Gibson #041023 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Dale Edward Gibson,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-24-08232-PCT-JAT
ORDER
Pending before the Court is Petitioner Dale Edward Gibson’s Amended Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 9). This case was referred to
Magistrate Judge Bachus, who issued a Report and Recommendation (“R&R”)
recommending that the amended Petition be denied and dismissed with prejudice because
it is barred by the statute of limitations. (Doc. 34 at 19). Petitioner filed objections to this
recommendation (Doc. 37), and Respondents filed a reply (Doc. 39). Also pending before
the Court are Petitioner’s Motion for Reconsideration (Doc. 44), Motion to Waive
Arguments (Doc. 45), and Motion for Ruling and Status (Doc. 46). The Court now rules.
I. BACKGROUND
The R&R recounts the factual and procedural history of this case, including the
underlying state court proceedings. (Doc. 34 at 3–9). In his Objection, Petitioner argues
that the R&R “appears to conflict with the record [and] the facts.” (Doc. 37 at 1). He also
states that the R&R “is contradictory to the facts.” (Id. at 6). But Petitioner does not provide
any further detail and does not identify specific facts that Petitioner objects to. Respondents
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do not object to the R&R’s account of the factual and procedural history of the case. (Doc.
39). The Court hereby accepts and adopts the R&R’s recount of the factual and procedural
background of this case. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)
(en banc).
The relevant factual and procedural background, for purposes of this Order, is
summarized herein. On February 2, 2017, following his convictions for manslaughter and
aggravated assault, the superior court sentenced Petitioner to a total of 60 years
imprisonment. (Doc. 34 at 4, 9). On July 31, 2018, the Arizona Court of Appeals affirmed
his convictions and sentence. (Doc. 34 at 4–5). Petitioner filed a petition for review in the
Arizona Supreme Court, which was denied on December 3, 2018. (Id. at 5).
Petitioner filed his first Post-Conviction Relief (“PCR”) Notice on March 20, 2019.
(Id.). The superior court dismissed Petitioner’s first PCR petition on March 9, 2020. (Id. at
6). Petitioner appealed, and the Arizona Court of Appeals dismissed the appeal on May 19,
2021. (Id.). While the appeal of the first PCR proceeding was still pending, Petitioner filed
a second PCR Notice, which was stayed to allow Petitioner to continue his appeal in the
first PCR proceeding. (Id.). On October 25, 2021, the superior court lifted the stay on
Petitioner’s second PCR proceeding and determined that one of the claims was timely.
(Id.). On December 22, 2022, the superior court denied his second PCR petition. (Id.).
On January 17, 2023, Petitioner filed a motion for extension of time to file a petition
in superior court, which was denied on January 20, 2023. (Id.). Petitioner moved for
reconsideration, which the superior court denied on February 15, 2023. (Id.).
Thereafter, Petitioner filed several motions for extensions of time and petitions for
review, all of which were denied as untimely. (Id. at 6–7). On April 28, 2023, the superior
court issued a comprehensive order addressing Petitioner’s filings requesting extensions of
time. (Id.). In that order, the superior court acknowledged the reasons that Petitioner cited
for requesting additional time, including staffing shortages, power outages, and inmate
lockdowns within the Arizona Department of Corrections. (Id.). But the court explained
that none of those limitations constituted a basis to extend time under Arizona law. (Id.).
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Thus, the court denied Petitioner’s requests to extend time. (Id.). Petitioner’s last petition
for review filed in state court was denied by the Arizona Supreme Court on December 15,
2023. (Id.).
Before this Court, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (Doc. 1) on December 13, 2024, and an Amended Petition (Doc. 9) on
March 12, 2025. This case was referred to Magistrate Judge Bachus, who issued an R&R
recommending the petition be denied and dismissed with prejudice because it was untimely
filed. (Doc. 34 at 19). The R&R also recommends that a certificate of appealability not be
issued and leave to proceed in forma pauperis on appeal be denied. (Id.). In that same
Order, the Magistrate Judge ruled on Petitioner’s Motion to Expand the Record (Doc. 30),
granting the motion in part as to the supplemental materials Petitioner provided to the
Court, but denying Petitioner’s request for Respondents to produce additional documents.
(Doc. 34 at 3).
Petitioner moved for an extension of time to object to the R&R and the Court
allowed Petitioner to file his objections by September 12, 2025. (Docs. 35, 36). On
September 11, 2025, Petitioner filed his Objections to the R&R. (Doc. 37). Petitioner also
moves the Court for a certificate of appealability. (Id. at 10). Respondents filed a Reply to
Petitioner’s objections. (Doc. 39).
