Opinion
CV 18-01306-PHX-DGC (MHB)
05-03-2019
Rudy Dominguez-Osorio, Petitioner, v. Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT:
On April 18, 2018, Petitioner Rudy Dominguez-Osorio, who is confined in the Arizona State Prison, Lewis Complex, Buckeye, Arizona, filed a pro se Petition to Seek Assistance of the Court, in the Northern District of California District Court. (Doc. 1.) In his pleading, Petitioner asserted his innocence and requested "assistance" from the Court in vacating his conviction. (Id.) Because Petitioner is confined in Arizona, the Northern District of California transferred Petitioner's case to this Court. (Doc. 6.) The Clerk of Court thereafter directed Petitioner to file a complaint or petition on the proper form, and provided Petitioner a blank petition for writ of habeas corpus form. (Doc. 3.) Petitioner was also provided an Application for In Forma Pauperis form, and was directed to respond to the notice of deficiencies within 28 days. (Doc. 4.)
On May 3, 2019, the Court construed Petitioner's initial filing as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and directed Petitioner fo file an amended petition within thirty (30) days, and furthermore directed Petitioner to pay the $5.00 filing fee or file a completed application to proceed in forma pauperis. (Doc. 9.) Petitioner's pro se Amended Petition for Writ of Habeas Corpus ("amended habeas petition") was ultimately filed on August 10, 2018. (Doc. 18.) Respondents filed a Limited Response on December 18, 2018. (Doc. 30.) Petitioner has not filed a Reply.
BACKGROUND
Petitioner was convicted in the Maricopa County Superior Court, State of Arizona, after a jury trial on seven felony counts: Count 1, second-degree murder, Count 2, assisting a criminal street gang, and Counts 3-6, aggravated assault. (Doc. 30-1, Exh. B at 4.) Petitioner also accepted a guilty plea to Count 7, misconduct involving weapons. (Id.) On July 27, 2011, Petitioner was sentenced to a total of 142 years in prison. (Id; Exh. O at 2.) He timely appealed his convictions and sentence to the Arizona Court of Appeals, and was appointed counsel. Appointed counsel subsequently filed an opening brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicated that he had searched the record and was unable to find any arguable question of law that is not frivolous, and requested that the appellate court review the proceedings for fundamental error. (Doc. 30-1, Exh. B at1-15.) Petitioner was given an opportunity to file a pro se supplemental opening brief. In his Supplemental Brief, Petitioner raised one issue, that the trial court erred by admitting gang evidence, and that the evidence introduced at trial was not sufficient to prove his actions were gang motivated. (Id. at Exh. C.)
Petitioner is formerly known as Qadir Hodari Al-Amin, and changed his name to Rudy Dominguez-Osorio sometime after trial. (Doc. 30 at 4.) Thus, most of the state court records reflect Petitioner's prior name.
On December 19, 2013, the Arizona Court of Appeals reviewed Petitioner's convictions and sentence for fundamental error and affirmed, although the Court modified his sentence on Count 2 by crediting Petitioner with 984 days of presentence incarceration credit. (Doc. 30-1, Exh. D.) Petitioner filed a Petition for Review in the Arizona Supreme Court, which was summarily denied on November 13, 2013. (Doc. 30-1, Exh. F.)
While Petitioner's appeal was pending, on January 17, 2012, Petitioner filed a Notice of Post-Conviction relief in the trial court. (Doc. 30-1, Exh. G at 1-3.) Appointed counsel then filed a request to extend the time to file a Rule 32 petition until the conclusion of Petitioner's direct appeal. (Id., Exh. I.) The trial court granted the request for additional time; however, it dismissed the Rule 32 proceedings with leave to re-file within 30 days following the conclusion of the direct appeal proceedings. (Id., Exh. J.) On December 13, 2013, Petitioner timely re-filed his Notice of PCR, and counsel was again appointed. (Id., Exhs. K-L.)
On July 7, 2014, Petitioner's appointed counsel then filed a Notice of Completed Review, in which she indicated that she had reviewed the transcripts, case history, and had spoken "extensively with the trial attorney," but that she found no issues to pursue. (Doc. 30-1, Exh. M.) Counsel requested that Petitioner be given 45 days to file a pro per petition for post-conviction relief. (Id.) On November 17, 2014, Petitioner filed a Memorandum in Support of Pro-Se Petition for Post-Conviction Relief. (Id., Exh. N at 1-14.) In his PCR petition, Petitioner raised two claims: (1) that he received ineffective assistance of trial counsel, in that she failed to properly investigate his case, failed to object to a faulty reasonable doubt instruction, and denied Petitioner his right to testify, and, (2) that he received ineffective assistance of appellate counsel. (Id.)
