Matthews #345285 v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Tollie Bernon Matthews,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-02273-PHX-DLR (MTM)
REPORT AND RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES, SENIOR UNITED STATES
DISTRICT JUDGE:
On June 30, 2025, self-represented Petitioner Tollie Bernon Matthews, who is
confined in the Arizona State Prison Complex-Yuma, filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. SUMMARY OF CONCLUSION
Petitioner was convicted in Maricopa County Superior Court, case #CR 2019-
002041, of one count of manslaughter, two counts of aggravated assault with a deadly
weapon, two counts of endangerment, and one count of aggravated driving under the
influence and was sentenced to a 15-year term of imprisonment. In his Petition, Petitioner
raises one ground for relief. However, the Petition is untimely and Petitioner is not entitled
to equitable tolling. Petitioner has also failed to demonstrate actual innocence.
Accordingly, the Court will recommend that the Petition for Writ of Habeas Corpus be
denied and dismissed with prejudice.
Case 2:25-cv-02273-DLR Document 15 Filed 05/08/26 Page 1 of 7

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II. BACKGROUND
The Arizona Court of Appeals found the following facts and procedural history as
true:1
J.N. was driving southbound on Dysart Road with his friend, A.M., in
the passenger seat when Matthews’ vehicle struck them from behind,
launching them into oncoming traffic. J.N.’s vehicle collided with two other
vehicles and caught fire. A.M. died at the scene. J.N. and the occupants of
the other two vehicles were injured but survived.
Matthews, who had fallen asleep with his foot on the accelerator,
continued south at a high rate of speed, ultimately coming to a stop after
hitting a curb. Police interviewed Matthews at the scene and observed that
Matthews’ eyes were “droopy” and “watery,” “his speech was slow and
slurred,” “he was swaying,” and he “was having a hard time maintaining his
balance,” indicating he was “under the influence of something.”
Matthews was arrested and his blood was drawn pursuant to a search
warrant. After initial denials, Matthews later admitted that he had taken two
Oxycodone pills fifteen minutes before driving. The blood draw revealed that
Matthews had both Oxycodone and Alprazolam (also known as Xanax) in
his system. Sedation and problems with balance and coordination are side
effects of both drugs—side effects that can interfere with a person’s ability
to drive. . . .
The State charged Matthews with manslaughter, a Class 2 dangerous
felony (Count 1); two counts of aggravated assault, each a Class 3 dangerous
felony (Counts 2 and 3); two counts of endangerment, each a Class 6
dangerous felony (Counts 4 and 5); and two counts of aggravated DUI, each
a Class 4 felony (Counts 6 and 7).
The jury found Matthews guilty as charged. The trial court sentenced
Matthews to concurrent fifteen-year terms of imprisonment for Counts 1 and
2 and imposed lesser concurrent terms of imprisonment for Counts 3 through
5. As to Counts 6 and 7, the court imposed a consecutive five-year probation
tail.
State v. Matthews, 2021 WL 4478672, at *1 (Ariz. Ct. App. Sep. 30, 2021).
1 The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 28 U.S.C.
§ 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting
argument that statement of facts in state appellate court’s opinion should not be afforded
the presumption of correctness).
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Petitioner timely appealed his convictions and sentences, arguing that the superior
court erred by admitting evidence of his prior DUI conviction as other-act evidence under
Arizona Rule of Evidence 404(b). Id. On September 30, 2021, the Arizona Court of
Appeals affirmed Petitioner’s convictions and sentences. Id. The record reflects that the
Arizona Supreme Court denied review on April 11, 2022, and the Mandate issued on May
4, 2022. (Doc. 10-1 at 259, 261; Exhs. E, F.)
On May 23, 2022, Petitioner filed a timely notice of post-conviction relief in the trial court.
(Doc. 10-1 at 270; Exh. G.) The record reflects that appointed counsel filed a “Notice of
Completion of Review” stating that, after completing review of the case, he “[could] find
no meritorious grounds for PCR.” (Doc. 10-1 at 275; Exh. H.) In that same filing, counsel
requested that Petitioner be granted an extension of time to file pro per PCR petition, which
the court granted. (Doc. 10-1 at 275, 286; Exhs. H, I.) On June 8, 2023, the state court
dismissed Petitioner’s PCR proceeding, finding that Petitioner failed to file a PCR petition
and time to do so had expired. (Doc. 10-1 at 289; Exh. J.)
III. PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS
In his Petition, Petitioner raises one ground for relief in which he claims he is in
custody in violation of the United States Constitution. (Doc. 1.) He alleges “officers put
restraints on [his] liberty which led to a conviction that led to [him] being in custody” and
“there is a flaw in the conviction and sentence imposed in violation of the U.S. Constitution
or laws of the U.S., or treat[ie]s.” (Id.)
Respondents filed a Limited Answer. (Doc. 10.) Petitioner has not filed a reply.
