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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Russell J. McMillan, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-02440-PHX-JJT (BSB)

REPORT AND 

RECOMMENDATION 

 Petitioner Russell J. McMillan has filed a Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents assert that the Petition should be 

dismissed as untimely under the Anti-Terrorism and Effective Death Penalty Act 

(AEDPA), which provides the statute of limitations applicable to state prisoners seeking 

federal habeas corpus relief. (Doc. 10 at 2.) Alternatively, Respondents argue that 

federal habeas corpus review of Petitioner’s claims is procedurally barred. (Id.) 

Petitioner has filed a reply in support of his Petition. (Doc. 11.) For the reasons below, 

the Court finds the Petition untimely, recommends that it be dismissed, and does not 

consider Respondents’ alternative arguments. 

I. Factual and Procedural Background

A. Charges, Plea, and Sentencing 

 On July 21, 2009, Petitioner was indicted in the Marciopa County Superior Court 

on one count of manslaughter, a class two dangerous felony (Count One), one count of 

aggravated assault, a class three dangerous felony (Count Two), one count of 

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endangerment, a class six dangerous felony (Count Three), and one count of leaving the 

scene of a fatal injury accident, a class two felony (Count Four). (Doc. 10, Ex. B.) On 

March 9, 2010, Petitioner pleaded guilty pursuant to a plea agreement to one count of 

manslaughter, a class two dangerous felony (Count One), and to one count of aggravated 

assault, a class three dangerous felony (Count Two). (Doc. 10, Exs. C, D.) On April 27, 

2010, the trial court sentenced Petitioner to aggravated terms of sixteen years’ 

imprisonment on Count One and nine years’ imprisonment on Count Two, with the 

sentences to run consecutively. (Doc. 10, Ex. G.) 

B. Post-Conviction Review 

 1. First Post-Conviction Proceeding (of-right proceeding) 

 On July 29, 2010, Petitioner filed a notice of post-conviction relief in the trial 

court to commence an “of-right” post-conviction proceeding under Rule 32 of the 

Arizona Rules of Criminal Procedure. (Doc. 10, Ex. I.) The court appointed postconviction counsel, who later filed a notice stating that he had reviewed the record and 

was unable to find any viable issues to raise on post-conviction review. (Doc. 10, Exs. J, 

K.) Counsel requested an extension of time for Petitioner to file a pro se petition. (Id.) 

The court extended the deadline for filing a pro se petition to June 27, 2011, and ordered 

that post-conviction counsel remain on the case in an advisory capacity. (Doc. 10, 

Ex. L.) On October 25, 2011, the trial court dismissed the post-conviction proceeding 

because the June 27, 2011 deadline had passed and Petitioner had not filed a petition. 

(Doc. 10, Ex. M.) Petitioner did not seek review in the Arizona Court of Appeals. 

 2. Second Post-Conviction Proceeding

 On October 23, 2013, Petitioner filed a notice of post-conviction relief and a 

petition. (Doc. 20, Exs. N, O.) On December 5, 2013, the court dismissed the petition 

because it was untimely and successive and did not raise any claims that could be raised 

in an untimely or successive Rule 32 proceeding. (Doc. 10, Ex. P.) Petitioner sought 

review in the Arizona Court of Appeals. (Doc. 10, Ex. Q.) On June 30, 2015, the 

appellate court granted review, but denied relief. (Id.) 

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C. Federal Petition for Writ of Habeas Corpus 

 On December 1, 2015, Petitioner filed a Petition for Writ of Habeas Corpus in this 

Court. (Doc. 1.) Petitioner asserts that his sentences are illegal (Ground One), trial and 

post-conviction counsel were ineffective (Ground Two), and that he was denied the right 

to correct his illegal sentence (Ground Three). (Doc. 1 at 6-9.) As set forth below, the 

Court finds that the Petition is untimely and should be dismissed. 

II. Statute of Limitations 

 A. Commencement of the Limitations Period 

The AEDPA provides a one-year statute of limitations for state prisoners to file 

petitions for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). The 

limitations period generally commences on “the date on which 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).1

 Therefore, to assess the timeliness of the Petition, the Court 

determines the date on which Petitioner’s conviction became “final by the conclusion of 

direct review.” 28 U.S.C. § 2244(d)(1)(A). By pleading guilty, Petitioner was precluded 

from pursuing a direct appeal in the Arizona Court of Appeals. See Ariz. Rev. Stat. §13-

4033(B). Rather, Petitioner could seek review in an “of-right” proceeding under Rule 32, 

which is the functional equivalent of a direct appeal. See Ariz. R. Crim. P. 32.1 and 32.4; 

Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007) (noting that Arizona courts 

consider Rule 32 of-right proceedings a form of direct review). 