Petitioner filed a sur-reply to Respondents’ reply brief (Doc. 41). Respondents
moved to strike the sur-reply (Doc. 42), and seeing as no authority permitted Petitioner to
file his sur-reply, the Court granted the motion and struck the sur-reply. (Doc. 43).
Petitioner then filed a Motion for Reconsideration of the Court’s Order striking Petitioner’s
sur-reply. (Doc. 44). Petitioner also filed a Motion to Waive Arguments (Doc. 45), and a
Motion for Ruling and Status (Doc. 46).1
II. MOTION FOR RECONSIDERATION
Petitioner filed a Motion for Reconsideration, urging the Court to reconsider its
Order striking Petitioner’s sur-reply to the Report and Recommendation (“R&R”). (Doc.
1 Because the Court has provided a ruling as requested in Petitioner’s Motion for Ruling
and Status (Doc. 46), the Court will deny that motion as moot.
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44). After Magistrate Judge Bachus issued the Report and Recommendation (Doc. 34),
Petitioner filed an Objection (Doc. 37), Respondents filed a Reply to Petitioner’s Objection
(Doc. 39), and Petitioner filed a sur-reply in response to Respondent’s reply brief (Doc.
41). Respondents moved to strike the sur-reply, and seeing as no authority permitted
Petitioner to file his sur-reply, the Court granted the motion and struck the sur-reply. (Doc
43).
Motions for reconsideration are denied “absent a showing of manifest error or a
showing of new facts or legal authority that could not have been brought to its attention
earlier with reasonable diligence.” LRCiv 7.2(g). Motions for reconsideration should be
granted in only rare circumstances. Lerner & Rowe PC v. Brown Engstrand & Shelly LLC,
684 F. Supp. 3d 953, 955 (D. Ariz. 2023).
Petitioner invokes Federal Rule of Civil Procedure 83(b) as the basis for relief. (Doc.
44 at 2). That Rule provides:
A judge may regulate in any manner consistent with federal law, rules
adopted under 28 U.S.C. §§ 2072 and 2075, and the district’s local rules. No
sanction or other disadvantage may be imposed for noncompliance with any
requirement not in federal law, federal rules, or the local rules unless the
alleged violator has been furnished in the particular case with actual notice
of the requirement.
Fed. R. Civ. P. 83(b). In short, the Court has the inherent authority to regulate litigation
before it, so long as the Court’s action is not barred by any law, rule, or regulation.
Petitioner argues that Respondents “concede[] that Rule 83 permits the Court’s
consideration of Petitioner’s sur-reply” because Respondents state, “[n]either the Rules of
Civil Procedure, not the Court’s local rules, provide for the filing of a sur-reply to a party’s
reply to an objection.” (Doc. 44 at 2 (quoting Doc. 42 at 1-2) (cleaned up)).
Rule 83(b) creates no rights or entitlements that run to litigants. Rather, it is a
catchall provision that provides courts with discretion when the law is silent. The Court
exercised that discretion in granting Respondents’ Motion to Strike Petitioner’s Sur-Reply.
Petitioner pointing to the Rule that grants the Court the authority to do so is not a basis for
challenging the Court’s exercise of jurisdiction. Petitioner identifies no controlling law, no
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newly discovered evidence, and no clear error or manifest injustice in the prior ruling. See
LRCiv 7.2(g). The Court will deny Petitioner’s Motion for Reconsideration (Doc. 44) and
will not consider Petitioner’s improperly filed sur-reply.
III. MOTION TO FIND WAIVER OF ARGUMENTS
Petitioner filed a motion requesting that the Court deem Respondents’ arguments
waived to the extent that they were not made in response to Petitioner’s objections. (Doc.
45). Petitioner argues that Respondents “intentionally failed to address several of
Petitioner’s objections” and “mischaracterize[ed] Petitioner’s clear objections as
non-objections.” (Id. at 2). Petitioner misunderstands the standard governing objections to
a magistrate judge’s Report and Recommendation. Under 28 U.S.C. § 636(b)(1), a district
court reviews de novo any portion of an R&R to which a party has properly objected. That
obligation is imposed on the Court, not Respondents, and the Court undertakes that
obligation regardless of whether Respondents file a reply brief, as there is no requirement
that Respondents file any reply brief at all. The Court will deny the Motion (Doc. 45) and
will not read Respondents’ silence as to any of Petitioner’s objections as a concession.
