Elem v. Ryan

Melinda Ann Elem, Petitioner, v. Charles L. Ryan, et. al., Respondents.

No. CV-09-00664-TUC-FRZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: September 27, 2013

ORDER

Melinda Ann Elem ("Petitioner"), presently an inmate at the Arizona State Prison Complex in Goodyear, Arizona, has filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition") pursuant to 28 U.S.C. § 2254. (Doc. 4). The matter is now fully briefed. For the following reasons, the Court will dismiss in part and deny in part Petitioner's Amended Petition.

I. FACTUAL AND PROCEDURAL HISTORY

A. Trial

Petitioner sought to hire a person to kill the unborn child of her husband's former girlfriend, Ms. Margaret Cisco, who was uncertain whether the father of her baby was Petitioner's husband or some other man. (Answer, (Docs. 12, 13), Exh. H, pp. 2-3). The person Petitioner attempted to hire was an undercover officer whom she agreed to give "[]a quarter of [an] ounce of drugs[] and a bus ticket in exchange for the killing." (Answer, Exh. H, p. 2). On April 22, 2004, a jury found Petitioner guilty as charged ofone count conspiracy to commit first-degree murder and aggravated assault upon Margaret Cisco and to commit manslaughter of Margaret Cisco's unborn child, a class 1 felony (Count 1), and one count transfer of a narcotic drug (cocaine), a class 2 felony (Count 2).(Answer, Exh. E, pp. 60-62; Answer, Exh. H, p.3). Petitioner was sentenced to concurrent terms of life imprisonment with no possibility of release for 25 years of imprisonment on Count 1 and 3 years of imprisonment on Count 2. (Answer, Exh. F, pp. 83-84).

B. Direct Review

Petitioner appealed her convictions to the Arizona Court of Appeals. (Answer, Exhs. G, H). On August 29, 2005, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Answer, Exh. H, p. 2). Petitioner filed a Petition for Review with the Arizona Supreme Court which was denied on May 23, 2006. (Answer, Exh. I, p. 20; Answer Exh. J, p.50).

C. Collateral Review

On June 20, 2006, Petitioner filed a Notice of Post-Conviction Relief. (Answer, Exh. K, p. 52).Petitioner filed her Petition for Post-Conviction Relief ("PCR Petition") on March 7, 2007. (Answer, Exh. L). The trial court denied Petitioner's PCR Petition on June 11, 2007. (Answer, Exh. M). Petitioner then filed a petition for review with the Arizona Court of Appeals and the appellate court granted review but denied relief. (Answer, Exhs. N, O). On October 29, 2008, the Arizona Supreme Court summarily denied the petition for further review. (Answer, Exh. Q). The mandate issued on December 16, 2008.¹

D. Federal Habeas Petition

In accordance with the prison "mailbox rule," Petitioner's federal habeas petition is deemed filed on November 2, 2009, when Petitioner delivered it to prison authorities for mailing to the court. Houston v. Lack, 487 U.S. 266, 276 (1988). After screening thePetition, the Court dismissed it without prejudice with leave to refile. (Doc. 3). Thereafter, Petitioner filed an Amended Petition raising four grounds for relief, and this Court ordered Respondents to answer it. (Docs. 4, 5).

In their Answer, Respondents argue the Habeas Petition is untimely, Grounds One and Three are procedurally defaulted, and all four claims fail on the merits. (Doc. 12). In Reply, Petitioner argues that her Petition is timely filed. (Doc. 17). Although Petitioner withdraws claim 3 (Id. at p. 2), she contends that her other claims are properly before the Court and she is entitled to relief. (Id. at pp. 3-6, 16-36).

II. DISCUSSION

A. Statute of Limitations

Petitioner commenced this action on November 2, 2009. The Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations for state prisoners filing federal habeas petitions. 28 U.S.C. § 2244(d)(1). The statute of limitations begins to run from the latest of: (1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) 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 was removed, if the applicant was prevented from filing by such State action; (3) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

Additionally, the AEDPA limitations period is statutorily tolled when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending...." 28 U.S.C. § 2244(d)(2). Moreover, the AEDPA limitations period may also be subject to equitable tolling. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 n. 2 (9^th Cir. 2009).

