Opinion
No. CV-17-04215-PHX-DGC (ESW)
07-16-2018
Neftali Mendoza Soto, Petitioner, v. Charles Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Neftali Mendoza Soto's ("Petitioner") "Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus" (the "Petition") (Doc. 1). Petitioner is serving two concurrent ten-year prison terms after being convicted in the Superior Court of Arizona on two counts of aggravated driving under the influence. The undersigned has reviewed the parties' briefing (Docs. 1, 7, 8). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition as untimely.
I. BACKGROUND
In 2010, a jury found Petitioner guilty of two counts of aggravated driving under the influence. (Doc. 7-4 at 9). The trial court sentenced Petitioner to two concurrent ten-year prison terms that are to be served consecutively to the sentences imposed in three probation revocation cases. (Id.). On March 28, 2013, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 7-1 at 3-6). Petitioner did not seek further review by the Arizona Supreme Court. (Id. at 8).
On May 22, 2013, Petitioner filed a Notice of Post-Conviction relief ("PCR"). (Id. at 21-24). The trial court appointed Petitioner counsel, who could not find a colorable claim for relief. (Id. at 26-27). Petitioner submitted a pro se PCR Petition, which the trial court dismissed on December 4, 2014. (Doc. 7-4 at 2-4). Petitioner did not petition the Arizona Court of Appeals for review.
In March 2016, Petitioner filed a second PCR petition, which the trial court summarily dismissed as untimely. (Id. at 9-10, 17-20). On September 21, 2017, the Arizona Court of Appeals granted review, but denied relief. (Id. at 6-7). Petitioner did not petition the Arizona Supreme Court for further review. On November 7, 2017, the Arizona Court of Appeals issued its mandate. (Id. at 12).
On November 13, 2017, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief.
The Petition was docketed by the Clerk of Court on November 16, 2017. The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on November 13, 2017. (Doc. 1 at 11). Pursuant to the prison mailbox rule, the undersigned has used November 13, 2017 as the Petition's filing date. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) ("A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.").
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, a state prisoner must file his or her federal habeas petition within one year of the latest of:
The one-year statute of limitations for a state prisoner to file a federal habeas petition is codified at 28 U.S.C. § 2244(d).
A. The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
B. The date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the petitioner was
prevented from filing by the State action;28 U.S.C. § 2244(d)(1); see also See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) ("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases."). Yet equitable tolling is applicable only "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. The Statute of Limitations Began Running on May 3, 2013
In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's 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).
The Arizona Court of Appeals affirmed Petitioner's convictions and sentences on March 28, 2013. (Doc. 7-1 at 3-6). Petitioner had thirty days from March 28, 2013 to petition the Arizona Supreme Court for review of the decision. Ariz. R. Crim. P. 31.19(a). After adding five additional days pursuant to Ariz. R. Crim. P. 1.3(a), the deadline was May 2, 2013. Petitioner's convictions and sentences therefore became final on May 2, 2013, and AEDPA's limitations period began running on May 3, 2013.
On May 22, 2013, Petitioner filed his PCR Notice. (Doc. 7-1 at 21-24). The AEDPA limitations period was therefore suspended as of May 22, 2013. Twenty days, however, ran off the limitations "clock," leaving Petitioner with 345 days remaining to file a federal habeas petition. On December 4, 2014, the trial court dismissed the PCR Petition. (Doc. 7-4 at 2-4). Because Petitioner did not petition the Arizona Court of Appeals for review, the AEDPA's limitations period recommenced on December 5, 2014. See Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir. 2004) (rejecting a habeas petitioner's argument that statutory tolling applied during the period in time in which he could have filed a petition for certiorari review in the U.S. Supreme Court regarding state court's denial of post-conviction relief; stating that "[b]ecause [petitioner] never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never 'properly filed.'") (quoting Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000)); Gold v. Hennessy, CR 04-1252-PHX-JAT, 2006 WL 1516009, at *4 (D. Ariz. May 30, 2006) ("It follows that if a petition is not timely filed, then the interval is not tolled. . . . Thus, an appeal that is never filed cannot be considered timely; Petitioner cannot reap the benefit of AEDPA's tolling mechanism without actually filing her petition for review of the PCR denial."). As 345 days remained on the limitations "clock," Petitioner had until November 16, 2015 to file his federal habeas petition. Petitioner filed a second PCR Petition on March 18, 2016. (Id. at 17-20). Once the statute of limitations has expired, subsequent collateral review petitions do not "restart" the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Therefore, because Petitioner filed his second PCR Notice after the limitations period had expired on November 16, 2015, the second PCR Notice does not have any statutory tolling effect. As a result, the November 13, 2017 Petition (Doc. 1) is untimely unless equitable tolling applies.