IV. REVIEW OF REPORT AND RECOMMENDATION
The R&R recommends denying Petitioner habeas relief because his habeas Petition
was untimely filed, and neither equitable tolling, statutory tolling, nor the actual innocence
gateway apply to render the Petition timely.2 (Doc. 34 at 19). The R&R further
recommends that a certificate of appealability and leave to proceed in forma pauperis on
appeal be denied. (Id.).
A. Standard of Review
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3) (“The district judge may accept, reject, or modify the recommended disposition;
2 Because Petitioner does not object to the R&R’s finding that the actual innocence gateway
does not apply, the Court accepts this finding. (Doc. 34 at 18; Doc. 37); Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court
concludes that de novo review of factual and legal issues is required if objections are made,
‘but not otherwise.’”).
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receive further evidence; or return the matter to the magistrate judge with instructions.”).
The district judge must review the findings and recommendations of the Magistrate Judge
de novo if there is an objection from one or both parties. United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau
of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de
novo the portions of the [Magistrate Judge’s] recommendations to which the parties
object”); see also 28 U.S.C. § 636(b)(1) (“[T]he court shall make a de novo determination
of those portions of the [report and recommendation] to which objection is made.”).
Petitioner raises 17 objections to the R&R.3 (Doc. 37 at 2–10). Accordingly, the Court will
review the R&R de novo.
B. Statute of Limitations
As the R&R correctly recounts, under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Petitioner had one year from the date his conviction became final
to file a petition for writ of habeas corpus with this Court. 28 U.S.C. § 2244(d)(1).
Petitioner does not object to the R&R’s conclusion that Petitioner’s conviction became
final on March 3, 2019, and thus that the AEDPA statute of limitations began running on
March 4, 2019. (Doc. 34 at 10; Doc. 37).
Petitioner does, however, object “on the grounds that the entire act itself is
unconstitutional” in violation of the Suspension Clause of the United States Constitution.
(Doc. 37 at 4); U.S. Const. Art. I, § 9, cl. 2. The Ninth Circuit Court of Appeals has rejected
this claim, concluding that “[t]he one-year limitation does not violate the Suspension
Clause because it is not jurisdictional and may be subject to equitable tolling.” Green v.
White, 223 F.3d 1001, 1003–04 (9th Cir. 2000). Accordingly, Petitioner’s objection on this
ground is overruled.
C. Statutory Tolling
Under the AEDPA, Petitioner is entitled to “statutory” tolling during any period he
had a “properly filed application for State post-conviction or other collateral review with
3 To the extent Petitioner objects to a Magistrate Judge hearing his case and “demands a
new venue” (Doc. 37 at 3), that request is denied.
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respect to the pertinent judgment or claim” that was pending. 28 U.S.C. § 2244(d)(2).
Petitioner does not object to the R&R’s determination that “[t]he limitations period ran for
sixteen days, until March 20, 2019, when Petitioner filed a PCR notice.” (Doc. 34 at 10;
Doc. 37).
The R&R concludes that “the statute of limitations was tolled until January 21,
2023, when the time expired for Petitioner to appeal the denial of his second PCR
proceedings.” (Doc. 34 at 10). The R&R reasoned that “anything filed in the state courts
after January 21, 2023 did not continue to toll the statute of limitations” because they were
untimely filed and therefore were not “properly filed” for the purposes of statutory tolling
under the AEDPA. (Doc. 34 at 11, 12); 28 U.S.C. § 2244(d)(2).
Petitioner objects to the R&R’s conclusion “that the Petitioner’s filings in state court
after January 21, 2023 did not continue to toll the statute of limitations.” (Doc. 37 at 3).
However, the R&R correctly concludes that untimely state court filings do not toll the
statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state
court rejected petitioner’s [postconviction] petition as untimely, it was not ‘properly filed,’
and he is not entitled to statutory tolling under § 2244(d)(2).”).
Petitioner additionally argues that the Magistrate Judge erred in deferring to the state
court’s decision denying Petitioner’s requests for extensions of time. (Doc. 37 at 2; Doc.
34 at 7). Petitioner argues that this Court “has an independent duty to determine” whether
an extension of time should have been granted. (Doc. 37 at 2). Petitioner is mistaken. “[I]t
is not the province of a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Mendez v. Small, 298
F.3d 1154, 1158 (9th Cir. 2002) (“A state court has the last word on the interpretation of
state law.”); Robledo v. Ryan, No. CV 12-1281-PHX-JAT, 2013 WL 394703, at *2 (D.
Ariz. Jan. 31, 2013) (“To the extent Petitioner is arguing that the state court’s deadline
should have been extended, this Court has no power over the state court in its imposition
of its own deadlines.”). Petitioner’s filings were untimely under the rules governing the
state court proceedings, see Ariz. R. Crim. P. 32.16(a)(1), and the superior court declined
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to extend Petitioner’s time to file. “When a postconviction petition is untimely under state
law, that is the end of the matter for purposes of § 2244(d)(2).” Pace, 544 U.S. at 414
(cleaned up).
