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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Richard Thompson, 

Petitioner, 

vs.

Charles L. Ryan, et al., 

Respondents. 

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No. CIV 15-08180-PCT-DGC (MHB)

REPORT AND RECOMMENDATION

TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

Petitioner Richard Thompson, an inmate currently incarcerated in the Arizona State

Prison, in Tucson, Arizona, has filed a pro se Petition for a Writ of Habeas Corpus

(hereinafter “habeas petition”) pursuant to 28 U.S.C. §2254 (Doc. 1). Respondents filed an

Answer (Doc. 11), and Petitioner has not filed a Reply. Petitioner raises four claims in his

Petition that Respondents assert are untimely, procedurally defaulted without excuse, and

lack merit.

BACKGROUND

On December 2, 1993, Petitioner was charged by an Arizona Grand Jury with 10 counts

of aggravated assault, one count of unlawful flight, one count of theft of property, and one

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All Exhibits referenced are attached to Respondents’ Response, (Doc. 11), unless

otherwise noted.

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count of resisting arrest. (Doc. 11, Exh. A1

.) The charges stemmed from Petitioner stealing

a cab at gun point, refusing to stop the cab after police initiated a traffic stop, and pointing

a gun and shooting at multiple police officers after he was forced to pull over. (Exh. Y at 11-

12.) Prior to trial the trial court granted the state’s motion to dismiss two of the aggravated

assault charges and the resisting arrest charge. (Exh. FFFF at 14.) Petitioner went to trial

on the remaining charges, and on March 3, 1995, a jury found him guilty of theft, unlawful

flight and aggravated assault, and not guilty by reason of insanity on the remaining

aggravated assault charges. (Exh. LLLL at 945-49.) A jury trial was then held on

Petitioner’s prior convictions, and the jury found that Petitioner had six prior felony

convictions. (Exh. NNNN at 996-99.) On August 28, 1995, the trial court sentenced

Petitioner to aggravated, consecutive sentences totaling 36 years’ imprisonment. (Exhs. Z,

KK & QQQQ at 7-8.) Petitioner was initially sent to the Arizona State Hospital by virtue of

the insanity verdicts, and that his sentence on the other counts was to commence upon his

release from the state hospital. (Exh. AA at 2.)

On March 4, 1996, the Arizona State Hospital found that Petitioner was no longer

evidencing a mental disorder, was considered “clinically and psychiatrically stabilized,” and

recommended that Petitioner be returned to the Department of Corrections. (Exh. HH,

attached letter at 2.) On April 5, 1996, Petitioner filed a request to be released from the

Arizona State Hospital. (Exh. II.) A telephonic hearing took place on April 24, 1996, and

because the State and Petitioner were in agreement that he should be released from the

hospital, the court ordered him immediately transferred to the Department of Corrections to

begin serving his sentence. (Exhs. JJ; SSSS at 12-14.)

On September 8, 1995, Petitioner filed a timely notice of appeal. (Exh. RR.) Petitioner

moved to represent himself on appeal, but that request was denied, and Petitioner’s appointed

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counsel then filed an opening brief raising one issue on appeal - that the trial court erred in

imposing enhanced sentences for Petitioner’s Colorado convictions. (Exhs. TT, WW at 5.)

On September 26, 1996, the Arizona Court of Appeals issued an opinion denying relief and

affirming Petitioner’s convictions. (Exh. BBB.) Petitioner did not seek review in the

Arizona Supreme Court. (Exh. CCC.) 

Over 2-years later, in December, 1998, Petitioner filed a motion in the state court

requesting free transcripts. (Exh. GGG.) The trial court denied the motion, noting that “the

record was prepared and all transcripts previously provided for defendant’s appeal.” (Id.)

Petitioner appealed the trial court’s order and, on April 6, 1999, the Arizona Court of

Appeals dismissed the appeal, as the trial court’s order denying a motion for transcripts was

“non-appealable.” (Exh. MMM.) 