Petitioner's case became "final" on direct review on August 23, 2006, when the time for filing a petition for writ of certiorari to the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1158-69 (9^th Cir. 1999). Before her conviction became final on direct review, Petitioner filed her Notice of Post-Conviction Relief on June 20, 2006. Therefore, when the statute of limitations began to run pursuant to § 2244(d)(1)(A), it was automatically tolled by Plaintiff's PCR action. See 28 U.S.C. § 2254(d)(2); Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9^th Cir.2004) (filing of a notice of post-conviction relief begins statutory tolling).

During Petitioner's PCR proceeding, the trial court denied Petitioner's PCR Petition, the Arizona Court of Appeals granted review but denied relief, and on October 29, 2008, the Arizona Supreme Court entered its summary denial of Petitioner's Petition for Review. (Answer, Exhs. M, O, Q; see also Answer, Exh. P (appellate court order granting in part and denying in part Petitioner's motion for reconsideration)). On December 16, 2008, the Arizona Court of Appeals issued the mandate. See Ariz.R.Crim.P. 31.23(a)(3) (the clerk of the Court of Appeals shall issue the mandate 15 days after receipt of an order of the Supreme Court denying the petition for review).

Respondents contend that the statutory tolling period ended on October 29, 2008 when the Arizona Supreme Court denied review of the Arizona Court of Appeals' decision in the PCR proceeding. (Answer, p. 15). According to Respondents, Petitioner then had until October 29, 2009 to seek federal habeas relief. (Id). Petitioner counters that her federal petition is timely filed because the statutory tolling period did not end until the Arizona Court of Appeals issued the mandate on December 16, 2008.

Until an application for state post-conviction relief has achieved final resolution through the state's post-conviction procedure it remains pending. Carey v. Saffold, 536 U.S. 214, 220 (2002). State law determines the conclusion of collateral review and thus, state law also determines the conclusion of statutory tolling under the AEDPA. See Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir.2007). "In Arizona, when the court of appeals grants review of a petition, but denies the petition, direct review is not finaluntil the mandate has issued." Ramon v. Ryan, 2010 WL 3564819, *6 (D. Ariz. July 23, 2010) (citing Ariz.R.Crim.P. 31.23(a)²). See also Celaya v. Stewart, 691 F.Supp.2d 1046, 1055, 1055, 1074-1075, (D.Ariz. 2010) (adopting magistrate judge's conclusion that PCR petition "was pending, as the Supreme Court defined that term in Carey, until it reached final resolution upon issuance of the court of appeals mandate..", and holding "under Arizona law, the Petitioner is entitled to statutory tolling because an Arizona appellate court decision is not final until the mandate issues")(collecting cases holding that conviction becomes final on date either the appellate court or state supreme court issues the mandate), aff'd 497 Fed Appx. 744, 2012 WL 5505735, *1 (9^th Cir. 2012); see also Celaya, 497 Fed.Appx. 744, 745, 2012 WL 5505736 at *1 ("Under Arizona law, [petitioner's] post-conviction review...petition was 'pending' until the Arizona Court of Appeals issued the mandate concluding its review of that petition....")).

Arizona Rules of Criminal Procedure provide, in pertinent part, that in cases where the petitioner seeks review of the appellate court's decision, the appellate court "shall not issue a mandate until 5 days after the receipt" of an order denying review. Ariz.R.Crim.P. 31.21(a)(3). See also A.R.S. § 12-120.24 ("upon receipt from the clerk of the supreme court of notification that the request for review has been denied, the clerk of the division [of the appellate court] shall, if the matter has been decided by formal opinion, issue the mandate of the court of appeals, if no written formal opinion has been rendered then by certified copy of the order of the court."). Further, in a case where the appellate court had issued a memorandum opinion, the Arizona Supreme Court has explained that "[i]f this court denies the petition and cross petition for review, the Court of Appeals issues the mandate to the trial court....This procedure comports with the notion that the court which makes the binding decision should issue the mandate." Statev. Ikirt, 160 Ariz. 113, 770 P.2d 1159 (1989) (citing Ariz.R.Crim.P. 31.19(h)); see also Borrow v. El Dorado Lodge, Inc., 75 Ariz. 218, 254 P.2d 1027, 220, 1028-29 (1953) (an appellate court's decision becomes effective "under our practice, [on] the date of issuance of.the mandate") (citation omitted).

Respondents' reliance on Ninth Circuit cases construing Washington and Guam law is inapposite given that the Ninth Circuit did not construe Arizona law in those cases. (See Answer, p. 15 (citing White v. Klitzkie...