On April 22, 2015, the trial court issued its ruling, denying relief. As to Petitioner's claim of ineffective assistance of trial counsel, the court reasoned as follows:
While Defendant claims generally that counsel failed to properly investigate his case, the only specific allegations that Defendant brings out in support of this claim are his assertions that counsel failed to interview potentially exculpatory witnesses. As to each of those witnesses, Defendant presents only his own, speculative contentions as to what those witnesses would have testified to had they been called to testify at trial. In the absence of any additional, corroborative evidence (such as affidavits from one or more of the witnesses), Defendant's self-serving statements do not present a colorable claim of ineffective assistance of counsel for failure to properly investigate.
Defendant's next claim of ineffective assistance of counsel is based on his assertion that counsel failed to object to a "constitutionally deficient reasonable doubt instruction". Defendant fails, however, to establish the factual predicate that the instruction given was constitutionally deficient.
Accordingly, Defendant fails to state a colorable claim that counsel's failure to object was conduct that "fell below objectively reasonable standards".[](Doc. 30-1, Exh. Q at 1-3.)
Finally, Defendant contends that the trial counsel denied him his right to testify in his own behalf. Even accepting Defendant's contention as true (and the Court expresses significant doubt as to Defendant's inability to have presented this conflict to the Court at trial, if it in fact existed), Defendant has failed to make any showing as to how, if he had been allowed to testify, that testimony would have resulted in a different outcome.
As to Petitioner's claim that his appellate counsel was ineffective in not objecting to the reasonable doubt instruction, the trial court determined that Petitioner had waived the issue of the faulty jury instruction by not raising it on appeal, and that waived issues can't be resurrected in post-conviction proceedings, citing State v. Herrera, 183 Ariz. 642, 905 P.2d 1377 (Ct. App. 1995). The trial court also determined that Petitioner's claim failed on the merits, as Petitioner had not established that the jury instruction was in fact constitutionally deficient, or that the outcome of his appeal would have been different but for appellate counsel's error. (Id. at 4.)
Over three years later, on June 1, 2018, Petitioner filed a successive Notice of Request for Post-Conviction Relief, alleging newly discovered material facts, that Petitioner's failure to timely file a notice of PCR or appeal was without fault on his part, and that facts exist that establish by clear and convincing evidence that Petitioner is innocent. (Id., Exh. R at 1-3.) Petitioner attached to his Notice a memorandum and affidavit and support of his claims. (Id. at 3A-5.) The trial court dismissed Petitioner's successive PCR proceeding on August 21, 2018, for the reason that it was untimely filed and successive. (Doc. 30-1, Exh. S at 1-2.)
Petitioner initiated habeas proceedings on April 18, 2018. (Doc. 1.) In Petitioner's amended habeas petition, he asserts the following claims: Ground One - ineffective assistance of PCR counsel; Ground Two - ineffective assistance of trial counsel; Ground Three - ineffective assistance of appellate counsel; Ground Four - Petitioner's convictions and sentence violate his Fifth, Sixth, Eighth and Fourteenth Amendment rights "due to attorney error of constitutional dimensions of the claims stated [] in Grounds One, Two, Three;" Ground Five - Petitioner's enhanced sentences for the aggravated assault and misconduct convictions "are not in conformity with Arizona sentencing statutes," are illegal and disproportionate, and are unconstitutional; and Ground Six - Petitioner's Sixth and Fourteenth Amendment rights were violated as Petitioner is actually innocent. (Doc. 18.)
Respondents assert that Petitioner's habeas petition is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and, in any event, his claims are procedurally defaulted without excuse. (Doc. 30.)
LEGAL ANALYSIS
I. Timeliness under the AEDPA.
The AEDPA imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:
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.
"[T]he period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition." Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Additionally, "[t]he 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" the limitations period. 28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A state petition that is not filed, however, within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414.
