Opinion
CV 21-00080-TUC-JAS (LAB)
08-04-2021
Lorenzo Reyes Felix, Petitioner, v. David Shinn; et al., Respondents.
REPORT AND RECOMMENDATION
Leslie A. Bowman United States Magistrate Judge
Pending before the court is an amended petition for writ of habeas corpus constructivelyfiled on March 10, 2021, by Lorenzo Reyes Felix, an inmate currently held in the Arizona State Prison Complex in Florence, Arizona. (Doc. 7)
Felix 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 matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2
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
“After a jury trial, Lorenzo Felix was convicted of first-degree burglary, kidnapping, aggravated assault, armed robbery, sexual abuse, sexual assault, theft of means of transportation, first-degree trafficking in stolen property, and theft of a credit card.” (Doc. 14-1, p. 63) “The trial court . . . sentenced him to a combination of consecutive and concurrent, aggravated and enhanced prison terms, the longest of which [was] fifteen years.” Id.
On direct appeal, Felix argued that (1) the trial court erred when it denied his motion for a new trial pursuant to Rule 24.1(c), (2) the trial court “erred by denying his request for a competency exam before sentencing pursuant to Rule 11, ” and (3) “the convictions were obtained in violation of his due process rights because he had been incompetent at the time of trial.” (Doc. 14-1, p. 64) The Arizona Court of Appeals affirmed his convictions and sentences on July 29, 2011. (Doc. 14-1, pp. 62-69) Felix did not file a petition for review with the Arizona Supreme Court. (Doc. 7, p. 3)
Felix filed a notice of post-conviction relief on August 2, 2011. (Doc. 14-1, p. 73) Appointed counsel subsequently notified the court that he could not find any colorable issues to raise and requested an opportunity for Felix to file a petition pro se. (Doc. 14-1, pp. 80-82)
Felix did not file his pro se petition immediately however because he believed his copy of the trial transcript was incomplete. On October 25, 2012, Felix filed a petition for special action in the trial court arguing that testimony was missing from the transcripts obtained by his appellate counsel. (Doc. 14-5, pp. 57-58) The petition was sent to the Arizona Court of Appeals on November 20, 2012. (Doc. 14-5, p. 62) On March 29, 2013, The Arizona Court of Appeals denied the petition on the understanding that Felix had permission to continue his currently pending Rule 32 post-conviction relief proceeding. (Doc. 14-5, pp. 109-111)
Felix eventually filed a pro se petition on March 25, 2015. (Doc. 14-2, p. 3) He claimed (1) trial counsel was ineffective for (a) mishandling the plea offer, (b) failing to investigate, (c) mishandling evidence at trial, (d) failing to develop an alibi defense, (e) failing to retain experts, (f) failing to properly raise the issue of competency, (g) failing to produce favorable evidence, (h) insulting Felix, and (i) failing to communicate; (2) he had newly discovered evidence of removed and altered evidence; (3) trial counsel was ineffective for (a) failing to engage in appropriate cross-examination, (b) advising Felix to commit perjury, (c) failing to interview prosecution witnesses, and (d) failing to question a juror; (4) he had newly discovered evidence that the state did not prove beyond a reasonable doubt all elements; (5) appellate counsel was ineffective for (a) failing to raise the issue of insufficient evidence and (b) failing to raise the issue of double jeopardy; (5) evidence should be tested for DNA; (6) the prosecutor presented false testimony; and (7) the prosecutor presented false testimony from Sergeant John Strader, (Doc. 14-2, pp. 8-37)
After a hearing, the trial court denied the petition for post-conviction relief on July 7, 2017. (Doc. 14-3, p. 3) The trial court did not believe that trial counsel failed to inform Felix of a plea offer or told Felix to perjure himself. Id. Moreover, even if counsel made errors at trial, those errors did not constitute ineffective assistance because “they would not have changed the outcome of the proceedings because the evidence of the Defendant's guilt was so overwhelming.” Id.
Felix filed a petition for review on September 5, 2017. (Doc. 14-3, p. 6) The Arizona Court of Appeals denied review summarily on April 3, 2018 for failing to cite to the record or present meaningful legal argument. (Doc. 14-3, pp. 31-33) In that petition for review, Felix also requested review of his previously filed petition for special action filed in case number No.2 CA-CR 2012-0473-PR. Id. The court of appeals explained that it had already denied review in that proceeding and would not revisit its decision. Id. Felix filed a petition for review with the Arizona Supreme Court on April 16, 2018. (Doc. 14-3, p. 35) On August 24, 2018, the Arizona Supreme Court summarily denied review. (Doc. 14-3, p. 45)
More than one year later, on September 26, 2019, Felix filed in the trial court a delayed motion for a rehearing of his post-conviction relief petition. (Doc. 14-3, p. 47) The motion was denied on October 9, 2019. (Doc. 14-3, p. 75) On May 20, 2020, Felix filed a motion to file an untimely petition for review of the denial of post-conviction relief. (Doc. 14-3, p. 77) The trial court denied that motion also. (Doc. 14-4, p. 32) Felix then filed a motion to file a delayed appeal and for the appointment of counsel. (Doc. 14-4, p. 32) The court denied the motion explaining that Felix was not entitled to counsel after the conclusion of his first post-conviction relief proceeding. Id. On July 2, 2020, Felix filed in the Arizona Court of Appeals a petition for special action for a petition for review of a denial of a petition for post-conviction relief. (Doc. 14-3, p. 91) On October 2, 2020, the Arizona Court of Appeals granted review but denied relief. (Doc. 14-4, p. 30)
Previously, on September 28, 2020, Felix filed another notice of post-conviction relief. (Doc. 14-4, p. 37) He filed a petition on December 24, 2020. (Doc. 14-4, p. 43) He filed what appears to be an amended petition on March 5, 2021. (Doc. 14, p. 4, n. 3) The matter is pending in the trial court.
