Opinion
CV-22-01952-PHX-MTL (MTM)
08-22-2023
Christian Salvador Turcios, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
Petitioner Christian Turcios has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
I. SUMMARY OF CONCLUSION
In May 2014, Petitioner pled guilty to multiple counts of molestation of a child and attempted molestation of a child, as well as attempted sexual exploitation of a minor and aggravated assault, all relating to six separate minor victims. On November 3, 2022, Petitioner filed the instant habeas petition. Because the petition is untimely by more than five years and Petitioner is not entitled to statutory or equitable tolling, the Court will recommend the petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction and Sentencing
On May 5, 2014, Petitioner pled guilty in Maricopa County Superior Court to two counts of attempted molestation of a child, two counts of molestation of a child, one count of attempted sexual exploitation of a minor, and one count of aggravated assault, all relating to six separate minor victims. Doc. 8-1 at 3-6 (plea agreement). On July 11, 2014, Petitioner was sentenced to two consecutive 15-year terms of imprisonment, followed by lifetime probation. Id. at 21-28 (sentencing minute entry).
B. Post-Conviction Relief
On September 30, 2014, Petitioner timely filed a PCR notice. Id. at 30-32. On August 28, 2015, Petitioner filed the PCR petition asserting that he had been “rushed” and “coerced” into accepting the plea agreement, in violation of his constitutional rights. Id. at 44-49. On January 14, 2016, the trial court dismissed the petition, finding that Petitioner had failed to present a colorable claim entitling him to relief. Id. at 70. On September 12, 2016, Petitioner requested an update on his case. Id. at 72-73. On September 19, 2016, the trial court ordered that Petitioner be mailed a copy of the court's January dismissal order. Id. at 75. On November 2, 2016, Petitioner filed a petition for review; while Petitioner wrote “In the Court of Appeals” in the heading of the petition, he filed the petition in the trial court. Id. at 77-79. Neither the trial court nor Petitioner took further action on the November 2, 2016, petition for review. Maricopa County Superior Court CR2012-101308, https://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp?caseN umber=CR2012-101308 (last visited August 22, 2023).
More than five years later, on February 22, 2022, Petitioner filed a second PCR notice asserting the existence of newly discovered material facts that probably would have changed the judgment or sentence. Doc. 8-1 at 81-83. On March 23, 2022, the trial court summarily dismissed the PCR notice for failing to allege any “newly discovered” facts. Doc. 8-2 at 3-4. On March 31, 2022, Petitioner filed a petition for review with the Arizona Court of Appeals. Id. at 6-9. On October 25, 2022, the Arizona Court of Appeals granted review and denied relief. Id. at 12-13. Petitioner did not seek review in the Arizona Supreme Court.
III. PETITION FOR WRIT OF HABEAS CORPUS
On November 3, 2022, Petitioner filed the present Petition under 28 U.S.C. § 2254. Doc. 1. As summarized by this Court:
Petitioner raises two grounds for relief. In Ground One, Petitioner contends he was denied due process in violation of the Fourteenth Amendment because his sentence was excessive for a first-time offender. In Ground Two, Petitioner asserts he was denied due process in violation of the Fourteenth Amendment because the State “use[d]” multiple prosecutions “for a related act” and because the indictment was duplicitous.Doc. 5 at 1-2.
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). Where a petitioner pleads guilty, a PCR proceeding is “of-right” rather than collateral review, and the statute of limitations does not begin to run until “the conclusion of the [Rule 33] of-right proceeding and review of that proceeding.” Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007).
B. The Petition is Untimely
Petitioner's conviction became final upon the conclusion of the time for seeking direct review. See 28 U.S.C. § 2244(d)(1)(A). Because Petitioner pled guilty, his PCR proceeding was of-right review under AEDPA. See Summers, 481 F.3d at 711. After the trial court dismissed his first PCR proceeding on January 14, 2016 (doc. 8-1 at 70), Petitioner had 35 days to file a petition for review with the Arizona Court of Appeals- until February 18, 2016. See Ariz. R. Crim. P. 32.9(c)(1)(A) (2018) (stating a petition for review may be filed within 30 days); Ariz. R. Crim. P. 1.3(a) (adding five days to the time period when service is effectuated by mail to the petitioner); Ariz. R. Crim. P. 1.3(a)(1) (stating the day starting the time period is excluded from time calculation). Therefore, Petitioner's convictions became final when the time for seeking further review concluded, on February 18, 2016. The AEDPA limitations period expired one year later, on February 18, 2017. See 28 U.S.C. § 2244(d). Petitioner filed the instant petition on November 3, 2022. Doc. 1. The petition is therefore untimely by more than five years.
Even assuming Petitioner did not have notice of the trial court's dismissal of his first PCR proceeding until September 19, 2016 (doc. 8-1 at 72-75), Petitioner had until October 24, 2016, to file his petition for review. Therefore, Petitioner's conviction became final when the time for seeking further review concluded, on October 24, 2016. Under this assumption, the AEDPA limitations period expired one year later, on October 24, 2017. See 28 U.S.C. § 2244(d). Petitioner filed the instant petition on November 3, 2022. Doc. 1. The petition is still therefore untimely by more than five years.
C. Statutory Tolling
The AEDPA 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 proceeding filed after the running of the AEDPA statute of limitations does not serve to restart the limitations period. See Ford v. Gonzalez, 683 F.3d 1230, 1237 n.4 (9th Cir. 2012).
Petitioner filed his second PCR notice on February 22, 2022. Doc. 8-1 at 81-83. Because the AEDPA limitations period had already expired on February 18, 2017, Petitioner's second PCR proceeding did not restart the expired limitations period. See Ford, 683 F.3d at 1237. Accordingly, Petitioner is not entitled to statutory tolling to excuse the untimely filing of the petition.
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 quotations and citations 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 v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Petitioner requests the Court find the petition timely because “some extraordinary type circumstances stood in [his] way.” Doc. 1 at 14. However, Petitioner makes no effort to support this conclusory statement with any supporting argument or facts. In particular, Petitioner has not explained why, in the nearly six-year period after the dismissal of his first PCR proceeding in 2016, and the filing of his habeas petition in November of 2022, he could not have prepared and filed a federal habeas petition before the expiration of the AEDPA limitations period. Petitioner has not shown he was pursuing his rights diligently. Accordingly, Petitioner has not shown an extraordinary circumstance existed which prevented him from timely filing the petition. Petitioner is not entitled to equitable tolling. See Ford, 683 F.3d at 1237; Pace, 544 U.S. at 418.
V. CONCLUSION
The Court concludes that Petitioner's habeas petition is untimely, and Petitioner is not entitled to statutory or equitable tolling to excuse the untimely filing.
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 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.