McCormack v. Thornell

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Adam McCormack,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-08027-PCT-SPL (MTM)
REPORT AND RECOMMENDATION
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT
JUDGE:
On February 6, 2025, Petitioner Adam McCormack, who is confined in the Arizona
State Prison Complex-Yuma and represented by counsel, filed an Amended Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and Memorandum in support thereof.
(Docs. 7, 2.)
I. SUMMARY OF CONCLUSION
Petitioner was convicted in Apache County Superior Court, case #CR 2019-00134,
of one count of attempted second-degree murder, two counts of aggravated assault, one
count of leaving the scene of an injury, and one count of disorderly conduct. Petitioner was
sentenced to a combination of concurrent and consecutive sentences totaling 48 years. In
his Amended Petition and Memorandum, Petitioner raises four grounds 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
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recommend that the Amended Petition for Writ of Habeas Corpus be denied and dismissed
with prejudice.
II. BACKGROUND
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as
true:1
On August 9, 2018, the victim, G.M., walked the dirt road leading to
his neighbor’s home. G.M. heard a car approaching at high speed. The car
driver would later be identified as Breanna Mettie, with McCormack and
William Hinton riding as passengers. G.M. pointed his flashlight at the car
and jumped to the side of the road. The car narrowly missed G.M. and came
to a stop.
G.M. approached the car, and an argument ensued. McCormack and
Hinton got out of the car, and Hinton began swinging at G.M. Shortly
after, McCormack pointed a gun wrapped in a green cloth at G.M.’s
face. G.M. backed away and ducked into the trees lining the
road. McCormack and Hinton got back in the car and sped away. G.M.
contacted police officers that night but could not identify his attackers. Police
officers, however, located a green cloth near the attack location.
The next day, G.M. saw Mettie’s car while driving his truck home
from the store. G.M. followed the car until losing it on a side road. Moments
later, a truck driven by McCormack swerved past G.M. and stopped
suddenly in front of him. McCormack reversed into G.M.’s truck, pushing
him back several feet. McCormack pulled forward and reversed a second
time, hitting G.M.’s truck and rendering it inoperable.
When McCormack pulled forward and reversed a third time, G.M.
took a shotgun from his passenger seat and attempted to shoot
out McCormack’s tires. Undeterred, McCormack collided into G.M.’s
truck. McCormack pulled farther ahead and reversed at high speed, hitting
G.M.’s truck a fourth time. Believing he might “die inside that metal coffin,”
G.M. pretended to be dead and lie motionless. Shortly after the fourth
collision, McCormack drove away and eventually fled the area with Mettie’s
assistance.
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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G.M. managed to free himself from his truck and contacted police
officers. When the officers arrived, they saw tire tracks and damage to G.M.’s
truck consistent with the attack. At least one witness living nearby told police
she saw McCormack’s truck drive toward G.M.’s truck and heard multiple
collisions. The witness stated she feared G.M. might be deceased. Police
officers located McCormack’s truck and observed damage from the
collisions, including a paint transfer from G.M.’s truck.
State v. McCormack, 2021 WL 710190, at *1-2 (Ariz. Ct. App. Feb. 23, 2021).
The State charged Petitioner with one count of attempted second-degree murder,
two counts of aggravated assault, one count of leaving the scene of an injury accident, and
one count of disorderly conduct. Id. After a three-day trial, the jury convicted Petitioner on
all counts. Id. On October 29, 2019, the court sentenced Petitioner as noted above. (Doc.
11-1 at 13; Exh. C.)
B. Direct Appeal
Petitioner timely appealed his convictions and sentences, arguing the superior court
erred in denying his Rule 20 motion for judgment of acquittal for attempted second-degree
murder, and by misstating the relevant elements of the offense in delivering its ruling.
Petitioner further argued the superior court erred in failing to adequately instruct the jury
about the requisite mental state for attempted second-degree murder. McCormack, 2021
WL 710190, at *2-3. On February 23, 2021, the Arizona Court of Appeals affirmed
Petitioner’s convictions and sentences. Id. The record reflects that the Arizona Supreme
Court denied review on January 4, 2022.
C. Post-Conviction Relief Proceedings
On January 13, 2020, Petitioner filed a timely notice of post-conviction relief in the
trial court. (Doc. 11-1 at 120; Exh. J.) The record reflects that appointed counsel filed a
petition for post-conviction relief on November 1, 2022. (Doc. 11-2 at 3; Exh. K.) On
January 26, 2023, the trial court dismissed Petitioner’s PCR petition. (Doc. 11-3 at 24; Exh.
N.) The Arizona Court of Appeals summarily denied Petitioner’s petition for review of the
trial court’s decision on May 25, 2023. State v. McCormack, 2023 WL 3638046, at *1
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(Ariz. Ct. App. May 25, 2023). The Arizona Supreme Court denied Petitioner’s petition
for review on January 9, 2024. (Doc. 11-3 at 45; Exh. Q.)
III. PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS
In his Amended Petition and Memorandum, Petitioner raises four grounds for relief.
(Docs. 7, 2.) On February 28, 2025, the Court summarized Petitioner’s claims as follows:
(1) “This Court can review McCormack’s claim of ineffective assistance of trial
counsel because he can demonstrate cause for the default and actual prejudice to excuse
the default, or a miscarriage of justice”;
(2) “The state appellate court’s decisions require relief under Section 2254(d)
because the state court decision was both contrary to federal law, and also was an
unreasonable interpretation of federal law”;
(3) “McCormack’s trial counsel was ineffective for failing to object to the erroneous
jury instruction for attempted second-degree murder”; and
(4) “The right to an impartial judge is paramount in federal law, and thus the Arizona
State court’s interpretation of federal law was applied in an objectively unreasonable
manner, and was contrary to federal law.”
(Doc. 8.)
Respondents have filed an Answer. (Doc. 11.) Petitioner has not filed a reply.
IV. STATUTE OF LIMITATIONS
A. Time Calculation
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace
v. DiGuglielmo, 544 U.S. 408, 410 (2005); see 28 U.S.C. § 2244(d)(1). In most cases, the
limitations period runs from the date “the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.”2 28 U.S.C. §
2 The limitations period may also be triggered by other events not relevant here. See 28
U.S.C. §§ 2244(d)(1)(B) (state-created impediment to filing), (d)(1)(C) (newly recognized
constitutional right), (d)(1)(D) (when the basis for a claim became apparent).
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2244(d)(1)(A); see Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Further, “‘[A] properly filed application for State post-conviction or other collateral
review’ tolls AEDPA’s statute of limitations for the pendency of the state court
proceedings.” Curiel v. Miller, 830 F.3d 864, 868 (9th Cir. 2016) (quoting 28 U.S.C. §
2244(d)(2)). To toll the statute, the application must have been “‘properly filed,’” meaning
that it complied with “the applicable laws and rules governing filings,” including “time
limits upon its delivery, the court and office in which it must be lodged, and the requisite
filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Here, the Court finds that Petitioner’s habeas petition is untimely. After trial and
sentencing, Petitioner appealed his convictions and sentences to the Arizona Court of
Appeals. The Court of Appeals affirmed Petitioner’s convictions and sentences on
February 23, 2021, and the Arizona Supreme Court denied review on January 4, 2022.
Petitioner’s convictions became final 90 days later – on April 4, 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 January 13, 2020. Petitioner’s
PCR proceedings remained pending until January 9, 2024, when the Arizona Supreme
Court denied Petitioner’s petition for review. The statute of limitations began running the
next day and expired one year later – on January 10, 2025. Petitioner did not initiate his
habeas proceedings until February 6, 2025. Accordingly, absent equitable tolling, his
Amended Petition is untimely.
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B. Equitable Tolling
“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
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, 620 F.3d at 959. “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).
Petitioner did not file a reply to Respondents’ Answer and does not expressly argue
that some “extraordinary circumstance” prevented him from filing on time, or that he has
diligently pursued his rights. Furthermore, to the extent Petitioner suggests that the
AEDPA’s limitations period began to run from the Court of Appeals’ mandate (Doc. 7 at
10), the Court is not persuaded. See Melville v. Shinn, 68 F.4th 1154, 1156 (9th Cir. 2023)
(specifying that the petitioner’s PCR application “ceased to be pending when the time for
him to seek further relief in the state courts expired, which was not precisely when the
Arizona Court of Appeals issued its mandate”); see also Puleo v. Shinn, CV-19-05402-
PHX-SPL-CDB, 2020 WL 6083463, at *4 (D. Ariz. Sept. 1, 2020) (citing Hemmerle v.
Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007)) (“If the intermediate appellate court’s
decision denying [post-conviction] relief is appealed to the Arizona Supreme Court, it is
the date of the Arizona Supreme Court’s decision, not the issuance of the Court of Appeals’
mandate, that concludes the post-conviction process and determines when the tolling
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period has terminated.”). Thus, Petitioner has failed to meet his burden of demonstrating
extraordinary circumstances or that he has diligently pursued his rights justifying equitable
tolling.
C. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. §
2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas
petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S.
383, 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 provides no argument and fails to present any new, reliable
evidence of actual innocence required to pass through the Schlup gateway. 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.’”). Accordingly, having failed to present new, reliable
evidence of actual innocence, 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 Amended Petition for
Writ of Habeas Corpus is untimely.
IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 and Memorandum in support thereof (Docs.
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7, 2) 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 Amended
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
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 29th day of October, 2025.
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