Decker v. Shinn

• Decision Date: 11 March 2022
• Docket Number: CV-21-00761-PHX-DWL (MTM)
• Court: U.S. District Court — District of Arizona
• Parties: Curtis Dewayne Decker, Petitioner, v. David Shinn, et al., Respondents.

Curtis Dewayne Decker, Petitioner, v. David Shinn, et al., Respondents.

No. CV-21-00761-PHX-DWL (MTM)

United States District Court, D. Arizona

March 11, 2022

REPORT & RECOMMENDATION AND ORDER

Honorable Michael T. Morrissey, United States Magistrate Judge

TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:

Petitioner Curtis Dewayne Decker has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc 1).^[1]

I. SUMMARY OF CONCLUSION

Petitioner was convicted of first-degree murder and first-degree burglary. Petitioner filed a habeas petition asserting five grounds for relief. Because the petition is untimely by over three years and not entitled to equitable tolling, the Court recommends it be denied and dismissed with prejudice.

II. BACKGROUND

A. Conviction & Sentencing.

The Arizona Court of Appeals summarized the facts of the case as follows:^[2]

The victim lived with his girlfriend and her mother, Judy, in Judy's apartment. Decker was friends with Judy and visited her regularly. One day, Decker and the victim fought in Judy's apartment. After pushing each other and wrestling, the victim drew a knife and cut Decker's face. Decker told the victim to step outside to “finish this, ” but the victim stayed inside and Decker rode away on a bicycle.

About 20 minutes later, Decker returned with two or three people in a car. They all got out of the car, and Decker walked to Judy's front door. The apartment manager-looking on from her own apartment-saw Judy standing beside the open door as Decker stood in the doorway, drew a gun, and quickly fired three shots. Decker then laughed, put the gun in his pocket, and left in the car. The victim, who was inside Judy's apartment, died from two close-range gunshot wounds to the chest. Judy later told the victim's daughter that she had seen Decker “in the doorway” and that Decker had shot the victim.

After the apartment manager identified Decker from a photographic lineup, Decker was arrested and charged with first-degree murder and first-degree burglary. After an initial mistrial due to a hung jury, Decker was convicted as charged, with the jury unanimously finding both premeditated and felony murder. Decker was sentenced to concurrent terms of life in prison with the possibility of release after 25 years for the murder conviction and 10.5 years for the burglary conviction, and he timely appealed.

State v. Decker, 239 Ariz. 29, 30 (App. 2016).^[3]

B. Direct Appeal.

In his opening brief on appeal, Petitioner claimed the trial court's denial of his Batson^[4] challenges violated his constitutional rights to due process, equal protection, and a fair trial and that substantial evidence did not support his conviction for first-degree burglary. (Doc. 8-1, Ex. G, at 25-51). In a supplemental brief, Petitioner claimed the trial court erred by overruling his objection to the State's statement in closing argument that a bullet entering a residence constitutes “entry” for purposes of establishing first-degree burglary. (Doc. 8-1, Ex. J, at 82-95). On January 7, 2016, the Arizona Court of Appeals affirmed the convictions and sentences. (Doc. 8-1, Ex. L, at 120-28). On August 30, 2016, the Arizona Supreme Court denied review. (Doc. 8-2, Ex. O, at 2). On September 29, 2016, the Arizona Court of Appeals issued its mandate. (Doc. 8-2, Ex. P, at 4).

C. Post-Conviction Relief (“PCR”).

1. Initial Proceeding.

On April 21, 2017, Petitioner filed a delayed notice of PCR claiming ineffective assistance of counsel. (Doc. 8-2, Ex. Q, at 15-18). He asserted he was “without fault” for the untimeliness because his “comprehension is limited as determined by [an] attached letter.” (Id. at 17). On June 1, 2017, the PCR court dismissed the proceeding as “untimely by more than five months” and noted Petitioner had not provided the letter referenced in the notice. (Doc. 8-2, Ex. R, at 20-22). On July 5, 2017, Petitioner filed a letter from George DeLong, a psychologist who examined Petitioner on August 22, 2012 and found him competent for purposes of plea bargaining, and a letter from an individual named Cory Brookins, who stated Petitioner “will not be able to read and comprehend court materials without specialized assistance.” (Doc. 8-2, Ex. S, at 24-26).^[5] Nearly two years later, on June 5, 2019, Petitioner filed a “Motion for Status.” (Doc. 8-2, Ex. T, at 29-31). On June 15, 2019, the PCR court issued a minute entry stating it had reviewed the motion and letters filed on July 5, 2017 and advising Petitioner that his PCR proceeding had been dismissed on June 1, 2017. (Doc. 8-2, Ex. U, at 33).

