decided
several years earlier. (Exh. FFF, Order 12/16/23 at 2.) However, as recognized by the
PCR court, Graham addressed only non-homicide juvenile offenders, and it was Miller
that addressed homicide offenses. The court noted: “Defendant claims he was 17 at the
time of committing one or more of his charged homicide offenses.” (Id. at 3.)
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following year, expiring on November 16, 2016.
4. Equitable Tolling
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available
in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's control
make it impossible to file a petition on time' and ‘the extraordinary circumstances were
the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
To receive equitable tolling, [t]he petitioner must establish two
elements: (1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstances stood in his way. The
petitioner must additionally show that the extraordinary
circumstances were the cause of his untimeliness, and that the
extraordinary circumstances ma[de] it impossible to file a petition on
time.
Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations
omitted). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is
very high, lest the exceptions swallow the rule.’ ” Miranda v. Castro, 292 F.3d 1063, 1066
(9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)).
Petitioner bears the burden of proof on the existence of cause for equitable tolling.
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153
(9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of
limitations on habeas petitions, but the petitioner bears the burden of showing that
equitable tolling is appropriate.”).
Petitioner does not proffer any grounds for equitable tolling. (See Petition, Doc. 1
at “11”; and Reply, Doc. 15, generally.)
Petitioner does assert that he was “unlettered in the law in 1990/91.” (Reply, Doc.
15 at 5.) But “a pro se petitioner's lack of legal sophistication is not, by itself, an
extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006). “[I]gnorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.” Fisher v. Johnson, 174 F.3d 710, 714
(5th Cir.1999). Rather, to qualify for equitable tolling, “an external force must cause the
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untimeliness, rather than…merely oversight, miscalculation or negligence on the
petitioner's part.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009)
(citations, quotations and alterations omitted).
The undersigned finds no basis for equitable tolling.
5. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. §
2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas
petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S.
383 (2013). To invoke this exception to the statute of limitations, a petitioner “’must show
that it is more likely than not that no reasonable juror would have convicted him in the
light of the new evidence.’” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
“To be credible, such a claim requires petitioner to support his allegations of constitutional
error with new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at
trial. Because such evidence is obviously unavailable in the vast majority of cases, claims
of actual innocence are rarely successful.” Schlup, 513 U.S. at 324.
Petitioner makes no claim of actual innocence based on new credible evidence, and
the record reveals none.
6. Summary re Statute of Limitations
Taking into account the available statutory tolling, Petitioner’s general one year
habeas limitations period (applicable to Grounds 2, 3 and 4) commenced running on April
25, 1996, and expired one year later, on April 24, 1997. Petitioner is not entitled to any
statutory tolling or equitable tolling on these claims and they are untimely.
Petitioner’s one year on his Miller claim in Ground 1 commenced running on June
26, 2012, the day after the June 25, 2012 decision in Miller, and absent tolling expired one
year later on June 25, 2013. However, Petitioner is entitled to statutory tolling during the
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pendency of his seventh and eighth PCR proceedings, which was pending from the
commencement of the limitations period through November 16, 2015. Thereafter,
Petitioner’s one year began to run, and expired on Wednesday, November 16, 2016.
Petitioner has not shown he is entitled to equitable tolling on this ground. Accordingly,
Ground 1 is untimely.
Nor has Petitioner shown actual innocence. Accordingly, all of his claims must be
dismissed as untimely.
B. OTHER DEFENSES
Respondents argue that Petitioner’s claims in Ground 2 through 4 are procedurally
defaulted. Because the undersigned concludes that Petitioner’s claims in Grounds 2
through 4 are plainly barred by the statute of limitations this other defense is not reached.
IV. CERTIFICATE OF APPEALABILITY
The standard for issuing a certificate of appealability (“COA”) is whether the
applicant has “made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. “If the court issues a certificate, the court must state the specific
issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. §
2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Assuming the recommendations herein are followed in the district court’s
judgment, that decision will be on procedural grounds. Under the reasoning set forth
herein, jurists of reason would not find it debatable whether the district court was correct
in its procedural ruling as to Grounds 2, 3 and 4.
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Jurists of reason might find it debatable whether the district court was correct in the
procedural ruling as to Ground 1. In particular, the conclusion that the seventh PCR
proceeding was decided with (and thus concluded with) the eighth PCR proceeding is
debatable.
However, a certificate of appealability still should not issue because jurists of
reason would not find it debatable whether the petition states a valid claim of the denial of
a constitutional right. The Ninth Circuit has held that where the age of an Arizona juvenile
offender was actually considered at sentencing, Miller does not justify relief even in the
face of Arizona’s temporary elimination of parole. See Jessup v. Shinn, 31 F.4th 1262 (9th
Cir. 2022). Cf State ex rel. Mitchell v. Cooper, 256 Ariz. 1, 535 P.3d 3 (2023), cert.
denied sub nom. Bassett v. Arizona, 144 S.Ct. 2494 (2024). Here, although the trial court
adopted the Plea Agreement’s stipulation of a sentence of life with parole, it explicitly
considered Petitioner’s age at sentencing. (See Exh. BB, R.T. 5/17/91 (sentencing) at 31-
32.) The undersigned acknowledges that Petitioner’s circumstances are somewhat unique
from the cited authority, given the stipulation to the life sentence. But because the
sentence given effectively includes parole, Miller simply does not apply.
Moreover, the intervening passage of Ariz. Rev. Stat. § 13-716 (eff. 7/24/14)
(reinstituting parole for juvenile offenders sentenced to life with release) renders harmless
any Miller error at sentencing. Bassett v. Thornell, CV-24-2352-PHX-SRB (JFM), 2025
WL 3473395 (D. Ariz. Sept. 19, 2025), report and recommendation adopted, CV-24-
02352-PHX-MTL, 2025 WL 3471698 (D. Ariz. Dec. 3, 2025) (applying deferential habeas
review to similar claims).
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH
PREJUDICE.
(B) To the extent the foregoing findings and recommendations are adopted in the District
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Court’s order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See also Rule 8(b), Rules
Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days
within which to file a response to the objections. Failure to timely file objections to any
findings or recommendations of the Magistrate Judge will be considered a waiver of a
party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th
Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that
“[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation
issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated: February 13, 2026
25-0169r RR 25 08 15 on HC.docx
James F. Metcalf
United States Magistrate Judge
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