In Arizona, a post-conviction relief ("PCR") proceeding becomes "pending" as soon as the notice of PCR is filed. Isley v. Ariz. Dep't of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004) ("The language and structure of the Arizona postconviction rules demonstrate that the proceedings begin with the filing of the Notice.").
The trial court's minute entry explicitly states that December 4, 2014 is the date the minute entry was electronically filed. (Doc. 7-4 at 2). Underneath this date is "12/02/2014," which Respondents use in calculating the limitations period. (Doc. 7 at 6). The Arizona Supreme Court has explained that the date in the upper corner of Maricopa County minute entries "is not necessarily the filing date. In most instances, it is the date the deputy clerk of the division first begins to type the minute entry. The typing may take more than one day. Sometimes it is the last date of typing of the minute entry." See Matter of Maricopa County Juvenile Action No . JS-8441 , 849 P.2d 1371, 1372 (Ariz. 1992).
The date 345 days from December 5, 2014 was Saturday, November 14, 2015. Pursuant to Rule 12 of the Rules Governing Section 2254 Cases and Fed. R. Civ. P. 6(a)(1)(C), the deadline to file a habeas petition was extended to Monday, November 16, 2015 as that is the next day that is not a Saturday, Sunday, or legal holiday.
B. Equitable Tolling Does Not Apply
It is a petitioner's burden to establish that equitable tolling is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) ("Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate."). As mentioned, a petitioner seeking equitable tolling must establish that: (i) he or she has been pursuing his or her rights diligently and (ii) that some extraordinary circumstances stood in his or her way. A petitioner must also show that the "extraordinary circumstances" were the "but-for and proximate cause of his [or her] untimeliness." Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001) (per curiam); see also Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., Johnson v. United States, 544 U.S. 295, 311 (2005) ("[W]e have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness.").
In the Petition, Petitioner states that he is a "Mexican national, indigent, imprisoned, a layman at law, and is impeded by the State of Arizona's closure of its prison law library in the year 1997 . . . ." (Doc. 1 at 6). To the extent that this statement may be construed as an argument for equitable tolling, it is without merit.
First, the lack of inmate assistance is not an extraordinary circumstance "given the vicissitudes of prison life." Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (rejecting petitioner's argument that delay in filing habeas petition was justified due to petitioner's "pro se status, a prison library that was missing a handful of reporter volumes, and reliance on helpers who were transferred or too busy to attend to his petitions justified the delay"). There is no indication in the record that the circumstances of Petitioner's incarceration made it "impossible" for Petitioner to timely file a federal habeas petition. Id. (finding that equitable tolling did not apply where there was "no indication in the record that [circumstances] made it 'impossible' for [prisoner] to file on time"); Norwood v. Lockyer, 390 F. App'x 762, 763 (9th Cir. 2010) ("limited law library access, being moved to different cells, temporary lockdowns" "do not show circumstances that are out of the ordinary for prison life or that would have made it 'impossible' to file on time").
Second, ignorance of the law is insufficient to warrant equitable tolling. See Johnson v. United States, 544 U.S. 295, 311 (2005) ("[W]e have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness"); Rasberry v. Garcia, 448 F.3d at 1154 ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.").
Johnson involved a collateral review proceeding filed by a federal prisoner under 28 U.S.C. § 2255. Section 2254 petitions and Section 2255 motions are treated the same for purposes of determining whether equitable tolling applies. United States v. Battles, 362 F.3d 1195, 1196-97 (9th Cir. 2004) ("The two sections have the same operative language and the same purpose. We fail to see any reason to distinguish between them in this respect.").
The undersigned finds that Petitioner has failed to show the existence of "extraordinary circumstances" that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a "prisoner must show that the 'extraordinary circumstances' were the cause of his untimeliness"). Accordingly, the undersigned does not find that equitable tolling applies in this case. The undersigned finds that the Petition (Doc. 1) is untimely. Finally, Petitioner makes no claim that the Court should apply the "actual innocence gateway" to excuse the untimeliness of the Petition. The undersigned recommends that the untimely Petition (Doc. 1) be dismissed with prejudice.
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the "actual innocence gateway" to federal habeas review that was applied to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518 (2006) extends to petitions that are time-barred under AEDPA.
IV. CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that the Petition (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's 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. Thereafter, 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. See Fed. R. Civ. P. 72.
Dated this 16th day of July, 2018.
/s/_________
Eileen S. Willett
United States Magistrate Judge