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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Robert C. Echols, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-02025-PHX-ROS

ORDER 

 Petitioner Robert C. Echols filed a pro se petition for habeas corpus pursuant to 28 

U.S.C. § 2254, raising seventeen claims. (Doc. 1). Magistrate Judge Eileen S. Willett 

issued a Report and Recommendation (“R & R”) to dismiss the petition as untimely. 

(Doc. 29), and Echols filed a timely objection. (Doc. 30). The Court will adopt the R & 

R, with comments. 

BACKGROUND

 Echols was convicted on two counts of Drive By Shooting at a Residence, and ten 

counts of Aggravated Assault with a Deadly Weapon or Dangerous Instrument. (Doc. 25-

1 at 4). He appealed the sentences for four of the aggravated assault counts, and on July 

8, 2009, the Arizona Court of Appeals affirmed the convictions and sentences. (Id. at 9). 

Echols did not petition the Arizona Supreme Court for review, and the Court of Appeals 

issued its mandate on September 30, 2009. (Doc. 25-5). On March 17, 2010, Echols filed 

a Notice of Post-Conviction Relief (“PCR”). (Doc. 25-6). The trial court denied his 

petition (Doc. 26-5), and on April 3, 2012, the Arizona Court of Appeals granted review, 

but denied relief. (Doc. 26-7). The thirty-day period to petition the Arizona Supreme 

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Court expired May 3, 2012. Ariz. R. Crim. P. 31.19(a). On July 30, 2012, the Arizona 

Court of Appeals issued its mandate, holding Echols had filed neither a motion for 

reconsideration nor a petition for review, and the time for doing either had expired. (Doc. 

26-8). Echols filed a petition for review on June 5, 2014 (Doc. 27-1), and the Arizona 

Supreme Court denied review without noting the petition’s untimeliness. (Doc. 27-2). 

 Echols filed his habeas petition on October 8, 2015. (Doc. 1). He filed a state 

habeas petition six days later. (Doc. 30 at 8). On February 4, 2016, Echols filed a motion 

in this case to toll the one-year statute of limitations “for the entire time that his state 

habeas corpus is pending in the Arizona courts.” (Doc. 14). 

DISCUSSION

 Echols’ petition is subject to a one-year statute of limitations provided for at 28 

U.S.C. § 2244(d)(1). The statute began to run “the date on which the judgment became 

final by the conclusion of direct review or the expiration of the time for seeking such 

review.” § 2244(d)(1)(A). Echols does not dispute the R & R’s finding that the start date 

was August 8, 2009. (Doc. 29 at 5; Doc. 30 at 2). Neither does he dispute the R & R’s 

finding that the limitations clock ran for a total of 221 days before he filed his PCR notice 

on March 17, 2010. (Doc. 29 at 6; Doc. 30 at 2). 

 Echols disputes the R & R’s statute of limitations analysis in only one respect: he 

claims the limitations clock remained tolled from March 17, 2010 until the Arizona 

Supreme Court denied his petition for review on October 20, 2014. (Doc. 30 at 2). The 

Court agrees with the R & R’s finding that the clock began to run again on May 4, 2012, 

when the time for seeking Arizona Supreme Court review expired (Doc. 29 at 6-7). And 

assuming Echols’ argument was correct, his habeas petition, filed October 8, 2015, was 

untimely. 

 A petitioner can overcome the one-year statute of limitations by a “convincing” 

showing of their innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1927 (2013) 

(discussing the so-called “Schlup gateway” and its application to statute of limitations 

issues). “To be credible, such a claim requires petitioner to support his allegations of 

constitutional error with new reliable evidence—whether it be exculpatory scientific 

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evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not 

presented at trial. Because such evidence is obviously unavailable in the vast majority of 

cases, claims of actual innocence are rarely successful.” Schlup v. Delo, 513 U.S. 298, 

324 (1995). Finally, “‘actual innocence’ means factual innocence, not mere legal 

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Echols’ petition does 

not so much as allude to any new evidence, but simply rehashes the evidence at trial. 

(Doc. 1 at 6). In his state court petition, he argues the state failed to prove he actually 

fired a gun during the drive-by shootings, and failed to prove certain sentencing 

enhancements. (Doc. 30 at 8-37). These arguments, even if true, are not enough to prove 

factual innocence. Instead of again arguing about the evidence presented, Echols would 

need to point to new evidence negating his guilt. He has not done so. Thus, Echols 

cannot make use of the Schlup/McQuiggin gateway to avoid the one-year statute of 

limitations. 

 Another issue merits some discussion. Echols has moved the Court to toll the 

present proceedings while his state habeas petition is adjudicated, explaining the state 

petition is intended to exhaust his actual innocence claim. The Court construes this to 

mean Echols may be attempting to raise a freestanding actual innocence claim.1

 Although 

 

1

 In Jones, the Ninth Circuit treated a freestanding claim that had not first been 

adjudicated in state court as unexhausted. 763 F.3d at 1243 n.1. The Ninth Circuit 

appears to have assumed the usual exhaustion requirements apply to such claims. A 

thorough analysis from the Eleventh Circuit reached the opposite conclusion: 

It is doubtful, however, that it is possible to procedurally default a 

freestanding actual innocence claim. The threshold for a freestanding actual 

innocence claim is higher than the showing of actual innocence required to 

invoke the fundamental miscarriage of justice exception to the procedural 

default doctrine. See House, 126 S. Ct. at 2087. As a result, if a petitioner in 

fact has a freestanding actual innocence claim, he would be entitled to have 

all his procedural defaults excused as a matter of course under the 

fundamental miscarriage of justice exception. 

Mize v. Hall, 532 F.3d 1184, 1195 n.9 (11th Cir. 2008). The Court need not decide 

whether a freestanding claim is subject to exhaustion, since Echols’ claim fails on the 

merits. See 28 U.S.C. § 225 (“An application for a writ of habeas corpus may be denied 

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the Supreme Court has not resolved whether such a claim is a cognizable basis for habeas 

relief, McQuiggin, 133 S. Ct. at 1931, the Ninth Circuit has acknowledged a freestanding 

innocence claim exists in capital cases, Carriger v. Stewart, 132 F.3d 463, 476-77 (9th 

Cir. 1997). However, it has declined to state whether it extends to the non-capital context. 

Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014). Assuming Echols can assert a 

freestanding claim, the evidentiary burden would be “extraordinarily high,” Herrera v. 

Collins, 506 U.S. 390, 417 (1993), requiring even “more convincing proof of innocence 

than Schlup.” House v. Bell, 547 U.S. 518, 555 (2006). Since Echols’ Schlup argument 

fails, his freestanding claim fails as well. This is true regardless of whether he is required 

to exhaust the claim. Therefore, his motion to toll the current proceedings is moot. 

 Accordingly, 

IT IS ORDERED the Report and Recommendation (Doc. 29) is ADOPTED. 

IT IS FURTHER ORDERED Petitioner’s Motion to Toll (Doc. 14) is DENIED. 

IT IS FURTHER ORDERED Petitioner’s Application for Writ of Habeas 

Corpus (Doc. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court shall close 

this case. 

 Dated this 30th day of August, 2016. 

Honorable Roslyn O. Silver

Senior United States District Judge

 

 

on the merits, notwithstanding the failure of the applicant to exhaust the remedies 

available in the courts of the State.”). 

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