Free Order - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

GREGORY ALLEN WATERMAN, Petitioner, vs. DORA B. SCHRIRO, et al., Respondents.

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2:02-cv-02368 JWS ORDER FROM CHAMBERS [Re: Report and Recommendation at docket 73]

I. MATTER PRESENTED At docket 1, petitioner filed a petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. At docket 9, respondents filed an answer to the petition. Magistrate Judge Morton Sitver filed his report and recommendation at docket 73. At docket 84, petitioner filed his objections to the report and recommendation. II. STANDARD OF REVIEW The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."1 When reviewing a magistrate judge's report and recommendation in a habeas case, the district court reviews de novo findings

1

28 U.S.C. § 636(b)(1).

Case 2:02-cv-02368-JWS

Document 99

Filed 05/04/2006

Page 1 of 7

of fact2 and conclusions of law and to which parties object.3 The court reviews for clear error uncontested findings of fact.4 III. DISCUSSION The court has reviewed the magistrate judge's report and recommendation under the standard articulated above, including a de novo review of the findings of fact and conclusion of law to which petitioner objects. Petitioner objects to the magistrate judge's findings that petitioner did not deposit a state-court petition for review in his prison's mailbox on May 15, 2000, and that even if he did, he failed to diligently follow up on the petition. Petitioner also objects to the magistrate judge's conclusion that the habeas petition that petitioner filed in this court is untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A. Mailbox Petitioner alleges he deposited a petition for review in his prison's mailbox on May 15, 2000. The petition sought review by the Arizona Supreme Court of petitioner's conviction, but it was addressed to the Arizona Court of Appeals and the Maricopa County Attorney's Office. It is the procedure in Arizona for the court of appeals to forward petitions to the supreme court.5

2

28 U.S.C. § 636(b)(1).

Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
4

3

Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 906 (3d Cir. 1992). Doc. 84, ex. A, transcript of evidentiary hearing on June 23, 2004, p. 65, ll. 7-11.

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In support of his allegation, petitioner and Justen Planette, a witness to the alleged mailing and the drafter of petitioner's state-court filings and his habeas petition, testified petitioner put the petition in the prison's mailbox on May 15, 2000.6 They also testified neither the prison official who should have been tending the mailbox nor the log in which the mailing should have been recorded was present at the time.7 Petitioner's allegation that he deposited his petition in the prison's mailbox shifts the burden of producing evidence sufficient to support a contrary finding to respondents.8 The evidence supporting a contrary finding includes the following facts: 1) petitioner's inmate account was not debited for postage; 2) the letter's intended recipients, the Arizona Court of Appeals and the Maricopa County Attorney's Office, have no record of receiving the letter; 3) the mail log contains no record of petitioner mailing the letter; and 4) the prison's mail clerk has no record of receiving the letter. None of those facts supports a finding contrary to petitioner's allegation. The first two facts are consistent with his allegation because if he delivered his petition to the mailbox and it was not mailed, as he contends, then his account would not have been debited and the intended recipients would not have received it. The third fact also is consistent with petitioner's allegation because he asserted the mail log was not present when he delivered his petition to the mailbox and so an absence of an entry for his petition in the log makes sense. Finally, the fourth fact does not rebut petitioner's

6

Id., ex. A, p. 22, ll. 8-10, p. 56, ll. 10-13. Id., ex. A, p. 33, ll. 15-21, p. 56, ll. 14-21.

7

Caldwell v. Amend, 30 F.3d 1199, 1202 (9th Cir. 1994) (quoting Faile v. Upjohn Co., 988 F.2d 985, 989 (9th Cir. 1993)). The rule announced in Caldwell applies to pro se petitioners and petitioner was pro se at the time he alleges he deposited his petition in his prison's mailbox.