Accordingly, Petitioner’s objections on statutory tolling grounds are overruled. The
Court adopts the R&R’s calculation that the statute of limitations was tolled until January
21, 2023, and eventually expired 349 days later on January 6, 2024. (Doc. 34 at 10, 13).
D. Equitable Tolling
Next, in his objections, Petitioner argues he should be entitled to equitable tolling
of the statute of limitations. The AEDPA statute of limitations “is subject to equitable
tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). “[A] petitioner
is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Id. at 649 (cleaned up). The doctrine of equitable tolling is applied sparingly.
Scholar v. Pacific Bell, 963 F.2d 264, 267 (9th Cir. 1992); Irwin v. Dep’t of Veteran Affs.,
498 U.S. 89, 96 (1990).
To satisfy the first element, a litigant “must show that he has been reasonably
diligent in pursuing his rights not only while an impediment to filing caused by an
extraordinary circumstance existed, but before and after as well, up to the time of filing his
claim” in court. Smith v. Davis, 953 F.3d 582, 598–99 (9th Cir. 2020). “The standard for
reasonable diligence does not require an overzealous or extreme pursuit of any and every
avenue of relief. It requires the effort that a reasonable person might be expected to deliver
under his or her particular circumstances.” Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir.
2011). In determining whether reasonable diligence was exercised, courts “are guided by
‘decisions made in other similar cases . . . with awareness of the fact that specific
circumstances, often hard to predict in advance, could warrant special treatment in an
appropriate case.’” Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016) (quoting Holland, 560
U.S. at 650).
“[T]he second prong of the equitable tolling test is met only where the circumstances
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that caused a litigant’s delay are both extraordinary and beyond its control.” Menominee
Indian Tribe of Wisconsin v. U.S., 577 U.S. 250, 257 (2016). “[T]his rule does not impose
a rigid ‘impossibility’ standard on litigants,” particularly pro se prisoner litigants, but rather
requires courts to “decide the issue based on all the circumstances of the case before it.”
Smith, 953 F.3d at 600. “[T]he element of extraordinary circumstances incorporates a
causation requirement, which is to be assessed against the standard of reasonable
diligence.” Perez v. Reubart, 150 F.4th 1164, 1171 (9th Cir. 2025). “The only way for a
court to evaluate whether an extraordinary circumstance caused the untimely filing is to
examine and assess the facts of the case to determine whether a petitioner acting with
reasonable diligence could have filed his claim, despite the extraordinary circumstance,
before the limitations period expired.” Smith, 953 F.3d at 595.
The R&R concluded that Petitioner is not entitled to equitable tolling because, “even
assuming Petitioner has shown diligence, he has not shown the Court that an extraordinary
circumstance prevented the timely filing of his Petition.” (Doc. 34 at 15). In reaching this
conclusion, the R&R rejected Petitioner’s arguments that the prison’s COVID-19
protocols, the state court’s denial of an extension of time, and the limitations in the prison
mailing system were extraordinary circumstances that prevented him from timely filing his
habeas petition. (Doc. 34 at 15–18). Petitioner objects, arguing that he has alleged
extraordinary circumstances and that he is therefore entitled to equitable tolling. (Doc. 37
at 5–9).
At the outset, the Court notes that the AEDPA statute of limitations was statutorily
tolled until January 21, 2023, eventually expiring 349 days later on January 6, 2024.
Plaintiff first filed his federal habeas petition on December 13, 2024 (Doc. 1), 342 days
later. In order for his habeas petition to be timely, Petitioner would have to establish that
he is entitled to equitable tolling that lasted approximately 11 months and began sometime
between January 21, 2023 and January 6, 2024. Equitable tolling applicable prior to
January 21, 2023 is irrelevant because, as discussed, the statute of limitations was
statutorily tolled until January 21, 2023. Equitable tolling that began after the expiration of
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the statute of limitations (January 6, 2024) is also irrelevant.
First, the R&R correctly concludes that Petitioner has not demonstrated that the
prison’s COVID-19 protocols constitute an extraordinary circumstance. (Doc. 34 at 16).
“A mere invocation of the lockdowns imposed by the COVID-19 pandemic, without more,
is insufficient to . . . satisfy a petitioner’s burden to justify equitable tolling.” McKenzie v.