On February 17, 2021, Felix constructively filed in this court a petition for writ of habeas corpus. (Doc. 1) He constructively filed the pending amended petition on March 10, 2021. (Doc. 7, p. 11) He claims (1) the trial court did not have jurisdiction to render a judgment or impose a sentence in light of trial counsel's late-filed motion for a new trial and motion for a second Rule 11 competency hearing, (2) the prosecution is withholding critical trial testimony from the official trial transcripts, (3) trial counsel was ineffective for failing to effectively cross-examine the victim, and (4) trial counsel was ineffective due to broken communications and a conflict of trial strategy about how to cross-examine the victim. (Doc. 7, pp. 1-12)
On June 2, 2021, the respondents filed an answer arguing that the amended petition should be dismissed as untimely. (Doc. 14) In the alternative, they argue that most of Felix's claims are procedurally defaulted. Id. Felix filed a reply on June 21, 2021. (Doc. 15) This court finds that the petition is time-barred. The court does not reach the respondents' alternate arguments.
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 Claims (1), (3), and (4) 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 limitation period for Claim (2) was triggered shortly afterwards when Felix discovered an alleged irregularity in the transcripts that he received from his appellate counsel when he was preparing his post-conviction relief petition. See 28 U.S.C. § 2244(d)(1)(D). The court assumes without deciding that Felix was acting diligently at this point. Id
Felix's convictions and sentences were affirmed on direct appeal by the Arizona Court of Appeals on July 29, 2011. (Doc. 14-1, pp. 62-69) Felix then had 35 days to file a petition for review with the Arizona Supreme Court pursuant to Ariz.R.Crim.P. 31.19 and 1.3. When Felix failed to file a petition for review, his judgment became final on the deadline, September 2, 2011. See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007), cert. denied, 555 U.S. 829 (2008).
The court assumes without deciding that the respondents are correct and Ariz.R.Crim.P. 1.3 adds 5 extra days to the 3 0-day deadline for filing a petition for review with the Arizona Supreme Court.
Ordinarily the one-year limitation period for claims (1), (3), and (4) would begin running the next day, but Felix's first post-conviction relief proceeding was pending at this time so the limitation period was tolled. 28 U.S.C. § 2244(d)(2). This post-conviction relief proceeding ended on August 24, 2018, when the Arizona Supreme Court summarily denied Felix's petition for review. (Doc. 14-3, p. 45) The limitation period began running the next day and expired on August 24, 2019.
The limitation period for Claim (2) was triggered when Felix discovered the alleged irregularity in the transcripts when he was preparing his post-conviction relief petition assuming he was acting diligently. See 28 U.S.C. § 2244(d)(1)(D). The limitation period was tolled, however, until the post-conviction relief proceeding ended on August 24, 2018. 28 U.S.C. § 2244(d)(2). The limitation period began running the next day and expired on August 24, 2019. The limitation period for all four claims expired on the same day.
Felix constructively filed the pending amended petition on March 10, 2021. (Doc. 7) Under certain circumstances, the filing date of an amended petition will relate back to the filing date of the original petition for the purposes of the limitation statute. Assuming this is the case, Felix's amended petition is entitled to a filing date of February 17, 2021, the constructive filing date of the original petition. His amended petition therefore was filed approximately 18 months after the expiration of the limitation period on August 24, 2019. It is time-barred.
In his reply, Felix asserts that his state-appointed counsel never told him about the one-year limitation period for a federal habeas corpus petition. (Doc. 15, pp. 1-2) It appears that Felix is arguing that he is entitled to equitable tolling of the limitation period.
“[A] petitioner is entitled to equitable tolling [of the limitation statute] only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (punctuation modified), cert. denied, 131 S.Ct. 3039 (2011). “The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Id. “The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule.” Id.
Felix is not entitled to equitable tolling. He has made no showing that he has been pursuing his rights diligently. Moreover, he has not shown that an “extraordinary circumstance stood in his way and prevented timely filing.” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). Assuming his state-appointed counsel had a duty to tell him about the one-year federal habeas limitation period, their failure to do so was simple negligence. And, simple attorney negligence is not an extraordinary circumstance. See Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 1085 (2007) (“Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.”).
In his amended petition, Felix further asserts that he is acting pro per, he is not learned in the law, and he did not know about the limitation period. (Doc. 7, p. 11) Felix's lack of legal experience, however, is not an “extraordinary circumstance” that justifies equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”).
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the amended petition for writ of habeas corpus. (Doc. 7) Felix's amended petition 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.