2. Successive Proceedings.

On July 31, 2019, Petitioner filed a second notice of PCR and a PCR petition. (Doc. 8-2, Ex. V, at 35-76). Petitioner asserted the previous notice had been prepared by “the unit paralegal” and that he is “mentally disable[d] with an IQ below 60” which the sentencing judge “recognized.”^[6] (Id. at 35, 37). Petitioner claimed the trial court improperly instructed the jury by: “omit[ting] the essential element of intent” from the instruction on first-degree burglary, “provid[ing] an instruction that allowed the jury to find [him] guilty of premeditated first-degree murder for intending to cause serious physical injury or any injury, ” and providing an instruction that impermissibly “shifted the burden of proof to [him].” (Id. at 43). Petitioner further claimed his trial and appellate counsel were ineffective and that these claims were not precluded. (Id. at 37, 43). On August 19, 2019, the PCR court dismissed the petition. (Doc. 8-2, Ex. W, at 78-79). On October 1, 2020, the Arizona Court of Appeals granted review but denied relief. (Doc. 8-2, Ex. Y, at 152-57). On March 4, 2021, the Arizona Supreme Court denied review. (Doc. 8-2, Ex. Z, at 159).

On October 5, 2021, Petitioner filed a third PCR notice and petition. (Doc. 14-1, Ex. Q, at 38-61). Petitioner states this petition is “still pending.” (Doc. 14 at 9).

III.PETITION FOR A WRIT OF HABEAS CORPUS

On April 26, 2021, ^[7] Petitioner filed the present petition asserting five grounds for relief as summarized by the Court:

In Ground One, Petitioner alleges that the trial court's denial of Petitioner's Batson challenges to the State's peremptory strikes of two prospective minority jurors violated Petitioner's constitutional rights to due process, equal protection, and a fair trial.

In Ground Two, Petitioner alleges that his burglary conviction is not supported by substantial evidence.

In Ground Three, Petitioner alleges that the trial court denied Petitioner's right to a fair trial and due process by incorrectly stating the law for first degree burglary and omitting the essential element of intent from the jury instruction, and by providing an instruction that allowed the jury to find Petitioner guilty of first-degree murder for “intending to cause serious physical injury or any injury.”

In Ground Four, Petitioner alleges that his rights to a fair trial, due process, and equal protection were violated when the burden of proof instruction “incorrectly convey[ed] the concept of reasonable doubt to the jury, shifted the burden of proof to Petitioner, and impermissibly ease[d] the prosecution's burden of proof.”

In Ground Five, Petitioner alleges that his trial and appellate counsel provided ineffective assistance.

(Doc. 4 at 1-2). Respondents argue the petition should be denied because it is untimely and certain claims are procedurally defaulted. (Doc. 8). Petitioner replied. (Doc. 14).

IV. TIMELINESS

A. Statute of Limitations.

“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). In general, 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.” 28 U.S.C. § 2244(d)(1)(A). If a petitioner does not seek review by the United States Supreme Court, the judgment becomes “final” upon the expiration of time for seeking such review. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007) (“The period of ‘direct review' includes the 90-day period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition.” (cleaned up)); see Sup. Ct. R. 13.

B. Statutory Tolling.

“‘[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)).

“Properly” filed means the application was filed in compliance with “applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). “[T]ime limits, no matter their form, are ‘filing' conditions.” Pace, 544 U.S. at 417. Thus, an untimely application for state post-conviction relief does not toll the statute. Id. at 414 (“When a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” (citation omitted)); Curiel, 830 F.3d at 868 (“A habeas petition that is untimely under state law is not ‘properly filed.'” (quoting Pace, 544 U.S. at 413)).

C. Equitable Tolling.

A petitioner is entitled to equitable tolling 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.” Holland v. Florida, 560 U.S. 631, 648 (2010) (quoting Pace, 544 U.S. at 418). “The diligence required . . . is ‘reasonable diligence,' no...