Odette v. Shinn

• Decision Date: 27 December 2021
• Docket Number: CV-20-02450-PHX-DGC (JZB)
• Parties: Alexander Duane Odette, Petitioner, v. David Shinn, Respondent.
• Court: U.S. District Court — District of Arizona

Alexander Duane Odette, Petitioner,
v.
David Shinn, Respondent.

No. CV-20-02450-PHX-DGC (JZB)

United States District Court, D. Arizona

December 27, 2021

THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE

REPORT & RECOMMENDATION

Honorable John Z. Boyle United States Magistrate Judge

Petitioner has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, “Petition.”)

I. Summary of Conclusion.

Petitioner pleaded guilty to sexual misconduct with a minor and unsuccessfully sought post-conviction relief (“PCR”). Petitioner filed a habeas petition in this Court raising four grounds for relief. However, those grounds are non-cognizable, without merit, or procedurally defaulted. Accordingly, the Court recommends the Petition be denied and dismissed with prejudice.

II. Background.

As summarized by the Arizona Court of Appeals:^[1]

Odette pled guilty to sexual conduct with a minor and two

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counts of attempt to commit sexual conduct with a minor Consistent with the parties' stipulations in the plea the superior court imposed a slightly mitigated 19-year prison sentence on the completed offense and lifetime probation on the attempt convictions

Odette timely sought post-conviction relief. After reviewing the file and conferring with Odette, appointed counsel found no colorable claim for relief. Odette proceeded as a selfrepresented litigant and challenged the indictment and grand jury proceedings. Odette also argued his sentence was improperly aggravated, a confrontation call recording was inadmissible, and ineffective assistance of counsel during plea and post-conviction relief proceedings. The State filed its response at 12:20 a.m. the day after it was due. Referring to the State's untimeliness, Odette unsuccessfully moved to preclude the response. The court later dismissed Odette's petition.

State v. Odette, 2019 WL 4271907, at *1 (Ariz.Ct.App. Sept. 10, 2019).

The Arizona Court of Appeals granted review but denied relief. (Doc. 16-2, Ex. Q, at 121-23; see Doc. 16-2, Ex. O, at 76-84 (Petition for Review).) Petitioner did not seek review by the Arizona Supreme Court; on December 9, 2019, the Arizona Court of Appeals issued its mandate. (Doc. 16-2, Ex. R, at 123.)

III. Petition for Writ of Habeas Corpus.

Petitioner placed his Petition in the prison mailing system, and therefore filed it, on December 16, 2020.^[2] (Doc. 1 at 16.) As summarized by the Court, the Petition raises four grounds for relief:

In Ground One, Petitioner alleges that his attorney provided ineffective assistance.

In Ground Two, he alleges that his due process and equal protection rights were violated when “counsel was not appointed timely,” and the state “did not follow” various statutes and “failed to follow proper sentencing guidelines for first-time offenders.”

In Ground Three, Petitioner alleges that the trial court abused its discretion in various ways.

In Ground Four, Petitioner alleges that various “court rules” were “violated.”

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(Doc. 4 at 1-2.) On April 29, 2021, Respondents filed a Limited Answer. (Doc. 16.) On June 25, 2021, Petitioner filed a Reply. (Doc. 21.)

IV. Timeliness.

A. Statute of Limitations.

Whether a habeas petition is timely is a threshold issue the Court must resolve before considering its merits. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). “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 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); see Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

On September 10, 2019, the Arizona Court of Appeals denied relief on Petitioner's claims. (Doc. 16-2, Ex. Q, at 121-23.) Petitioner had 35 days, until October 15, 2019, in which to seek review in the Arizona Supreme Court. See Ariz. R. Crim. P. 31.19(a) (providing that a petition for review to the Arizona Supreme Court must be filed within 30 days from the Arizona Court of Appeals decision); Ariz. R. Crim. P. 1.3 (adding five days for mailing); Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007) (for purposes of § 2244(d)(1)(A), direct review is final upon conclusion of direct review or the time to seek such review). Petitioner did not seek further review, so the one-year statute of limitations would typically commence on October 15, 2019. The instant Petition was filed on December 16, 2020.

But, as disclosed by Respondents, the Arizona Court of Appeals issued the mandate on December 9, 2019. (Doc. 16-2, Ex. R, at 125.) AEDPA provides that “[t]he time during which a properly filed application for State post-conviction . . . review . . . is pending shall not be counted toward any period of limitation.” 28 U.S.C. § 2244(d)(2). The Court assumes without deciding that the Petition was due on December 9, 2020, one year after the Court of Appeals issued the mandate. See Celaya v. Ryan, 497 Fed. App'x. 744, 745, 2012 WL 5505736, at *1 (9th Cir. 2012)

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(“Under Arizona law, Celaya's post-conviction review (“PCR”) petition was ‘pending' until the Arizona Court of Appeals issued the mandate”); Wells v. Ryan, 2015 WL 9918159, at *9 (D. Ariz. Aug. 13, 2015), report and recommendation adopted, 2016 WL 319529 (D. Ariz. Jan. 27, 2016) (“[W]hen the Arizona Court of Appeals grants review of the trial court's decision on a petition for post-conviction relief but denies relief, and the petitioner does not seek further review, the post-conviction proceeding is pending until the date the appellate court issues its mandate.”). Petitioner placed his Petition in the prison mailing system-and therefore “filed” it-on December 16, 2020. (Doc. 1 at 16.) The Petition is therefore untimely by one week.

Petitioner maintains the Petition is timely because he filed a motion for reconsideration in the Arizona Court of Appeals before it issued the mandate. (Doc. 21 at 4.) But the Arizona Court of Appeals denied this motion on November 12, 2019, almost a month before the mandate issued, so Petitioner has already been afforded any additional tolling associated with that motion.

B. Equitable Tolling.

Petitioner may be entitled to equitable tolling. To qualify for equitable tolling, a petitioner must show “‘(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,' not ‘maximum feasible diligence.'” Holland, 560 U.S. at 653. However, “the threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (cleaned up). Thus, “equitable tolling is available . . . only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on...