Opinion
CV 21-00217-TUC-JCH (LAB)
02-03-2022
Jose Castillo-Torres, Petitioner, v. David Shinn; et al., Respondents.
REPORT AND RECOMMENDATION
Leslie A. Bowman United States Magistrate Judge
Pending before the court is a petition for writ of habeas corpus, constructively filed on May 20, 2021, by Jose Castillo-Torres, an inmate currently held in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1, p. 15)
The petitioner placed his petition in the prison mailing system on this day. (Doc. 1, p. 15)
Pursuant to the Rules of Practice of this court, the action was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2; (Doc. 5)
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition because it is time-barred.
Summary of the Case
“Following a jury trial, [] Castillo-Torres was convicted of six counts of child molestation and sentenced to concurrent, seventeen-year terms of imprisonment.” (Doc. 8-1, p. 7)
On direct appeal, Castillo-Torres argued that (1) “the trial court erred in precluding the results of a psychosexual evaluation that showed he did not have a paraphilia such as pedophilia or another mental problem” and (2) the trial “court erred by precluding the fact that the victim's father had prior felony convictions specifically for assault.” (Doc. 8-1, p. 8) The Arizona Court of Appeals affirmed his convictions and sentences on February 2, 2017. (Doc. 8-1, pp. 6-10) On August 2, 2017, the Arizona Supreme Court denied review. (Doc. 8-1, p. 66) Castillo-Torres did not file a petition for writ of certiorari with the U.S. Supreme Court.
Previously, on May 11, 2016, Castillo-Torres filed a notice of post-conviction relief in the trial court. (Doc. 8-1, p. 68) The matter was stayed while the direct appeal was pending. (Doc. 8-1, p. 72) Castillo-Torres filed another notice of post-conviction relief on February 16, 2017. (Doc. 8-1, p. 74) The post-conviction relief stay was lifted on September 11, 2017. (Doc. 8-1, p. 78) On February 16, 2018, appointed counsel notified the court that he could not find any colorable issues to raise and requested an opportunity for Castillo-Torres to file a petition pro se. (Doc. 8-1, pp. 81-82)
In his petition and amended petition, Castillo-Torres claimed that (1) trial counsel was ineffective for failing to (a) “investigate and seek admission of the victim's motivation to lie, ” (b) “impeach the victim with inconsistent statements, ” and (c) “object to the omission of a jury instruction regarding sexual motivation;” (2) trial counsel and appellate counsel were ineffective for “failing to challenge the constitutionality of A.R.S. s 13-1410;” and (3) the jury should have been instructed that “the burden of proving sexual intent . . . rested with the State” because the definition of “sexual contact” under A.R.S. s 13-1401(A)(3) was amended. (Doc. 8-2, pp. 5-6) The trial court denied the petition and amended petition on January 4, 2019. (Doc. 8-2, p. 9) The Arizona Court of Appeals denied review on April 8, 2019. (Doc. 8-2, p. 96)
Castillo-Torres filed another notice of post-conviction review in May of 2019, again raising the issue of recent amendments to the law. (Doc. 8-2, p. 96) The notice was summarily dismissed because the issue had already been resolved in the previous post-conviction relief proceeding. Id. Castillo-Torres filed an objection, but the trial court affirmed its earlier ruling. (Doc. 8-2, p. 97) On December 12, 2019, the Arizona Court of Appeals granted review but denied relief. (Doc. 8-2, p. 95) Castillo-Torres did not file a petition for review with the Arizona Supreme Court. (Doc. 8-2, pp. 98, 104)
On May 20, 2021, Castillo-Torres constructively filed in this court the pending petition for writ of habeas corpus. (Doc. 1, p. 15) He argues that (1) trial counsel “refused to conduct any semblance of pretrial investigation that would have exposed fallacies in the prosecution account of events and their timing” and (2) the prosecutor suppressed exculpatory DNA evidence and evidence of the victim's prior bad acts. (Doc. 1, pp. 5, 7)
The respondents filed an answer on July 22, 2021, in which they argue, among other things, that the petition is time-barred. (Doc. 8) They are correct. The court does not reach the respondents' alternate allegations of error.
Castillo-Torres did not file a timely reply to the respondents' answer.
Discussion
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, however, must be filed within the applicable limitation period or it will be dismissed. The statute reads in pertinent part as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(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 applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
The one-year limitation period applies to each claim in a habeas corpus petition on an individual basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). The limitation period for both pending claims was triggered on “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). The court reaches this conclusion based on the nature of the claims and Castillo-Torres's failure to assert a different triggering date. (Doc. 1, pp. 13-14)
On direct appeal, the Arizona Court of Appeals affirmed Castillo-Torres's convictions and sentences on February 2, 2017. (Doc. 8-1, pp. 6-10) On August 2, 2017, the Arizona Supreme Court denied review. (Doc. 8-1, p. 66) Castillo-Torres then had 90 days to petition the U.S. Supreme Court for review. Sup. Ct. R. 13. When he did not do so, his judgment became final on the deadline, Tuesday, October 31, 2017. See Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999).