 

1

 The statute of limitations commences on the latest of the dates determined by applying §§ 2244(d)(1)(A) through (D). See 28 U.S.C. §§ 2244(d)(1)(A)-(D). Petitioner 

does not make any allegations indicating that subsections (B) or (C) should apply, or that application of these subsections would result in a starting date for the statute of limitations that is later than the date determined under § 2244(d)(1)(A). 

In his Petition, Petitioner asserts that he “discovered new facts about his sentences 

and trial counsel that allowed [him] to file a second Rule 32.” (Doc. 1 at 11.) However, 

Petitioner does not identify those new facts, state when he discovered those facts, or 

explain why he was unable to file a timely petition in this Court without the alleged new facts. Therefore, Petitioner’s allegations are insufficient to establish a later starting date for the statute of limitations. See 28 U.S.C. § 2244(d)(1)(D) (stating that the limitations period commences on “the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence.”). 

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 On July 29, 2010, Petitioner filed a notice of post-conviction relief to commence a 

Rule 32 of-right proceeding.2

 (Doc. 10, Ex. I.) The trial court denied relief on October 

25, 2011. (Doc. 10, Ex. M.) Petitioner had thirty-five days, until November 29, 2011, in 

which to seek review in the Arizona Court of Appeals. See Ariz. R. Crim. P. 32.9(c) 

(providing that a petition for review must be filed within thirty days from the final 

decision in a post-conviction proceeding); Ariz. R. Crim. P. 1.3 (adding five days for 

mailing). Petitioner did not seek review in the Arizona Court of Appeals. 

 Because a Rule 32 of-right proceeding is considered a form of direct review, 

Petitioner’s conviction become final for purposes of § 2244(d)(1)(A) upon the expiration 

the time for seeking further review, November 29, 2011. See Summers, 481 F.3d at 711; 

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). Therefore, the one-year limitations period commenced the next day, 

November 30, 2011, and expired one year later, on November 30, 2012. See Patterson v. 

Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the AEDPA limitations period begins 

to run on the day after the triggering event pursuant to Fed. R. Civ. P. 6(a)). Because 

Petitioner did not file his Petition until December 1, 2015, it is untimely unless statutory 

tolling, equitable tolling, or an exception to the statute of limitations applies. 

B. Statutory Tolling 

 Pursuant to the AEDPA, the one-year limitations period is tolled during the time 

that 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); see Nino 

v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (stating that an application for collateral 

 

2

 Petitioner filed his notice of post-conviction relief three days after the expiration of the deadline for filing that notice. See Ariz. R. Crim. P. 32.1, 32.4(a) (“In a Rule 32 

of-right proceeding, the notice must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the final order or 

mandate by the appellate court in the petitioner’s first petition for post-conviction relief proceeding.”). However, the trial court accepted it and treated it as timely. Therefore, the Court considers the first post-conviction proceeding timely filed for purposes of applying the AEDPA’s statute of limitations. 

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review is pending in state court for “all the time during which a state prisoner is 

attempting, through proper use of state court procedures, to exhaust state remedies with 

regard to particular post-conviction proceedings.”). On October 23, 2013, nearly two 

years after his Rule 32 of-right proceeding was dismissed, Petitioner commenced a 

second post-conviction proceeding. (Doc. 10, Exs. N, O.) The AEDPA statute of 

limitations had expired by the time Petitioner commenced his second post-conviction 

proceeding. Once the AEDPA limitations period expires, a subsequently filed petition 

for post-conviction relief cannot restart the statute of limitations. See Ferguson v. 

Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that “section 2244(d) does not 

permit the reinitiation of the limitations period that has ended before the state petition 

was filed.”). Therefore, the filing of the second post-conviction proceeding did not toll 

the limitations period, and the December 1, 2015 Petition is untimely unless equitable 

tolling or an exception to the statute of limitations applies. 

C. Equitable Tolling or Exceptions to the Limitations Period 

 The AEDPA limitations period may be equitably tolled because it is a statute of 

limitations, not a jurisdictional bar. Holland v. Florida, 560 U.S. 631, 645 (2010). 