Warden, No. 5:22-cv-01508-AB (MAR), 2024 WL 1135676, at *4 (C.D. Cal. Feb. 2,
2024). “Instead, Petitioner must provide a specific explanation as to how COVID-19
hindered his ability to file his habeas petition throughout the relevant time period.” Gibson
v. Allison, No. CV 22-4267 SB (PVC), 2022 WL 17345919, at *3 (C.D. Cal. Oct. 27, 2022).
“Moreover, Petitioner’s acknowledged ability to file multiple motions in the superior court
cuts against his contention that COVID-19 prevented him from timely appealing his
conviction or filing a habeas petition prior to the AEDPA limitations period expiring.” Id.
(internal citation omitted).
Here, Petitioner’s numerous state court filings between January 2023 and May 2023,
and his filings during the peak of COVID-19 from 2020 to 2022, cut against his contention
that COVID-19 protocols prevented him from timely filing a habeas petition. See Gibson,
2022 WL 17345919, at *3; Gaston v. Palmer, 417 F.3d 1030, 1035 (9th Cir. 2005)
(affirming district court’s conclusion that “[b]ecause [petitioner] was capable of preparing
and filing state court petitions [during the limitations period], it appears that he was capable
of preparing and filing a [federal] petition during the [same time]”); (Doc. 34 at 17; Doc.
39 at 5). Given Petitioner’s demonstrated ability to file handwritten pleadings throughout
the COVID-19 pandemic, Petitioner cannot demonstrate that COVID-19 protocols caused
his untimely filing. Petitioner has not provided any explanation as to why the COVID-19
protocols did not prevent him from filing state court pleadings in 2023 but somehow
prevented him from timely filing a habeas petition. See Ramirez v. Yates, 571 F.3d 993,
998 (9th Cir. 2009) (“Ramirez offers no explanation of how or why his restricted library
access made it impossible for him to file a timely § 2254 petition but not . . . other
substantial legal filings. Accordingly, Ramirez is not entitled to equitable tolling [during
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that time period].”).
Petitioner argues that counsel, if appointed, would have been able to explain how
the prison’s COVID-19 protocols prevented his timely filing. (Doc. 37 at 5, 7).4 The Court
finds it difficult to fathom that counsel would have been able to know what challenges
Petitioner has faced due to COVID-19 protocols if Petitioner himself cannot identify any
such challenges that prevented him from timely filing a habeas petition.
Petitioner also argues that information sought in his motion to expand the record
would have explained how the pandemic prevented his timely filing. (Id.; see Doc. 30
(seeking production of the prison’s COVID-19 protocols)). But “courts should not allow
prisoners to use federal discovery for fishing expeditions to investigate mere speculation.”
Calderon v. U.S. Dist. Ct. for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996).
Petitioner has not identified any restrictions that personally impacted his ability to pursue
habeas relief in 2023; therefore, Petitioner will not be permitted to peruse the prison’s
COVID-19 protocols in search of something that may justify his untimely habeas petition.
Petitioner additionally argues that the Magistrate Judge misapplied Hennings v.
Cates, No. 22-55484, 2023 WL 8469341 (9th Cir. Dec. 7, 2023). (Doc. 37 at 8). In
Hennings, the petitioner argued that prison law-library restrictions “prevented him from
conducting necessary legal research to support his claims and to determine the deadline for
filing his federal habeas petition, thereby causing him to file his federal habeas petition
nearly a year after the deadline.” Id. at *1. The Hennings court explained that “[p]rior to
the library limitations, [the petitioner] had already developed four of his five habeas claims
and presented them in habeas petitions in state court,” his habeas petition advanced the
same factual allegations in his state petitions, and none of his petitions included case
citations or legal analysis. Id. Therefore, the Hennings court concluded that the petitioner
4 To the extent Petitioner challenges the Magistrate Judge’s denial of his request to appoint
counsel (Doc. 37 at 3), the Court has previously overruled these objections (Doc. 25).
Moreover, the Court reminds Petitioner that “there is no constitutional right to counsel on
habeas.” Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993); Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) (“Our cases establish that the right to appointed counsel extends to
the first appeal of right, and no further.”). The Court therefore overrules Petitioner’s
objections regarding denial of appointed counsel.
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“fail[ed] to show why his limited access to law-library materials during the COVID-19
pandemic made it impossible for him to file his federal habeas petition” on time. Id.
Relying on Hennings, the Magistrate Judge stated that Petitioner must “provide, at
the very least, basic information about the alleged extraordinary circumstance and the
causal connection.” (Doc. 34 at 16). Petitioner argues that he did provide basic information
by way of his supporting exhibits. (Doc. 37 at 8). However, Petitioner has not identified
any specific instances after January 21, 2023 where he attempted to work on or file his
habeas petition but was prevented from doing so.