Ordinarily the one-year limitation period would begin running the next day, but Castillo-Torres's first post-conviction relief proceeding was pending at this time. See 28 U.S.C. § 2244(d)(2). Assuming the limitation period was tolled during all of his post-conviction relief proceedings, tolling ended on December 12, 2019. Id; (Doc. 8-2, p. 95) On that date, the Arizona Court of Appeals granted review of the trial court's order summarily dismissing Castillo-Torres's final notice of post-conviction relief but denied relief. (Doc. 8-2, pp. 95-97) No petition for review was filed with the Arizona Supreme Court. The limitation period began running the next day and expired on December 12, 2020. See 28 U.S.C. § 2244(d)(2). The pending petition for writ of habeas corpus was constructively filed on May 20, 2021. (Doc. 1, p. 15) It is time-barred.
In the pending petition, Castillo-Torres argues that the limitation period is still tolled pursuant to 28 U.S.C. § 2244(d)(2) because he has a Special Action pending. (Doc. 1, p. 13) He attached to his petition a document entitled “Reply to No Response by the State-Special Action” (Doc. 1-2, p. 2) It was apparently received by the state court on September 23, 2019. (Doc. 8-2, p. 104)
Although Castillo-Torres uses the term “Special Action” in the caption, the document appears to be a reply that Castillo-Torres filed in support of his petition for review with the Arizona Court of Appeals, 2CA CR 2019-0178-PR. (Doc. 1-2, p. 2) He asserts in that filing that the state did not file a timely response to his petition for review, and he moves for a “Special Action” in the form of “summary judgment” in his favor. Id. That petition for review was resolved by the Arizona Court of Appeals on December 12, 2019. (Doc. 8-2, p. 95) It does not appear that the appellate court construed the reply as a “Special Action.” Id. It does not appear that Castillo-Torres filed a separate petition for a Special Action. The respondents assert that they have examined the court record and find nothing pending. (Doc. 8, pp. 9-10) This court concludes that a Special Action is not currently pending, and statutory tolling does not apply.
In the alternative, the court finds that even if a Special Action were pending, the limitation period is not tolled. “Special actions, do not toll the AEDPA limitations period because they are not ‘application[s] for State post-conviction or other collateral review with respect to the pertinent judgment or claims' within the meaning of § 2244(d)(2).” Casteel v. Ryan, 2013 WL 3805135, at *7 (D. Ariz. 2013); see also Proper v. Phoenix City Prosecutor's Off., 2020 WL 3233996, at *3 (D. Ariz. 2020), report and recommendation adopted, 2020 WL 3197343 (D. Ariz. 2020).
Castillo-Torres further argues that he has made a claim “under actual innocence.” (Doc. 1, p. 13) Under certain circumstances, a claim of “actual innocence” serves as a “gateway through which a petitioner may pass whether the impediment is a procedural bar or expiration of the statute of limitations.” Stewart v. Cate, 757 F.3d 929, 937-938 (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 unless the court is also satisfied that the trial was free of non-harmless constitutional error, the Court may consider the petition on the merits.” Stewart, 757 F.3d at 937-938. (punctuation modified). “The Supreme Court has cautioned, however, that tenable actual-innocence gateway pleas are rare.” Id. “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. The court must “assess how reasonable jurors would react to the overall, newly supplemented record, including all the evidence the petitioner now proffers.” Stewart, 757 F.3d at 938 (punctuation modified).
Castillo-Torres, however, does not present any new evidence undermining his convictions. He alleges that the “prosecuting attorney suppressed “DNA samples taken from the Accuser's clothing and person that would demonstrate no physical contact thereby confuting presumption of guilt asked of the jury to convict.” (Doc. 1, p. 7) He does not, however, present any proof that DNA evidence was ever taken. The respondents affirmatively state that “the record contains nothing that indicates that DNA samples were taken from the victim's clothing, that any such samples were ‘exculpatory,' or that they were ‘suppressed' as Castillo-Torres now asserts.” (Doc. 8, p. 18) It is possible that Castillo-Torres is simply arguing that DNA samples should have been taken, and if they had been, they would have proved exculpatory. Castillo-Torres's showing on the issue of actual innocence is insufficient to trigger equitable tolling.
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition for writ of habeas corpus. (Doc. 1) It is time-barred.
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response without permission from the District Court.