2:25-cv-00200•Hill #066344 v. Thornell et al
Full text
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 1 of 10
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (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.”). Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 2 of 10
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 3 of 10
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 4 of 10
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 5 of 10
- 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 6 of 10
- 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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) Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 7 of 10
- 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 8 of 10
- 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 9 of 10
- 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00200-SHD Document 13 Filed 11/20/25 Page 10 of 10
Wondering how this text applies to your situation?
Free consultation, no commitment
Describe your situation. Our team will contact you by email about your consultation.
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.