To the extent Petitioner asserts inability to access the law library was an
extraordinary circumstance (see Doc. 30 at 3), Petitioner did not explain why he needed
access to the law library in connection with his habeas petition, how long the policy was in
place, or how often he was able to access the law library during that time. As discussed
above, Petitioner’s ability to file state court pleadings throughout the pandemic calls into
question the causal connection between COVID-19 restrictions and Plaintiff’s untimely
habeas petition. See Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010); Waldron-
Ramsey v. Pacholke, 556 F.3d 1008, 1013–14 (9th Cir. 2009). Further, to the extent
Petitioner argues that he thoroughly explained his reasons in his extension of time before
the superior court (see Doc. 32 at 6; Doc. 32-1 at 8), Petitioner filed his motion for
extension of time on January 17, 2023, before the statute of limitations started to run;
therefore, Petitioner’s arguments in that motion are irrelevant to the present equitable
tolling analysis for the time period beginning on January 21, 2023.
Next, the R&R correctly determined that the state court’s decision to deny Petitioner
an extension of time did not constitute an extraordinary circumstance. (Doc. 34 at 16).
Petitioner argues that the denial was an extraordinary circumstance because it had a
foreseeable prejudicial effect. (Doc. 37 at 8). However, whatever prejudicial effect the
denial may have had on Petitioner’s state court proceedings, no such prejudicial effect
exists with respect to Petitioner’s federal habeas proceedings. As the R&R correctly noted,
“nothing in the state courts’ orders was stopping [Petitioner] from filing a habeas petition
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in federal court.” (Doc. 34 at 17). To the extent Petitioner argues that he should be entitled
to equitable tolling because the state court erred in denying him an extension of time, as
previously discussed, “this Court has no power over the state court in its imposition of its
own deadlines.” Robledo, 2013 WL 394703, at *2. And to the extent Petitioner mistakenly
believed that the statute of limitations began to run on December 15, 2023, when the last
state court judgment was entered (see Doc. 9 at 22), a pro se petitioner’s “inability correctly
to calculate the limitations period is not an extraordinary circumstance warranting equitable
tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Nouan v. Ryan, 775 F.
App’x 870, 871 (9th Cir. 2019) (holding equitable tolling not applicable when the petitioner
“misunderstood the date from which the AEDPA limitations period began running); see
also Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro
se representation alone or procedural ignorance as an excuse for prolonged inattention
when a statute’s clear policy calls for promptness.”).
Petitioner argues that the Magistrate Judge misapplied Waldron-Ramsey v.
Pacholke, 556 F.3d 1008 (9th Cir. 2009). (Doc. 37 at 8). The Magistrate Judge cites
Waldron-Ramsey for the proposition that “an external force must cause the untimeliness,”
not “merely ‘oversight, miscalculation, or negligence on [the petitioner’s] part, all of which
would preclude the application of equitable tolling.’” Id. at 1011 (alteration in original)
(quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). The Magistrate Judge
found that Petitioner’s untimely state court filing was not caused by some external force,
but rather was caused by his own oversight, miscalculation, or negligence, for which
equitable tolling is not appropriate. Id. at 1011; (Doc. 34 at 16). The Magistrate Judge did
not misapply Waldron-Ramsey and did not err in concluding that the denial of an extension
of time in the state court proceedings is not an extraordinary circumstance preventing
Petitioner from pursuing habeas relief in federal court.
Finally, the R&R correctly concludes that Petitioner has not shown that the
limitations in the prison mailing system constitute an extraordinary circumstance. (Doc. 34
at 17–18). Petitioner objects to the Magistrate Judge’s reasoning “in its entirety.” (Doc. 37
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at 9). The Magistrate Judge found that “Petitioner has not provided the Court with enough
information to make any findings about how he was prevented from timely filing his habeas
petition.” (Doc. 34 at 17). Petitioner in his objection asks the Court to verify the cited cases
but does not otherwise provide any further explanation as to how the prison mailing system
constituted an extraordinary circumstance. (Doc. 37 at 9).
The Magistrate Judge did not misapply the law. “[T]he petitioner bears the burden
of showing that equitable tolling is appropriate.” Rasberry, 448 F.3d at 1153. A petitioner’s
“pro se status, on its own, is not enough to warrant equitable tolling.” Roy v. Lampert, 465
F.3d 964, 970 (9th Cir. 2006). The Ninth Circuit Court of Appeals in Chaffer v. Prosper
noted that circumstances attributable to “the vicissitudes of prison life” that may make it
more challenging to timely file a petition do not constitute extraordinary circumstances
unless the petitioner can show that those circumstances actually impedes his ability to
timely file. Examples of circumstances attributable to prison life include the petitioner’s
pro se status, the fact that the prison library was missing some reporter volumes, and that
the petitioner relied on helpers who were transferred or too busy to attend to his petitions.