A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004), rev'd on other grounds, Evans v. Chavis, 546 U.S. 189 (2006). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition is not filed until later. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004). An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See Biggs, 339 F.3d at 1048; see also Cross v. Sisto, 676 F.3d 1172, 1179 (9th Cir. 2012) ("Petitioners are not entitled to statutory tolling between rounds of state [post-conviction] petitions.").
A post-conviction proceeding initiated after the statute of limitations has already run does not re-start the limitations period. See Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
A. Statutory Tolling.
On December 19, 2013, the Court of Appeals affirmed Petitioner's judgment and sentence. The Arizona Supreme Court denied Petitioner's Petition for Review on November 13, 2013. Because Petitioner did not file petition for writ of certiorari in the United States Supreme Court, his conviction became final for purposes of the AEDPA statute of limitations 90 days later, on February 11, 2014. Absent tolling, Petitioner's statute of limitations began running the next day and expired one year later on February 12, 2015. Because Petitioner filed his first PCR notice before the statute of limitations had began, any time between the filing of that petition and its dismissal would be tolled. Petitioner's PCR proceedings were dismissed on April 22, 2015, and as a result, since Petitioner did not seek review of that dismissal, the statute of limitations began running the next day and expired one year later on April 23, 2016. Petitioner initiated habeas proceedings on April 18, 2018, nearly two years after the statute of limitations expired. Petitioner's untimely, successive PCR petition, filed in the state court on June 1, 2018, has no bearing on the statutory tolling period, as it was filed after the limitations period had expired.
B. Equitable Tolling.
The Ninth Circuit recognizes that the AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). Tolling is appropriate when "'extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." Id.; see Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Holland v. Florida, 560 U.S. 631, 648-53 (2010); see Pace, 544 U.S. at 418-19. Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007). Petitioner's burden of establishing entitlement to equitable tolling is a heavy one. Rubin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2014).
Petitioner claims he is entitled to equitable tolling based upon the ineffective assistance of state post-conviction counsel, citing Holland, 560 U.S. at 653. (Doc. 18 at 19.) The case in Holland concerned a petitioner who was represented by counsel, and counsel's failure to file a timely habeas petition. In Holland, the attorney "filed to file Holland's federal petition on time despite Holland's many letters that repeatedly emphasized the importance of his doing so," and "failed to communicate with [Holland] over a period of years, despite various pleas from Holland." Id., at 652. Petitioner was not represented by counsel in the two years that elapsed since the state court proceeding concluded and the time he filed his habeas petition, thus, he can not claim ineffective assistance of counsel as a basis for equitable tolling. Petitioner states no other excuse. Petitioner fails to establish either that he has been "pursuing his rights diligently," or that "some extraordinary circumstance" stood in the way of is filing a habeas petition on times. Holland, at 648-653.
C. Actual Innocence.
Petitioner asserts as Claim Six of his amended habeas petition that he is actually innocent, and that this is a "gateway through which [he] may pass to overcome his [time barred] federal habeas corpus petition," citing Schlup v. Delo, 513 U.S. 298 (1995). (Doc. 18 at 16.)
"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass . . . the impediment [of] . . . expiration of the statute of limitations." McQuiggin v. Perkins, 569 U.S. 383, 386 (9th Cir. 2013); see also Lee v. Lampert, 653 F.3d 929, 931 (9th Cir. 2011) (en banc). "[A] petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits." Id. at 932. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of new evidence, no juror acting reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin, 569 U.S. at 386 (quoting Schlup, 523 U.S. at 329).
To be credible, a claim of actual innocence requires a petitioner "to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence- that was not presented at trial." Schlup, 513 U.S. at 324. "[A] petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327.
Petitioner fails to identify any new evidence in support of his actual innocence claim. His bare assertion of innocence is insufficient to serve as a gateway through which he can pass to avoid the application of the statute of limitations to his amended habeas petition.
CONCLUSION
Having determined that Petitioner's amended habeas petition is untimely, that Petitioner is not entitled to equitable tolling, and that Petitioner has not demonstrated actual innocence, the Court will recommend that Petitioner's habeas petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 18) 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 the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
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. 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, 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 seventeen (17) pages in length. Failure timely to file 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 timely to file objections to any factual determinations of the Magistrate Judge will 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 Rule 72, Federal Rules of Civil Procedure.
DATED this 3rd day of May, 2019.
/s/_________
Michelle H. Bums
United States Magistrate Judge