Opinion
CV 23-00439 PHX ROS (CDB)
06-07-2023
Armando Rodriguez, Petitioner, v. Ryan Thornell, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
TO THE HONORABLE ROSLYN O. SILVER:
Petitioner Armando Rodriguez seeks relief from his state convictions and sentences pursuant to 28 U.S.C. § 2254. Respondents have answered the petition (ECF No. 9), and Rodriguez has docketed a reply in support of his petition (ECF No. 10).
I. Background
A grand jury indictment returned March 7, 2014, charged Rodriguez with three counts of sexual conduct with a minor, three counts of kidnapping, three counts of aggravated assault, three counts of attempted sexual conduct with a minor, two counts of sexual abuse of a minor, two counts of child molestation, and one count of furnishing obscene materials to a minor. (ECF No. 9-1 at 3-9). On August 31, 2017, Rodriguez signed a written plea agreement and entered guilty pleas according in accordance with the plea agreement. (ECF No. 9-1 at 14-18, 20-22). In the plea agreement Rodriguez agreed to plead guilty to one count of child molestation and two counts of attempted child molestation in exchange for dismissal of the other counts of the indictment and the imposition of a presumptive sentence of one 17-year term in prison and two lifetime terms of probation, and in return the State agreed to dismiss the other 14 counts of the indictment. (ECF No. 9-1 at 14-17). On November 3, 2017, Rodriguez was sentenced to the presumptive term of 17 “calendar years” with credit for 1334 days served prior to the imposition of sentence, followed by two terms of lifetime supervised probation with sex offender conditions. (ECF No. 9-1 at 23-27).
On November 29, 2017, Rodriguez initiated his first “of right” challenge to his convictions and sentence by filing a timely notice of post-conviction relief, and he asked for the appointment of counsel. (ECF No. 9-1 at 30-32). Counsel was appointed and on April 24, 2018, counsel filed a notice stating they had searched the record but could find no colorable claims to raise on Rodriguez's behalf. (ECF No. 9-1 at 34-37). Counsel noted, inter alia,
On May 6, 2016, the Court conducted a settlement conference. At that conference, defendant was advised as to the benefit of the plea agreement and the potential consequences of proceeding to trial. (Tr. 5/6/16.)
On August 24, 2017, the Court conducted a second settlement conference. At that conference, defendant was advised as to the benefit of the new plea agreement and the potential consequences of proceeding to trial. (Tr. 8/24/17 at 10-27.) The Court also advised the defendant that although the plea agreement stipulated to a prison sentence of 10-17 years, 15-17 years would be the likely sentence. (Id. at 27.)
At change of plea proceedings, defendant indicated that he understood the plea agreement and understood the rights he was waiving by forgoing trial and entering a plea of guilty. (Tr. 8/31/ l 7 at 6, 11.) Factual bases for amended counts 1, 13 and 16 were provided by counsel for defendant. (Id. at 13-15.) Defendant agreed with counsel's factual bases. (Id.) Based on defendant's pleas and avowals, the Court found defendant's pleas of guilty knowingly and intelligently made and the pleas were accepted.(ECF No. 9-1 at 34-36).
Rodriguez filed a pro per petition on August 28, 2018, alleging hist post-conviction counsel was ineffective for failing to review the transcripts from the grand jury proceedings, and Rodriguez asked the post-conviction court to conduct an “independent review” for “reversible error.” (ECF No. 9-1 at 39-41). The State responded that Rodriguez had failed to demonstrate his post-conviction counsel was ineffective under the standard articulated in Strickland v. Washington, 466 U.S. 671 (1984), and also asserted Rodriguez had waived any challenge to the grand jury proceedings by pleading guilty. (ECF No. 9-1 at 43-56). In his reply in support of his post-conviction petition, Rodriguez argued he could not prove his ineffective assistance of counsel claim because he did “not receiv[e] his ENTIRE Criminal file,” specifically, “the GRAND JURY MINUTES to compare with the police reports and indictment for fundamental error.” (ECF No. 9-1 at 59-60).
The State noted that the victim was Rodriguez's “de facto” stepdaughter, that the abuse began when the victim was seven years of age and continued until she was 13, and that the victim disclosed the abuse at the age of 14. (ECF No. 9-1 at 44-45). The State also noted it had filed an allegation of prior felony convictions and alleged multiple offenses not committed on the same occasion. (ECF No. 9-1 at 46).
The state habeas trial court dismissed the post-conviction petition on May 7, 2019. (ECF No. 9-1 at 62-67). The court found and concluded:
1. Rodriguez waived any non-jurisdictional defect claims by entering into a plea agreement;
2. Rodriguez was not entitled to relief because he did not “show with specificity where his counsel performed below a prevailing standard or competency and also that prejudice resulted from his counsel's actions;”
3. “Rodriguez explicitly waived any right to challenge the grand jury proceedings;”
4. Remand to the grand jury would not have altered the outcome of his case because his statements to police were determinative and his defense that the seven-year-old victim initiated the sexual contact was “not a defense to the offenses charged;”
5. Rodriguez was not entitled to an independent review of the record for reversible error by the court;
6. The record demonstrated that, as a matter of law, Rodriguez “did not present a colorable claim that his counsel's representation fell below prevailing objective standards.”(Id.).