Chaffer 592 F.3d at 1049.
As previously discussed, Petitioner’s ability to file his handwritten pleadings in state
court in 2023 seriously cuts against Petitioner’s assertion that the mailing system prevented
his timely filing. See Gibson, 2022 WL 17345919, at *3. Petitioner does not allege that he
had his habeas petition ready to file but that delays in the prison’s mailing system caused
his habeas petition to be nearly one year late. See Perez, 150 F.4th at 1176–77 (finding an
extraordinary circumstance existed when the petitioner thoroughly explained the steps she
took towards mailing in her petition, and how the prison procedures and mailing system
prevented her from timely doing so). Regarding Petitioner’s arguments that there were
delays in Petitioner receiving mail, the R&R correctly concludes that “a petitioner need not
receive any correspondence from the clerk of court to file a habeas petition.” (Id. at 18).
Thus, the R&R correctly concluded that the alleged limitations in the prison mailing system
did not constitute an extraordinary circumstance.
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Accordingly, Petitioner’s objections on equitable tolling grounds are overruled. The
Court adopts the R&R’s conclusion that equitable tolling is not applicable because
Petitioner has not shown that any extraordinary circumstance prevented him from filing his
habeas petition on time. (Doc. 34 at 18).
E. Evidentiary Hearing
Petitioner objects to the R&R’s finding that Petitioner is not entitled to an
evidentiary hearing on the issue of extraordinary circumstances. (Doc. 37 at 6; Doc. 34 at
15). “A habeas petitioner . . . should receive an evidentiary hearing when he makes ‘a
good-faith allegation that would, if true, entitle him to equitable tolling.” Roy, 465 F.3d at
969 (emphasis omitted) (quoting Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir. 2003)).
In Roy, the Ninth Circuit Court of Appeals determined that the petitioners
“presented sufficient evidence of their diligence to warrant an evidentiary hearing” on the
issue because they “filed their habeas petitions pro se, allege[d] specific efforts they
pursued in order to file habeas petitions, and because both filed their claims within a
reasonable period of time after . . . the extraordinary circumstances were removed.” Id. at
970. Here, Petitioner has not alleged any specific efforts he pursued in attempting to file
his habeas petition on time, and because Petitioner did not provide any indication as to
when the alleged extraordinary circumstances occurred during the relevant time period, the
Court has no way to determine whether Petitioner acted diligently in filing his habeas
petition before and after the alleged extraordinary circumstance occurred.
Moreover, as previously explained, Petitioner has not demonstrated that the alleged
extraordinary circumstances caused the untimely filing because Petitioner was capable of
preparing and filing state court filings within the statute of limitations period. See Harris
v. Ryan, No. CV 10-8185-PCT-SRB (MHB), 2011 WL 1135893, at *4 (D. Ariz. Jan. 20,
2011) (“Petitioner’s bare allegations of [extraordinary circumstances], without evidentiary
support, and without an explanation as to how the alleged [circumstances] prevented him
from acting diligently or filing a timely . . . habeas petition, do not warrant the granting of
Petitioner’s request for an evidentiary hearing, or the application of equitable tolling.”);
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Gaston, 417 F.3d at 1035; Gibson, 2022 WL 17345919, at *3. Accordingly, Petitioner is
not entitled to an evidentiary hearing on the issue of equitable tolling.
F. Certificate of Appealability
Before Petitioner can appeal this Court’s judgment, a certificate of appealability
(“COA”) must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1); Rule 11(a)
of the Rules Governing Section 2254 Cases. “The district court must issue or deny a
certification of appealability when it enters a final order adverse to the applicant.” Rule
11(a) of the Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a
COA may issue only when the petitioner “has made a substantial showing of the denial of
a constitutional right.” The court must indicate which specific issues satisfy this showing.
See 28 U.S.C. § 2253(c)(3). When the district court denies a habeas petition on procedural
grounds without reaching the merits of the underlying constitutional claim, a COA will
issue only if reasonable jurists could debate (1) whether the petition states a valid claim of
the denial of a constitutional right and (2) whether the court’s procedural ruling was correct.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon review of the record, the Court
concludes that a COA shall not issue because the resolution of the Petition is not debatable
among reasonable jurists. See Ramirez v. Thornell, CV-23-00114-TUC-JGZ, 2023 WL
8622630, at *1 (D. Ariz. Dec. 13, 2023).