However, a petitioner is entitled to equitable tolling only if he shows: “(1) that he has 

been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 

his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). “The diligence required for 

equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” 

Holland, 560 U.S. at 653 (internal citations and quotations omitted). 

 Liberally construing Petitioner’s filings, he argues that the statute of limitations 

should be equitably tolled or extended because (1) post-conviction counsel was 

ineffective for failing to raise any claims on post-conviction review (Doc. 2 at 4); (2) he 

is unfamiliar with the law and “could not find help at the time he was required to file” 

(Doc. 11 at 4); (3) the AEDPA is unconstitutional (Doc. 11 at 5-6); and (4) failure to 

consider his claims will result in a fundamental miscarriage of justice. (Doc. 2 at 1.) As 

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set forth below, Petitioner has not established a basis for equitably tolling or extending 

the statute of limitations. 

 1. Ineffective Assistance of Post-Conviction Counsel 

 Petitioner argues that equitable tolling should apply because post-conviction 

counsel was ineffective for failing to present any issues to the trial court. (Doc. 2 at 4; 

Doc. 11 at 2.) Petitioner cites Martinez v. Ryan, ___ U.S. ___, 132 S. Ct 1309 (2012), to 

support his claim. (Doc. 11 at 2.) Petitioner’s reliance on Martinez to excuse his 

untimely filing is misplaced. In Martinez, the Supreme Court held that, under limited 

circumstances, ineffective post-conviction counsel could constitute cause to excuse the 

procedural default of a claim of ineffective assistance of counsel. Martinez, 132 S. Ct. at 

1315; see also Ha Van Nguyen v. Curry, 736 F.3d 1287, 1293-95 (9th Cir. 2013) 

(extending the holding in Martinez to claims of ineffective assistance of appellate 

counsel). 

 The Martinez decision does not address the timeliness of a habeas petition or the 

tolling of the AEDPA limitations period. See Wheelwright v. Wofford, 2014 WL 

3851155, at *3 (E.D. Cal. Aug. 5, 2014) (“Although the rule in Martinez is an equitable 

one, it applied only to procedural default issues and does not apply to equitable tolling 

principles pertinent to the AEDPA limitations issue.”); see also White v. Martel, 601 F.3d 

882, 884 (9th Cir. 2010) (the adequacy analysis used to decide procedural default issues 

is inapplicable to the determination of whether a federal habeas petition was barred by the 

AEDPA statute of limitations); Moreno v. Ryan, 2014 WL 24151, at *1 (D. Ariz. Jan. 2, 

2014) (rejecting the petitioner’s claim that Martinez delayed the start of the limitations 

period pursuant to 28 U.S.C. § 2244(d)(1)(C) and finding that “Martinez has no 

applicability to this action as it does not concern the timeliness of a habeas petition.”). 

 Additionally, assuming counsel during the Rule 32 of-right proceeding failed to 

recognize issues to present in that proceeding, Petitioner does not explain how those 

failures prevented him from filing a timely habeas corpus petition in this Court. See Glen 

v. Ontiveros, 2008 WL 2367256, at *8 (D. Ariz. Jun. 6, 2008) (equitable tolling does not 

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apply when counsel’s alleged ineffectiveness does not cause the petitioner to fail to meet 

the statute of limitations). Accordingly, Petitioner’s allegations regarding postconviction counsel do not justify tolling the limitations period. 

 2. Lack of Legal Knowledge 

 To support his argument that the statute of limitations should be equitably tolled or 

extended, Petitioner argues that he did not understand that he could file a petition for 

post-conviction relief and could not find help during the time that he was required to file 

a petition for post-conviction relief. (Doc. 11 at 4.) Petitioner’s difficulties in filing a 

petition for post-conviction relief in the state court, do not explain his failure to file a 

timely petition for writ of habeas corpus in this Court. Additionally, Petitioner’s lack of 

familiarity with the law and lack of legal assistance do not constitute extraordinary 

circumstances sufficient to toll the limitations period. “[I]t is well established that 

‘ignorance of the law, even for an incarcerated pro se petitioner, generally does not 

excuse prompt filing.’” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (quoting 

Fisher v. Johnson, 174 F.3d 710, 714 (9th Cir.1999)). 

 Petitioner’s ignorance of the law and indigent status do not distinguish him from 

the great majority of inmates pursuing habeas corpus relief. Such circumstances are not 

extraordinary and do not justify tolling the limitations period. “If limited resources, lack 

of legal knowledge, and the difficulties of prison life were an excuse for not complying 

with the limitation period, the AEDPA’s limitation period would be meaningless since 

virtually all incarcerated prisoners have these same problems in common.” Bolanos v. 