Rodriguez did not seek review of the denial of post-conviction relief in the Arizona Court of Appeals.
On July 28, 2021, more than two years after the state habeas trial court denied postconviction relief on May 7, 2019, Rodriguez filed a pro se second notice requesting postconviction relief. (ECF No. 9-1 at 69-71). In this petition Rodriguez alleged the judge who conducted his settlement conference on May 6, 2016, had already found him guilty, in violation of Arizona Rule of Professional Conduct 42 and “other major components” of the United States and Arizona Constitutions and the Arizona Rules of Criminal Procedure (ECF No. 9-2 at 9-10). Rodriguez asserted the judge who conducted the settlement conference knew the prosecutor “on a different level” and “joined forces” with the prosecutor “to overpower the defense and his counsel” which resulted in a miscarriage of justice. (ECF No. 9-2 at 11-12). Rodriguez also summarily asserted his counsel had “a duty to make reasonable investigations or to make a reasonable decision as to facts v. hearsay,” and that “[t]he police report in itself will demonstrate lies and made up fairytail [sic] stories. Counsel for the defendant did nothing.” (ECF No. 9-2 at 13). Rodriguez stated he was “willing” to let the State “keep their felony conviction,” but asked that his sentence be ameliorated. (ECF No. 9-2 at 14).
The state habeas trial court dismissed the second petition for post-conviction relief in an order entered February 1, 2022. (ECF No. 9-4 at 3-6). The court concluded the petition was untimely and successive. (Id.). The court additionally found Rodriguez had failed to raise a colorable claim of newly discovered evidence, that he had not made a cognizable claim of innocence, and that no “significant change of law” had occurred which would allow the consideration of an untimely or successive petition. (Id.).
Rodriguez sought review in the Arizona Court of Appeals, arguing his sentence should have been corrected pursuant to a “change of statute,” i.e., Arizona Revised Statutes § 13-702, and further asserting the Eighth and Fourteenth Amendments and “Due Process and equal protection of the law MUST apply to [him].” (ECF No. 9-4 at 8-10.) The Arizona Court of Appeals granted review and denied relief on October 25, 2022. (ECF No. 9-4 at 19-20). Rodriguez sought review in the Arizona Supreme Court, which denied the petition for review on February 2, 2023. (ECF No. 9-4 at 22-23, 25).
The instant § 2254 petition was placed in the prison mailing system on March 9, 2023, and Rodriguez filed a supplemental petition (ECF No. 5) on March 27, 2023. The Court ordered Respondents to answer the following claims:
1. Rodriguez was denied due process and equal protection, in violation of the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments, because the State “manipulated the facts and used malicious vindictiveness,” and he never had an opportunity to present his version of events.
2. Rodriguez was convicted pursuant to an illegal plea agreement that “manipulated the court[']s mind” to aggravate his sentence, in violation of the Fifth Amendment.
3. Rodriguez's sentence was “extremely excessive” in violation of the Fifth, Eighth, and Fourteenth Amendments.
4. Rodriguez was subjected to double jeopardy in violation of the Fifth Amendment.(ECF No. 6).
II. Analysis
Rodriguez's petition for federal habeas corpus relief is barred by the statute of limitations provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations on habeas petitions begins to run on “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. Id. at § 2244(d)(2).
To assess the timeliness of the pending petition, the Court must first determine the date on which Rodriguez's conviction became “final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). By pleading guilty, Rodriguez was precluded from pursuing a direct appeal in the Arizona Court of Appeals. See Ariz. Rev. Stat. § 13-4033(B). Instead, Rodriguez was entitled to seek review of his conviction and sentence in an “of-right” proceeding pursuant to Rule 32 (now Rule 33) of the Arizona Rules of Criminal Procedure, the functional equivalent of a direct appeal. See Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007). Rodriguez timely filed a state action for post-conviction relief, his first “of right” appeal. This action was dismissed by the state habeas trial court on May 7, 2019, and Rodriguez did not seek review in the Arizona Court of Appeals. Accordingly Rodriguez's state conviction became final upon the conclusion of direct review on July 8, 2019, when the time for seeking review of the state habeas trial court's decision denying Rodriguez's “of right” proceedings expired. See Summers, 481 F .3d at 711, 716-17.
Accordingly, the AEDPA's one-year statute of limitations for seeking federal habeas relief began to run on July 9, 2019, and expired on July 10, 2020 (July 9, 2020 was a Sunday). Rodriguez's federal habeas action, signed and placed in the prison mailing system on March 9, 2023, was filed more than three years after the statute of limitations expired.