Thereafter, Petitioner filed various other documents with the trial court that ultimately

have no bearing on the issues raised in the instant matter: in 2001, Petitioner filed two

notices of “Petition for Writ of Habeas Corpus” that stated no grounds for relief; in April

2004, Petitioner filed a “Motion for Appointment of Counsel to Assist and Advise

Defendant;” in May 2004, Petitioner filed a “Notice of Appeal” and a “Motion for

Appointment of Counsel on Appeal;” in August 2005 and January 2009, Petitioner mailed

letters to the trial judge; in October 2011 Petitioner sent another letter to the trial judge; in

May 2012, Petitioner filed a “Pleading for Civil Rights or Conditions of Confinement”; in

January 2013, Petitioner filed another petition for writ of habeas corpus; in April 2015,

Petitioner filed a motion requesting that his time in prison be transferred to other inmates;

in August, 2015, Petitioner sent a letter to the trial court requesting that he be placed on death

row; in September 2015, Petitioner filed a motion to be moved to death row and motions for

speedy trial; and in October 2015, Petitioner filed a motion to be transferred to Yavapai

County. The court either denied the requests or took no action. (Exhs. NNN, TTTT at 2;

OOO, PPP, QQQ, RRR.)

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On February 28, 2011, the trial court issued a minute entry stating that it had received a

“Notice of Rule 32" with several attachments from Petitioner on February 24, 2011. (Exh.

SSS.) The minutes reflected that the document had not been “properly filed” with the court,

a copy had not been provided to the State, and the document “did not meet the requirements

of a Notice of Post-Conviction Relief, pursuant to Rule 32, and is clearly untimely.” (Id.)

The trial court apparently did not file the actual notice, as it does not appear in the official

state record. (See Exh. TTTT at 2; Doc. 11 at 10.) Petitioner filed another notice of postconviction relief in March 2011, which the trial court also dismissed as untimely. (Exhs.

TTT, UUU.)

Petitioner filed his habeas petition on September 12, 2015. (Doc. 1.) In Ground One of

his habeas petition he claims he “was sentenced to death by lethal injection.” (Id. at 6.)

Petitioner states, however, that he is “not challenging [his] sentencing,” but claims that he

was not afforded counsel, “was not present in court room for trial, and “was not afforded

opportunity to cross examine witnesses or face [his] accusers, and that his due process rights

were violated.” (Id.) In Ground Two, Petitioner asserts that he was “not afforded trial

transcripts or appointment of counsel.” (Id. at 7.) In Ground Three, Petitioner claims he was

“not afforded access to law library.” (Id. at 8.) In Ground Four, Petitioner claims that he was

“not allowed to call defense witnesses.” (Id. at 9.) Petitioner requests as relief that he be

moved “to death row for lethal injection.” (Id. at 11.) Petitioner does not provide any further

support for his claims other than his assertions.

Respondents assert that Petitioner’s habeas petition is untimely by 17 years, 10 months,

and 12 days, and should be dismissed. (Doc. 11, at 12.)

LEGAL ANALYSIS

I. Timeliness under the AEDPA.

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a statute

of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28

U.S.C. § 2244(d)(1). The statute provides:

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A 1-year period of limitation shall apply to an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a State court. The limitation period

shall run from the latest of –

(A) the date on which the judgment became final by the 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 applicant

was prevented from filing by such State action;

(C) 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

(D) the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.

“[T]he period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) includes the 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.” Bowen v. Roe, 188 F.3d

1157, 1158-59 (9th Cir. 1999). Additionally, “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward” the limitations period. 28 U.S.C.

§ 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A state petition that is

not filed, however, within the state’s required time limit is not “properly filed” and, therefore,

the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413

(2005). “When a postconviction petition is untimely under state law, ‘that [is] the end of the

matter’ for purposes of § 2244(d)(2).” Id. at 414.

A post-conviction petition is “clearly pending after it is filed with a state court, but before

that court grants or denies the petition.” Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir.

2004), rev’d on other grounds sub nom., Evans v. Chavis, 546 U.S. 189 (2006). In Arizona,

post-conviction review is pending once a notice of post-conviction relief is filed even though

the petition is not filed until later. See Isley v. Arizona Department of Corrections, 383 F.3d

1054, 1056 (9th Cir. 2004). An application for post-conviction relief is also pending during

the intervals between a lower court decision and a review by a higher court. See Biggs v.

