Hill #066344 v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Michael Lynn Hill,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV 25–00200–PHX–SHD (ESW)
REPORT AND
RECOMMENDATION
TO THE 	HONORABLE SHARAD 	H. DESAI, 	UNITED STATES DISTRICT
JUDGE:
Pending before the Court is Michael Lynn Hill’s (“Petitioner”) Amended “Petition
under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Amended Petition”) (Doc. 7).
For the reasons explained herein, the undersigned recommends that the Court dismiss the
Amended Petition (Doc. 7) as untimely.
I. BACKGROUND
On April 11, 2018, a jury sitting in the Superior Court of Arizona in and for
Maricopa County convicted Petitioner of one count of possession or use of dangerous
drugs and one count of possession or use of marijuana. (Doc. 12-1 at 281.) On June 18,
2018, the trial court sentenced Petitioner to concurrent, minimum prison terms of 8 years
for count 1 and 3 years for count 2, adding 2 years to each count because the jury found
that Petitioner committed both offenses while on supervised release for a previous felony.
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(Id. at 383.)
On June 11, 2019, the Arizona Court of Appeals affirmed Petitioner’s convictions
and sentences. (Id. at 382-84.) Petitioner did not petition the Arizona Supreme Court for
further review. The Arizona Court of Appeals issued its mandate on July 25, 2019. (Id.
at 386.)
On July 1, 2019, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id.
at 393-94.) The trial court appointed counsel, who could not find any colorable claims to
raise. (Id. at 399.) Petitioner did not file a pro se PCR Petition by the deadline set by the
trial court. 	On March 14, 2023, the trial court dismissed the PCR proceeding. 	(Id. at
432.) Petitioner did not seek further review by the Arizona Court of Appeals.
On September 24, 2024, Petitioner filed a pro se PCR Petition. 	(Id. at 434-563.)
On October 10, 2024, the trial court dismissed the PCR Petition as untimely. (Id. at 565.)
Petitioner did not seek further review by the Arizona Court of Appeals.
Petitioner initiated this federal habeas proceeding on January 8, 2025.1 (Doc. 1.)
On July 1, 2025, Petitioner filed the Amended Petition (Doc. 7), which raises three
grounds for relief. On October 15, 2025, Respondents filed a Limited Answer (Doc. 12)
arguing 	that 	the 	Amended 	Petition 	is 	untimely 	and 	that 	Petitioner’s 	claims 	are
procedurally barred. Petitioner did not file a Reply and the time to do so has passed. For
the reasons explained below, the undersigned finds that this proceeding is untimely.
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
110 Stat. 1214, a state prisoner must file his or her federal habeas petition within one year
of the latest of:
A. The date on which the judgment became final by the
1 The original Petition (Doc. 1) was docketed by the Clerk of Court on January 22,
2025. The Petition contains a certificate of service indicating that Petitioner placed the
Petition in the prison mailing system on January 8, 2025. (Doc. 1 at 11). Pursuant to the
prison mailbox rule, the undersigned has used January 8, 2025 as the Petition’s filing
date. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered
to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
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conclusion of direct review or the expiration of the time for
seeking such review;
B. The date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of 	the 	United 	States 	is 	removed, 	if 	the 	petitioner 	was
prevented from filing by the State action;
C. 	The 	date 	on 	which 	the 	right 	asserted 	was 	initially
recognized by the United States Supreme Court, if that right
was newly recognized by the Court and made retroactively
applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim
presented could have been discovered through the exercise of
due diligence.
28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir.
2007). 	The one-year limitations period, however, does not necessarily run for 365
consecutive days as it is subject to tolling. 	Under AEDPA’s statutory tolling provision,
the limitations period is tolled during the “time during which a properly filed application
for State post-conviction relief or other collateral review with respect to the pertinent
judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v.
Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state
prisoner is exhausting his or her claims in state court and state post-conviction remedies
are pending) (citation omitted).
AEDPA’s statute of limitations is also subject to equitable tolling. 	Holland v.