V. OBJECTIONS REGARDING MOTION TO EXPAND RECORD
On July 16, 2025, Petitioner filed a Motion to Expand the Record (Doc. 30), arguing
that the materials he requests are relevant to show that he is entitled to equitable tolling.
(Doc. 34 at 2; Doc. 33). The Magistrate Judge granted the motion “to the extent Petitioner
asks the Court to consider the documents he has provided” and denied the motion “to the
extent Petitioner asks the Court to order Respondents to produce additional documents.”
(Doc. 34 at 19). The Magistrate Judge explained that the documents requested are not
relevant to the statute of limitations or equitable tolling issues, thus there is not good cause
to expand the record beyond the documents Petitioner provided. (Id. at 3). Petitioner timely
objects, arguing that the Magistrate Judge should have granted the motion to expand in its
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entirety. (Doc. 37 at 9; Docs. 35, 36).
A. Standard of Review
Federal Rule of Civil Procedure 72(a) provides that when a magistrate judge issues
a written order deciding a pretrial, non-dispositive matter, “[a] party may serve and file
objections to the order.” Fed. R. Civ. P. 72(a). “The district judge in the case must consider
timely objections and modify or set aside any part of the order that is clearly erroneous or
is contrary to law.” Id.; 28 U.S.C. § 636(b)(1)(A). “The clearly erroneous standard applies
to the magistrate judge’s factual findings while the contrary to law standard applies to the
magistrate judge’s legal conclusions, which are reviewed de novo.” BeJaran v. Corizon
Inc., No. CV17-00754-PHX-DJH (JFM), 2018 WL 9619357, at *1 (D. Ariz. Feb. 23, 2018)
(internal quotes and citation omitted).
Under a clear-error standard of review, the Court “may not simply substitute its
judgment for that of the deciding court.” Grimes v. City & County of San Francisco, 951
F.2d 236, 241 (9th Cir. 1991) (citations omitted). Instead, the Court must have a “definite
and firm conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S.
234, 242 (2001) (citation omitted). Factual findings are not clearly erroneous if they “are
plausible in light of the record viewed in its entirety.” Husain v. Olympic Airways, 316
F.3d 829, 835 (9th Cir. 2002).
B. Analysis
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997);
Fed. R. Civ. P. 26(a)(1)(B)(iii) (exempting habeas proceedings from initial discovery
disclosure). Discovery in habeas proceedings is governed by Rule 6(a) of the Rules
Governing § 2254, which provides in relevant part: “A judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may
limit the extent of discovery.”
“Whether a petitioner has established ‘good cause’ for discovery requires a habeas
court to determine the essential elements of the petitioner’s substantive claim and evaluate
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whether ‘specific allegations before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to
relief.’” Williams v. Schriro, 423 F. Supp. 2d 994, 1003 (D. Ariz. 2006) (quoting Bracy,
520 U.S. at 908–09).
Petitioner asserts that the documents he requested would entitle him to relief but
provides no further argument or explanation. (Doc. 37 at 9). As discussed above, Petitioner
has not sufficiently explained how any alleged extraordinary circumstance caused his filing
to be untimely. Particularly, Petitioner has not alleged any extraordinary circumstance that
would have prevented the timely filing of his federal habeas petition but not his state court
filings during the limitations period in 2023. “[C]ourts should not allow prisoners to use
federal discovery for fishing expeditions to investigate mere speculation.” Calderon v. U.S.
Dist. Ct. for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996). Petitioner has
not presented facts that would entitle him to equitable tolling, and therefore the Court will
not allow Petitioner to use discovery in search of something that may justify his untimely
habeas petition. The Magistrate Judge did not err in denying in part Petitioner’s Motion to
Expand the Record (Doc. 30).
VI. CONCLUSION
Accordingly,
IT IS ORDERED that Petitioner’s Motion for Reconsideration (Doc. 44) is
DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Waive Arguments
(Doc.45) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Ruling and Status
(Doc. 46) is DENIED as moot.
IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 34) is
ACCEPTED.
IT IS FURTHER ORDERED Petitioner’s Petition for Writ of Habeas Corpus, as
amended, is DENIED and DISMISSED WITH PREJUDICE.
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IT IS FURTHER ORDERED Petitioner’s request for a Certificate of
Appealability is DENIED and a Certificate of Appealability shall not issue.
IT IS FINALLY ORDERED directing the Clerk of the Court to enter judgment
accordingly and terminate this case.
Dated this 26th day of May, 2026.
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