Opinion
CV-22-01111-PHX-SPL (MTM)
02-28-2023
Rafael Pulido Quiroz, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
MICHAEL T. MORRISSEY, JUDGE
Petitioner Quiroz has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. 1.
I. SUMMARY OF CONCLUSION
On April 19, 2019, Petitioner was sentenced to a term of imprisonment for child sex trafficking. On June 30, 2022, Petitioner filed his habeas petition. Because the Petition is untimely by nearly two years and no grounds for statutory or equitable tolling exist, the Court recommends the Petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction and Sentencing
On February 8, 2019, Petitioner pled guilty in Maricopa County Superior Court to child sex trafficking, attempted child prostitution, and sexual conduct with a minor. Doc. 8-1 at 19-24. On April 19, 2019, Petitioner was sentenced to a 10-year prison term for the child sex trafficking conviction and probation on the other convictions. Id. at 61.
B. Post-Conviction Relief
On July 9, 2021, Petitioner filed a notice of post-conviction relief (“PCR”). Id. at 63. On July 22, 2021, the PCR Court dismissed the PCR proceeding as untimely “by almost two years.” Id. at 69. On August 3, 2021, Petitioner filed a motion challenging the PCR Court's dismissal of his PCR proceeding. Id. at 72. On September 22, 2021, the PCR Court, construing the motion as a motion to reconsider, denied the motion. Id. at 112. On January 25, 2022, Petitioner filed a “Motion for Deposition Hearing.” Id. at 114. On February 16, 2022, the PCR Court denied the motion. Id. at 118.
Petitioner filed a petition for review with the Arizona Court of Appeals, seeking review of the PCR Court's order denying his “Motion for Deposition Hearing.” Id. at 120. On March 17, 2022, the Arizona Court of Appeals dismissed the petition for review as not seeking review of the PCR court's decision on the petition for PCR relief. Id.
III. PETITION FOR WRIT OF HABEAS CORPUS
On June 30, 2022, Petitioner filed a Petition for Writ of Habeas Corpus raising two grounds for relief. Doc. 1. This Court dismissed Ground Two for failure to assert a federal constitutional violation and required Respondent to answer Ground One. Doc. 5 at 2. As stated in the Court's order:
In Ground One, Petitioner asserts his rights under the Fifth, Eighth, Ninth, and Fourteenth Amendments were violated because one of his codefendants was promised a plea agreement “due to prior agreements” that the co-defendant would “help convict” Petitioner, and Petitioner was “automatic[al]ly entered into a plea agreement.”Id. at 1.
IV. TIMELINESS
A. Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), this Court may review petitions for a writ of habeas corpus from individuals held in custody under a statecourt judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). The AEDPA imposes a one-year statute of limitations for state prisoners to file habeas petitions. 28 U.S.C. § 2244(d); Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1059 (9th Cir. 2007). The timeliness of a habeas petition is a threshold issue for the Court to resolve. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). Under AEDPA, the one-year limitation runs from “the latest of . . . 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). Because Petitioner pled guilty, his PCR proceeding was “of-right” rather than collateral review, and the statute of limitations did not begin to run until “the conclusion of the [Rule 33] of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review.” Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007).
B. The Petition is Untimely
Petitioner was sentenced on April 19, 2019. Doc. 8-1 at 61. To timely file a PCR petition under Arizona law, Petitioner must have filed a PCR notice within 90 days from the date of sentencing. See Ariz. R. Crim. P. 33.4(b)(3)(A). Because Petitioner did not file a PCR notice within the 90-day window, his conviction became final at the conclusion of that period, on July 18, 2019. See 28 U.S.C. § 2244(d)(1)(A); Summers, 481 F.3d at 711. The AEDPA statute of limitations expired one year later, on July 20, 2020. See 28 U.S.C. § 2244(d). Petitioner did not file his habeas petition until June 30, 2022. Doc. 1. The Petition is therefore untimely by nearly two years.
C. Statutory Tolling
The one-year limitations period is statutorily tolled for the period “during which a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). A PCR petition filed after the expiration of the AEDPA one-year statute of limitations does not restart the limitations period, however. See Ford v. Gonzalez, 683 F.3d 1230, 1237 n.4 (9th Cir. 2012). In addition, a state petition that is not filed within the state's required time limit is not “properly filed,” and is therefore not entitled to statutory tolling. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post- conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under the AEDPA's tolling provision).
Petitioner filed his PCR notice on July 9, 2021 (Doc. 8-1 at 63). The AEDPA statute of limitations period had expired a year earlier, on July 20, 2020. Because Petitioner's PCR proceeding did not restart the expired AEDPA limitations period, see Ford, 683 F.3d at 1237, n.4, Petitioner is not entitled to statutory tolling.
Moreover, Petitioner's PCR notice was untimely under Arizona law and thus would not toll the AEDPA limitations period, even if it were filed before the limitations period ended. See Pace, 544 U.S. at 414. The PCR Court found the PCR notice was untimely “by almost two years” and Petitioner did not “assert substantive claims and adequately explain the reasons for their untimely assertion.” Doc. 8-1 at 69-70. Petitioner's untimely PCR notice was thus not “properly filed” and did not toll the statute of limitations. See Pace, 544 U.S. at 414; see also Allen, 552 U.S. at 6.
D. Equitable Tolling
Courts have equitably tolled AEDPA's statute of limitations in certain circumstances. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). Equitable tolling applies if a petitioner shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Ford, 683 F.3d at 1237 (internal quotation marks and citation omitted). “[Extraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time and the extraordinary circumstances [must be] the cause of the prisoner's untimeliness.” Id. (citation omitted). Petitioner bears the burden of establishing equitable tolling's requirements. Pace, 544 U.S. at 418.
Petitioner has not asserted or shown that extraordinary circumstances prevented him from filing a timely habeas petition. Moreover, because Petitioner waited over two years after sentencing to initiate PCR proceedings, and over three years to file the instant habeas petition, he has not demonstrated he diligently pursued his rights to warrant equitable tolling. See Ford, 683 F.3d at 1237.
Petitioner also does not assert that he is actually innocent. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or expiration of the AEPA statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 383-84 (2012). “Actual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615 (1998). Because Petitioner is not entitled to statutory tolling and he has not asserted any basis for equitable tolling, no exception applies to excuse the untimely filing of Petitioner's habeas petition.
V. CONCLUSION
The Court concludes that Petitioner's habeas petition is untimely without excuse. The record is sufficiently developed, and the Court finds an evidentiary hearing is unnecessary for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS RECOMMENDED the Petition (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED Petitioner's “Motion to Strike and Move for Deliberations with This Court” be denied. Doc. 9 at 1.
IT IS FURTHER RECOMMENED a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. \Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.