The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. See 28 U.S.C. § 2244(d)(2). Rodriguez initiated a second state action for postconviction relief on July 20, 2021, a year and ten days after the statute of limitations had run on the federal habeas action; Rodriguez's second post-conviction action did not revive or restart the limitations period with regard to his federal habeas petition. See Larson v. Soto, 742 F.3d 1082, 1088 (9th Cir. 2013); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Additionally, Rodriguez's second Rule 32 action was not a “properly filed” action for state post-conviction relief, as the state habeas trial court found and the Arizona Court of Appeals affirmed, the second petition was successive and untimely. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (holding that a state petition that is not filed within the state's required time limit is not “properly filed.”). See also Allen v. Siebert, 552 U.S. 3, 5-7 (2007) (holding that the Pace rule applies even where there are exceptions to the state-court filing deadlines, and reaffirming that a state court's rejection of a petition as untimely is “the end of the matter.”).
The one-year statute of limitations for filing a federal habeas petition may be equitably tolled if extraordinary circumstances beyond the petitioner's control prevented them from filing their petition on time. See Holland v. Florida, 560 U.S. 631, 645 (2010); Gibbs v. Legrand, 767 F.3d 879, 884-85 (9th Cir. 2014). To be entitled to equitable tolling, the petitioner must establish “due diligence,” i.e., that he diligently pursued his claims and that “some extraordinary circumstance” beyond his control “prevented' the timely filing of his habeas petition. Smith v. Davis, 953 F.3d 582, 595 (9th Cir. 2020) (emphasis in original). “[W]hether an impediment caused by extraordinary circumstances prevented timely filing is a ‘causation question' that requires courts to evaluate a petitioner's diligence in all time periods-before, during, and after the existence of an ‘extraordinary circumstance'-to determine whether the extraordinary circumstance actually did prevent timely filing.” Id. As to the first element, “[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (internal citations and quotations omitted). As to the second element, “[e]quitable tolling is applicable only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quotations and citations omitted). The “extraordinary circumstance” must be attributable to an external force rather than a petitioner's lack of diligence or his lack of legal knowledge. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling is also available if the petitioner establishes their actual, factual innocence of the crimes of conviction. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014).
When an otherwise time-barred habeas petitioner “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial,” and the petitioner also asserts a colorable claim that his state criminal proceedings involved non-harmless constitutional error, the Court may consider the petition on the merits. Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014), citing Schlup v. Delo, 513 U.S. 298, 329 (1995). The Supreme Court has cautioned, however, that “tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. Rodriguez does not present any evidence of factual innocence.
Equitable tolling is to be rarely granted. See, e.g., Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014); Waldon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). It is the petitioner's burden to establish that equitable tolling is warranted in his case. See Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010); Waldon-Ramsey, 556 F.3d at 1011; Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2004). To be entitled to equitable tolling Rodriguez must show “extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Porter, 620 F.3d at 959 (emphasis added and internal quotations omitted). See also Bryant v. Arizona Att'y Gen., 499 F.3d 1056, 1060 (9th Cir. 2007) (holding the petitioner must establish a “causal connection” between the extraordinary circumstances and their failure to file a timely petition).
In his reply Rodriguez asserts:
The (A.A.G.) presented material of “untimeliness” and that the fact that the court should rule on the merits of this fact. However, the petitioner wants to display that the petitioner filed a post-conviction petition under NEWLY DISCOVERED MATERIAL FACTS. So the fact that the (A.A.G.) relied on the untimeliness is irrevelant [sic].(ECF No. 10 at 2). Rodriguez then contends he was subjected to “illegal practices” prior to “any court appearance” and that he was “in fact in custody of a Federal Detention facility pending deportation when a state detective came into contact” with him “to conduct an ‘off the record interview,'” without advising Rodriguez of his Miranda rights. (ECF No. 10 at 3-4).
The filing of Rodriguez's second state post-conviction action two years after his first state post-conviction was denied demonstrates a lack of diligence. The filing of the second petition after the AEDPA's one-year statute of limitations expired could not and did not restart the statute of limitations with regard to his federal habeas petition. Additionally, the state courts found the second petition was successive and untimely and that Rodriguez failed to establish the existence of any newly discovered material facts which would allow the state court to consider the claims raised in the second petition.
Rodriguez fails to assert any basis for equitable tolling of the statute of limitations. Rodriguez does not assert the existence of any extraordinary circumstances that were the cause of his failure to timely file a federal habeas petition or any extraordinary circumstances which made it impossible to file a petition within the statute of limitations. Accordingly, equitable tolling of the statute of limitations is not warranted in this matter.
III. Conclusion
Relief based on the claims stated in Rodriguez's federal habeas petition is barred by the AEDPA's statute of limitations. Rodriguez fails to proffer any legitimate reason why the statute of limitations should be equitably tolled and the Court should not proceed to consider the merits of his claims for relief.
Accordingly, IT IS RECOMMENDED that the amended petition seeking a federal writ of habeas corpus at ECF No. 1, as supplemented at ECF No. 5, be DENIED.
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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the 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 ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foil. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Rodriguez seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.