Florida, 560 U.S. 631, 645 (2010) (“Now, like all 11 Courts of Appeals that have
considered the question, we hold that § 2244(d) is subject to equitable tolling in
appropriate 	cases.”). 	Yet 	equitable 	tolling 	is 	applicable 	only 	“if 	extraordinary
circumstances beyond a prisoner’s control make it impossible to file a petition on time.”
Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th
Cir. 2014). 	A petitioner must show (i) that he or she has been pursuing his rights
diligently and (ii) some extraordinary circumstances stood in his or her way. 	Pace v.
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DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d
1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. This Proceeding is Untimely
In this case, the relevant triggering event for purposes of AEDPA’s statute of
limitations is the date on which Petitioner’s 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).
The Arizona Court of Appeals affirmed Petitioner’s convictions and sentences on
June 11, 2019. 	(Doc. 12-1 at 382.) 	As Petitioner did not move the Arizona Court of
Appeals for reconsideration, Petitioner had until July 11, 2019 to petition the Arizona
Supreme Court for review of the decision. 	See Ariz. R. Crim. P. 31.21(b)(2)(A)
(providing that a petition for review must be filed within 30 days, unless a motion for
reconsideration is filed). Petitioner did not file a Petition for Review in the Arizona
Supreme Court. 	Accordingly, Petitioner’s convictions and sentences became final on
July 11, 2019, when the time to file a petition for review expired. The one-year statute of
limitations began running on July 12, 2019. 	See Gonzalez v. Thaler, 132 S.Ct. 641, 654
(2012) (AEDPA’s statute of limitations commences upon the expiration of the time for
seeking review of petitioner’s judgment in a state’s highest court); Patterson v. Stewart,
251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which Patterson’s petition
was denied by the Supreme Court, as required by Rule 6(a)’s ‘anniversary method,’ the
one-year grace period began to run on June 20, 1997 and expired one year later, on June
19, 1998 	. . . .”). 	Consequently, unless statutory or equitable tolling applies,
Petitioner’s one-year deadline to file a habeas petition expired on July 11, 2020,
rendering this proceeding untimely.
1. Statutory Tolling
Statutory tolling does not apply to collateral review petitions that are not “properly
filed.” Pace v. DiGuiglielmo, 544 U.S. 408 (2005); 28 U.S.C. § 2244(d)(2). A collateral
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review petition is “properly filed” when its delivery and acceptance comply with state
rules governing filings. 	Artuz v. Bennett, 531 U.S. 4, 8 (2000); Orpiada v. McDaniel,
750 F.3d 1086, 1089 (9th Cir. 2014) (court looked to Nevada state filing requirements in
determining whether habeas petitioner’s PCR petition was a “properly filed” application
that is eligible for tolling). 	This includes compliance with filing deadlines. 	Hence, an
untimely state collateral review petition is not “properly filed.” 	Pace, 544 U.S. at 417
(holding that “time limits, no matter their form, are ‘filing’ conditions,” and that a state
PCR petition is therefore not “properly filed” if it was rejected by the state court as
untimely).
If 	the 	collateral 	review 	petition 	was 	“properly 	filed,” 	then 	the 	Court 	must
determine the dates it was “pending.” In Arizona, a PCR petition becomes “pending” as
soon as the notice of PCR is filed. 	Isley v. Ariz. Dep’t of Corrections, 383 F.3d 1054,
1055-56 (9th Cir. 2004) (“The language and structure of the Arizona postconviction rules
demonstrate that the proceedings begin with the filing of the Notice.”). 	It remains
“pending” until it “has achieved final resolution through the State’s post-conviction
procedures.” 	Carey v. Saffold, 536 U.S. 214, 220 (2002). 	This includes “[t]he time
between (1) a lower state court’s adverse determination, and (2) the prisoner’s filing of a
notice of appeal, provided that the filing of the notice of appeal is timely under state
law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing Carey, 536 U.S. 214).