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Even if this Court were to consider Petitioner’s December, 1998 “request for free

transcripts” filing in the trial court as an initiation of post-conviction proceedings, that

request and all of the other miscellaneous documents mailed to the court by Petitioner were

filed over 2-years after the Arizona Court of Appeals affirmed Petitioner’s convictions.

Thus, the AEDPA statute of limitations had already run.

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Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223

(2002)). However, the time between a first and second application for post-conviction relief

is not tolled because no application is “pending” during that period. See Biggs, 339 F.3d at

1048; see also Cross v. Sisto, 676 F.3d 1172, 1179 (9th Cir. 2012) (“Petitioners are not

entitled to statutory tolling between rounds of state [post-conviction] petitions.”).

The Court finds that Petitioner’s Petition for Writ of Habeas Corpus is untimely. After trial

and sentencing, Petitioner appealed his convictions and sentence to the Arizona Court of

Appeals. The court of appeals affirmed Petitioner’s convictions and sentence on September

26, 1996. Petitioner did not file a petition for review in the Arizona Supreme Court.

Consequently, Petitioner’s convictions became final 35 days later – October 31, 1996 – when

the time expired for filing a petition for review expired. See Ariz.R.Crim.P. 31.9(a) (within

30 days after the Court of Appeals issues its decision, any party may file a petition for review

with the clerk of the Supreme Court); see also Ariz. R. Crim. P. 1.3 (West 1996) (“Whenever

a party has the right or is required to take some action within a prescribed period after service

of a notice or other paper and such service is allowed and made by mail, 5 days shall be

added to the prescribed period.”) The AEDPA statute of limitations started running on the

next day, November 1, 1996, and expired one-year later on October 31, 1997. Petitioner did

not file his habeas petition until September 12, 2015.

The trial court record indicates that Petitioner filed a notice of post-conviction relief in

February, 2011. Even if the notice was properly filed, Petitioner’s habeas petition would still

be untimely. A post-conviction proceeding initiated after the statute of limitations has

already run does not re-start the limitations period.2

 See Ferguson v. Palmateer, 321 F.3d

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820, 823 (9th Cir. 2003). The notice was not properly filed however, as the trial court ruled

that Petitioner’s notice was untimely by several years, and thus, it would not have tolled any

of the time period while it was pending. See Pace, 544 U.S. at 413. 

The statute of limitations under AEDPA is subject to equitable tolling in appropriate cases.

See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for equitable tolling to apply,

a petitioner must show “‘(1) that he has been pursuing his rights diligently and (2) that some

extraordinary circumstances stood in his way’” and prevented him from filing a timely

petition. Id. at 69 (quoting Pace, 544 U.S. at 418). Tolling is appropriate when

“‘extraordinary circumstances’ beyond a [petitioner’s] control make it impossible to file a

petition on time.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that “the

threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the

exceptions swallow the rule”) (citations omitted). “When external forces, rather than a

petitioner’s lack of diligence, account for the failure to file a timely claim, equitable tolling

of the statute of limitations may be appropriate.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th

Cir. 1999). A Petitioner must also establish a “causal connection” between the extraordinary

circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General,

499 F.3d 1056, 1060 (9th Cir. 2007).

Petitioner makes no attempt in his habeas petition to excuse his late (over 17 years) filing,

and has not filed a Reply. Thus, Petitioner is not entitled to equitable tolling of the statute

of limitations period. 

CONCLUSION

For the foregoing reasons, the Court finds Petitioner’s habeas petition is untimely and

should be dismissed. Thus, the Court will therefore recommend that the petition be denied

and dismissed. IT IS THEREFORE RECOMMENDED:

 That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be

DENIED and DISMISSED WITH PREJUDICE;

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IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to

proceed in forma pauperis on appeal be DENIED because dismissal of the habeas petition

is justified by a plain procedural bar and jurists of reason would not find the procedural

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 fourteen days from the date of service of a copy of this recommendation within which

to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a),

6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within

which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil

Procedure for the United States District Court for the District of Arizona, objections to the

Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely

to 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 timely to 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 or judgment entered

pursuant to the Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil

Procedure.

DATED this 8th day of September, 2016.

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