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allegation because the mail clerk testified she was not the prison official who collected mail from the mailbox and only reviewed mail after it was brought to her office by that official.9 She acknowledged she would not have known if petitioner's petition had been misplaced between the mailbox and her desk.10 Respondents have not rebutted petitioner's allegation. Consequently, the court accepts it as correct.11 B. Diligence The magistrate judge found petitioner was not diligent in following up on his petition after he deposited it in the mailbox. In making that finding, the magistrate judge observed "Petitioner offers no explanation why he did not notice whether his inmate account statement was debited for the postage for mailing the Petition for Review."12 The magistrate judge's reasoning is not convincing. Contrary to the magistrate judge's suggestion, petitioner was not asked why he did not notice whether his inmate account was debited and so his failure to explain that is not surprising. Looking beyond petitioner's testimony, Planette's testimony, which was not rebutted by any of respondents' witnesses, explains why a failure by petitioner to notice his account's balance would not show lack of diligence. According to Planette, inmates did not receive

9

Doc. 84, ex. A, p. 76, l. 9 - p. 77, l. 15. Id., ex. A, p. 77, ll. 11-15. Caldwell, 30 F.3d at 1202. Doc. 73, p. 15.

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11

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copies of their account statements "as a matter of course" but had to request and pay for them.13 There is no evidence petitioner actually received statements. The magistrate judge gave an additional reason for concluding that petitioner had not been diligent: Respondents presented evidence demonstrating that Petitioner signed the incoming legal mail log, dated June 10, 2000 ...[, which] proves Petitioner received the Court of Appeals letter to the Superior Court indicating that his Petition for Review had been dismissed on June 7, 2000[,] for failure to timely file a Petition for Review with the Arizona Supreme Court. At this juncture, Petitioner was on notice that the Arizona Supreme Court was not considering a Petition for Review, and that state proceedings were not otherwise pending.14

This court finds the analysis unpersuasive. Assuming petitioner actually received the letter from the court of appeals to the superior court, a fact he disputes,15 it would not have effectively notified him of the status of his petition to the supreme court. The magistrate judge implies the letter said the petition to the supreme court was dismissed for failure to timely file it, but the letter simply says enclosed is a "Certified Copy of ORDER denying review" without saying what was denied or why.16 Moreover, the order enclosed with the letter said nothing about the timeliness of the petition to the supreme court and simply set forth the decision by the court of appeals on petitioner's appeal from superior court.17

13

Doc. 84, ex. A, p. 51, ll. 4-6. Doc. 73, p. 15. Doc. 84, ex. A., p. 59, ll. 21 - p. 60, l. 1. Id., ex. E. Id., ex. A, p. 69, l. 19 - p. 70, l. 2.

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15

16

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There are two other issues related to petitioner's diligence that were not addressed by the magistrate judge, but which were explored at the evidentiary hearing. The first is whether petitioner should have noticed when he did not receive a postage receipt. The second is whether his eighteen-month delay before inquiring about his petition was too long. According to Planette, inmates did not consistently receive postage receipts, and "there was no reason to panic" if no receipt were returned.18 As for the delay, Planette testified the supreme court often takes eighteen months to consider a petition.19 Given Planette's testimony, which was not challenged by respondents' witnesses, the court concludes petitioner's failure to ask about the postage receipt and eighteen-month wait to inquire about his petition do not establish a lack of diligence. C. Timeliness The "mailbox rule" applies,20 because the court has credited petitioner's allegation that he deposited his state-court petition in his prison's mailbox on May 15, 2000, and the record reflects he diligently followed up on that petition. Under that rule, AEDPA's statute of limitations was tolled from May 15, 2000, to December 26, 2001, when statecourt proceedings ended. No time ran against the statute before May 15, 2000, and he filed his habeas petition in this court within one year of December 26, 2001. Thus, his petition is timely. IV. CONCLUSION

18

Id., ex. A, p. 50, ll. 18-24. Id., ex. A, p. 35, l. 23 - p. 36, l. 5. Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001).

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For the reasons set out above, the magistrate judge's report and recommendation at docket 73 is REJECTED. This matter is returned to the docket of the magistrate judge for further proceedings. If Magistrate Judge Sitver is no longer on re-call status, the Clerk will please refer this matter to another magistrate judge. DATED at Anchorage, Alaska, this 3rd day of May, 2006.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT COURT JUDGE

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