Here, on July 1, 2019, before Petitioner’s conviction became final, Petitioner
initiated a PCR proceeding. (Doc. 12-1 at 393.) The limitations period therefore was
immediately tolled when Petitioner’s conviction became final on July 11, 2019. 	On
March 13, 2023, the trial court dismissed the PCR proceeding. 	(Id. at 432.) 	Because
Petitioner did not petition the Arizona Court of Appeals for review, the AEDPA’s
limitations period commenced on March 14, 2023. 	See Gildon v. Bowen, 384 F.3d 883,
886 (7th Cir. 2004) (rejecting a habeas petitioner’s argument that statutory tolling applied
during the period in time in which he could have filed a petition for certiorari review in
the U.S. Supreme Court regarding state court’s denial of post-conviction relief; stating
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that “[b]ecause [petitioner] never filed a petition for certiorari review in the Supreme
Court, his potential certiorari petition was never ‘properly filed.’”) (quoting Gutierrez v.
Schomig, 233 F.3d 490, 492 (7th Cir. 2000)); Gold v. Hennessy, CR 04-1252-PHX-JAT,
2006 WL 1516009, at *4 (D. Ariz. May 30, 2006) (“It follows that if a petition is not
timely filed, then the interval is not tolled. . . . Thus, an appeal that is never filed cannot
be considered timely; Petitioner cannot reap the benefit of AEDPA’s tolling mechanism
without actually filing her petition for review of the PCR denial.”). 	Petitioner had until
March 13, 2024 to file his federal habeas petition.
Petitioner initiated a second PCR proceeding on September 24, 2024. 	(Doc. 12-1
at 434.) 	Once the statute of limitations has expired, subsequent collateral review
petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001);
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Therefore, because Petitioner
initiated his second PCR proceeding after the limitations period had expired on March 13,
2024, 	the 	second 	PCR 	proceeding 	does 	not 	have 	any 	statutory 	tolling 	effect.
Accordingly, this proceeding is untimely unless equitable tolling applies.
2. Equitable Tolling is Unavailable
Regarding equitable tolling, Petitioner has the burden to show that extraordinary
circumstances beyond Petitioner’s control made it impossible for him to file a timely
federal petition. Roy, 465 F.3d at 969; Gibbs, 767 F.3d at 888 n.8. A petitioner’s pro se
status, on its own, is not enough to warrant equitable tolling. See, e.g., Johnson v. United
States, 544 U.S. 295, 311 (2005). 	In addition, a petitioner’s miscalculation of when the
limitations period expired does not constitute an “extraordinary circumstance” warranting
equitable tolling. 	See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see
also Alexander v. Schriro, 312 F. App’x 972, 976 (9th Cir. 2009) (“Ultimately [the
petitioner] 	made 	an 	incorrect 	interpretation 	of 	the 	statute 	and 	miscalculated 	the
limitations period. 	This does not amount to an ‘extraordinary circumstance’ warranting
equitable tolling.”).
There 	is 	no 	indication 	in 	the 	record 	that 	the 	circumstances 	of 	Petitioner’s
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incarceration made it “impossible” for Petitioner to timely file a federal habeas petition.
See Norwood v. Lockyer, 390 F. App’x 762, 763 (9th Cir. 2010) (“limited law library
access, 	being 	moved 	to 	different 	cells, 	temporary 	lockdowns” 	“do 	not 	show
circumstances that are out of the ordinary for prison life or that would have made it
‘impossible’ to file on time”); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010)
(finding that equitable tolling did not apply where there was “no indication in the record
that [circumstances] made it ‘impossible’ for [prisoner] to file on time”); Wilson v.
Bennett, 188 F. Supp. 2d 347, 353-54 (S.D.N.Y. 2002) (allegations that the petitioner
lacked legal knowledge and had to rely on other prisoners for legal advice and in
preparing his papers “cannot justify equitable tolling” as such circumstances are not
“extraordinary”); Rasberry, 448 F.3d at 1154 (9th Cir. 2006) (“[A] pro se petitioner’s
lack of legal sophistication is not, by itself, an extraordinary circumstance warranting
equitable tolling.”).