IV. STATUTE OF LIMITATIONS
A. Time Calculation
The AEDPA imposes a one-year limitation period, which begins to run “from the
latest of . . . 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). Further,
the one-year limitations period is statutorily tolled for the time period “during which a
properly filed application for State post-conviction or other collateral review . . . is
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pending.” 28 U.S.C. § 2244(d)(2).
On September 30, 2021, the Arizona Court of Appeals affirmed Petitioner’s
convictions and sentences. The Arizona Supreme Court denied Petitioner’s petition for
review on April 11, 2022. Petitioner’s convictions became final 90 days later – on July 11,
2022 – when the time expired for filing a petition for writ of certiorari in the United States
Supreme Court. See 28 U.S.C. § 2244(d)(1)(A) (providing AEDPA statute of limitations
begins “the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review”); Porter v. Ollison, 620 F.3d 952, 958-
59 (9th Cir. 2010) (“When, on direct appeal, review is sought in the state’s highest court
but no petition for certiorari to the United States Supreme Court is filed, direct review is
considered to be final when the certiorari petition would have been due, which is 90 days
after the decision of the state’s highest court.”).
Petitioner, however, initiated PCR proceedings on May 23, 2022. On June 8, 2023,
the state court dismissed the PCR proceeding when Petitioner failed to file a PCR petition.
Petitioner then had 30 days, until July 10, 2023, to file a petition for review in the Arizona
Court of Appeals. See Ariz. R. Crim. P. 32.9(c)(1)(a) (2002) (now amended as Ariz. R.
Crim. P. 32.16(a)(1) (2020)). He failed to do so and the AEDPA statute of limitations began
running the next day and ended on July 11, 2024. Petitioner did not initiate his habeas
proceedings until June 30, 2025. Accordingly, absent equitable tolling or a miscarriage of
justice, his habeas petition is untimely.
B. Equitable Tolling/Miscarriage of Justice
“A petitioner who seeks equitable tolling of AEDPA’s 1-year filing deadline must
show that (1) some ‘extraordinary circumstance’ prevented him from filing on time, and
(2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015)
(citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The petitioner bears the burden of
showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d
1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces,
rather than a petitioner’s lack of diligence, account for the failure to file a timely habeas
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action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be
rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011
(9th Cir. 2009). A petitioner must show that “the extraordinary circumstances were the
cause of his untimeliness and that the extraordinary circumstances made it impossible to
file a petition on time.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). “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)
(citation omitted).
Further, 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, 398 (2013). To establish a “credible” claim of actual innocence, a petitioner
must present “new reliable evidence” and “show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” Schlup v.
Delo, 513 U.S. 298, 324, 327 (1995). See also Jones v. Taylor, 763 F.3d 1242, 1247 (9th
Cir. 2014) (“In order to pass through the Schlup actual innocence gateway, a petitioner
must demonstrate that in light of new evidence, it is more likely than not that no reasonable
juror would have found the petitioner guilty beyond a reasonable doubt.” (cleaned up)).
Here, Petitioner did not file a reply to Respondents’ Answer and he does not
expressly argue equitable tolling. Instead, Petitioner appears to argue actual innocence,
relying on the merits of his habeas claim in Ground One. Petitioner states that “[t]he facts
underlying these claims would be sufficient to establish . . . no reasonable jurist or fact
finder would have found [him] guilty.” (Doc. 1 at 8.) Petitioner claims in Ground One that
the crash occurred as a result of an “undiagnosed narcoleptic episode” rather than driving
under the influence.
The Court finds that Petitioner fails to satisfy the actual innocence standard under
Schlup. To demonstrate actual innocence, a petitioner must “show actual, factual
innocence, not just legal insufficiency of the evidence.” United States v. Ratigan, 351 F.3d
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957, 965 (9th Cir. 2003). Beyond his conclusory statement, Petitioner does not present any
new reliable evidence supporting his claim of an “undiagnosed narcoleptic episode.”
Rather, as noted by the Arizona Court of Appeals, the record reflects that: (1) Petitioner’s
eyes were “droopy” and “watery,” “his speech was slow and slurred,” “he was swaying,”
and he “was having a hard time maintaining his balance,” indicating he was “under the
influence of something”; (2) Petitioner was arrested, his blood was drawn pursuant to a
search warrant, and he admitted that he had taken two Oxycodone pills fifteen minutes
before driving; and (3) the blood draw revealed that Petitioner had both Oxycodone and
Alprazolam in his system. Matthews, 2021 WL 4478672, at *1. Thus, the record establishes
that Petitioner was driving under the influence when the accident occurred.
Accordingly, having failed to present new, reliable evidence, Petitioner has not met
his burden to establish actual innocence that would excuse his failure to file a timely habeas
petition.
V. CONCLUSION
Based on the above analysis, the Court finds that Petitioner’s Petition for Writ of
Habeas Corpus is untimely.
Accordingly,
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas
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 and leave
to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition
is justified by a plain procedural bar and reasonable jurists would not find the ruling
debatable.
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. The
parties shall have 14 days from the date of service of a copy of this Report and
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Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 8th day of May, 2026.
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