Kirkland, 2008 WL 928252, at *4 (E.D. Cal. Apr. 4, 2008); see also Rasberry v. Garcia, 

448 F.3d 1150, 1154 (9th Cir.2006) (affirming denial of equitable tolling because neither 

the district court’s failure to advise the petitioner of the right to amend his petition to 

include unexhausted claims nor petitioner’s inability to correctly calculate the limitations 

period were extraordinary circumstances warranting equitable tolling). 

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 3. Constitutionality of the AEPDA

 Petitioner argues that the Court should disregard the AEDPA’s statute of 

limitations because it violates the Suspension Clause of the Constitution, Article I, § 9. 

(Doc. 11 at 5-6.) The Ninth Circuit has rejected this argument. See Green v. White, 223 

F.3d 1001, 1003-04 (9th Cir. 2000) (holding that “the one-year limitation does not per se 

render the writ of habeas corpus inadequate or ineffective.”). The Ninth Circuit 

explained that the AEDPA’s one-year limitations period “does not violate the Suspension 

Clause because it is not jurisdictional and may be subject to equitable tolling.” Id. (citing 

Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000)). Therefore, 

the Court rejects Petitioner’s assertion that the AEDPA statute of limitations should be 

ignored because it is unconstitutional. 

 4. Fundamental Miscarriage of Justice 

Finally, Petitioner argues that his untimely filing should be excused because 

failure to consider his claims will result in a fundamental miscarriage of justice. (Doc. 2 

at 1.) Petitioner, however, has not established that he has a credible claim of actual 

innocence that constitutes an equitable exception to the one-year statute of limitations. In 

McQuiggin v. Perkins, ___ U.S. ___, 133 S. Ct. 1924 (2013), the Supreme Court 

recognized an exception to the AEDPA statute of limitations for a claim of actual 

innocence. The Court adopted the actual innocence gateway previously recognized in 

Schlup v. Delo, 513 U.S. 298, 314-15 (1995), for excusing the bar to federal habeas 

corpus review of procedurally defaulted claims. McQuiggin, 133 S. Ct. at 1928 (citing 

Schlup, 513 U.S. at 937-38.) 

 The rule announced in McQuiggin does not provide for an extension of the time 

statutorily prescribed, but instead is an equitable exception to § 2244(d)(1). McQuiggin, 

133 S. Ct. at 1931. Actual innocence, if proven, merely allows a federal court to address 

the merits of a petitioner’s otherwise time-barred constitutional claims; the Supreme 

Court has not yet addressed whether “a freestanding claim of actual innocence” provides 

a separate basis for granting habeas relief. Id. 

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 To pass through the Schlup gateway, a “petitioner must show that it is more likely 

than not that no reasonable juror would have convicted him in the light of the new 

evidence.” Schlup, 513 U.S. at 316. Schlup requires a petitioner ‘to support his 

allegations of constitutional error with new reliable evidence — whether it be exculpatory 

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that 

was not presented at trial.’” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (quoting 

Schlup, 513 U.S. at 324). Petitioner has not presented new evidence and has not shown 

that failure to consider his claims will result in a fundamental miscarriage of justice. 

(Docs. 1, 2, 11.) Thus, he has not met Schlup’s high standard and this exception does not 

excuse his untimely filing. 

III. Conclusion 

 Petitioner did not file the pending Petition until December 1, 2015, three years 

after the statute of limitations expired. Therefore, the Petition is untimely. Furthermore, 

Petitioner is not entitled to statutory or equitable tolling, and has not established that an 

exception to the limitations period should apply. Accordingly, the Petition should be 

denied as untimely. Therefore, the Court does not consider Respondents’ alternative 

grounds for denying habeas corpus relief. 

 Accordingly, 

IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus (Doc. 1) be 

DENIED. 

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 

Petition is justified by a plain procedural bar and reasonable jurists would not find the 

procedural ruling debatable and because Petitioner has not made a substantial showing of 

the denial of a constitutional right. 

 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) of the Federal 

Rules of Appellate Procedure should not be filed until entry of the District Court’s 

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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); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which 

to file a response to the objections. Failure to file timely 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 file timely objections to 

any factual determinations of the Magistrate Judge may 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. 

 Dated this 9th day of March, 2016. 

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