“[T]he threshold necessary to trigger equitable tolling under AEDPA is very high,
lest the exceptions swallow the rule.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)
(internal quotation marks and alterations omitted). 	Petitioner has failed to show the
existence of “extraordinary circumstances” that were the proximate cause of the untimely
filing of this proceeding. 	See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for
equitable tolling to apply, a “prisoner must show that the ‘extraordinary circumstances’
were the cause of his untimeliness”). The undersigned concludes that equitable tolling is
unavailable. 	Petitioner initiated this federal habeas proceeding on January 8, 2025,
approximately ten months after the AEDPA deadline expired. 	Accordingly, this federal
habeas proceeding is untimely.
B. The Actual Innocence/Schlup Gateway Does Not Apply to Excuse the
Untimeliness of this Proceeding
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court
announced an equitable exception to AEDPA’s statute of limitations. The Court held that
the “actual innocence gateway” to federal habeas review that was applied to procedural
bars in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518 (2006)
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extends to petitions that are time-barred under AEDPA. The “actual innocence gateway”
is also referred to as the “Schlup gateway” or the “miscarriage of justice exception.”
Under Schlup, a petitioner seeking federal habeas review under the miscarriage of
justice exception must establish his or her factual innocence of the crime and not mere
legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v.
Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). 	“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.” Schlup, 513 U.S. at 324; see also Lee v. Lampert, 653 F.3d 929, 945
(9th Cir. 2011); McQuiggin, 133 S.Ct. at 1927 (explaining the significance of an
“[u]nexplained delay in presenting new evidence”). 	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.” McQuiggin, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327).
Because of “the rarity of such evidence, in virtually every case, the allegation of actual
innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir.
2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
To the extent Petitioner asserts the actual innocence/Schlup gateway, Petitioner
has not presented any new reliable evidence establishing that he is factually innocent of
his convictions. 	Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (“In order to present
otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must
produce sufficient proof of his actual innocence to bring him “within the ‘narrow class of
cases . . . implicating a fundamental miscarriage of justice.’”) (citations omitted);
Shumway, 223 F.3d at 990 (“[A] claim of actual innocence must be based on reliable
evidence not presented at trial.”); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013)
(“[W]e have denied access to the Schlup gateway where a petitioner’s evidence of
innocence 	was 	merely 	cumulative 	or 	speculative 	or 	was 	insufficient 	to 	overcome
otherwise convincing proof of guilt.”). Because Petitioner has failed to satisfy his burden
of 	producing 	“new 	reliable 	evidence” 	of 	his 	actual 	innocence, 	the 	undersigned
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recommends 	that 	the 	Court 	find 	that 	Petitioner 	cannot 	pass 	through 	the 	actual
innocence/Schlup gateway to excuse the untimeliness of this federal habeas proceeding.
See Smith v. Hall, 466 F. App’x 608, 609 (9th Cir. 2012) (explaining that to pass through
the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming
forward with ‘new reliable evidence’”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir.
2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new
reliable evidence . . . that was not presented at trial.’”).
IV. CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that the Amended Petition (Doc. 7) be DISMISSED
WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave
to proceed in forma pauperis on appeal be denied because dismissal of the Amended
Petition is justified by a plain procedural bar and jurists of reason would not find the
procedural ruling debatable.
This Report and Recommendation is not an order that is immediately appealable to
the Ninth Circuit Court of Appeals. 	Any notice of appeal pursuant to Fed. R. App. P.
4(a)(1) should not be filed until entry of the District Court’s judgment. The parties shall
have 	fourteen 	days 	from 	the 	date 	of 	service 	of 	a 	copy 	of 	this 	Report 	and
Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. 	Thereafter, the parties have fourteen days
within which to file a response to the objections. Failure to file timely 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 file timely
objections to any factual determinations of the Magistrate Judge may be considered a
waiver of a party’s right to appellate review of the findings of fact in an order or
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judgment entered pursuant to the Magistrate Judge’s recommendation. 	See Fed. R. Civ.
P. 72.
Dated this 20th day of November, 2025.
Honorable Eileen S. Willett
United States Magistrate Judge
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