Opinion
No. CV-19-00363-PHX-JJT (JZB)
07-12-2019
Armando Gamboa-Molina, Petitioner, v. Bruno Stolc, et al., Respondent.
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
Petitioner Armando Gamboa-Molina, has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 17) and a "Petition for Affirmative Injunction" (doc. 8). The Court will address both below.
I. Summary of Conclusion.
Petitioner's trial convictions became final on May 7, 2010. This habeas petition was due by May 7, 2011 but was not filed until January 24, 2019. Petitioner presents no grounds for statutory tolling. Petitioner, with the assistance of counsel, filed several post-conviction review pleadings in the state courts between 2015 and 2017 but never filed a protective habeas petition in this Court. Because there are no grounds to warrant equitable tolling, the Court concludes the Petition is untimely. Therefore, the Court will recommend the Petition be denied and dismissed with prejudice. The Court will also recommend Petitioner's request for a preliminary injunction hearing be denied.
II. Background.
A. Procedural Background.
On September 1, 2009, the Arizona Court of Appeals summarized Gamboa-Molina's charges and the factual history underlying his convictions and sentences, as well as the proceedings before and during trial as follows:
The state charged defendant with numerous felony offenses as the result of an investigation by the U.S. Drug Enforcement Administration (DEA) and the Conspiracy Squad of the Phoenix Police Department Drug Enforcement Bureau. The initial investigation began with two individuals, Adrian Barraza-Mendoza and Jesus Antonio Velarde. In March 2006, Phoenix police and the DEA applied for and were granted authorization by Maricopa County Superior Court for CWT-269 to tap the telephone of Barraza-Mendoza, whom they believed dealt primarily in cocaine and large quantities of methamphetamines on occasion. The investigation eventually revealed that defendant was a part of the drug trafficking operation.
When defendant was taken into custody, he was in possession of: approximately $270,000 in U.S. currency; more than 80 pounds of cocaine, 31 pounds of it in kilos, as well as 150 grams of crack cocaine; various weapons and ammunition; a cell phone that was intercepted as part of the wiretap investigation; and drug paraphernalia such as digital scales, shrink wrap, cutting agents, and hundreds of ziplock bags.
Before trial, the state moved to dismiss three of the counts against defendant without prejudice. The motion was granted and the original indictment was amended and renumbered as follows: one count of conspiracy, a Class 2 felony (Count 1); one count of illegally conducting an enterprise, a Class 3 felony (Count 2); five counts of use of a wire communication (telephone) in a drug related transaction, each a Class 4 felony (Counts 3, 10, 13, 14, 15); four counts of money laundering, each a Class 3 felony (Counts 4, 12, 27, 30); one count of transportation for sale, sale or transfer of a dangerous drug (methamphetamine) over the threshold amount, a Class 2 felony (Count 11); one count of possession for sale of a dangerous drug (methamphetamine) over the threshold amount, a Class 2 felony (Count 18); four counts of possession for sale of a narcotic drug (cocaine) over the threshold amount, each a Class 2 felony (Counts 22, 24, 25, 29); one count of possession for sale of a narcotic drug (crack cocaine) over the threshold amount, a Class 2 felony (Count 23); two counts of misconduct involving a weapon, each a Class 4 felony (Counts 26, 31); and two counts of possession of drug paraphernalia, each a Class 6 felony (Counts 28 and 34).
Prior to trial, defendant moved to suppress all of the evidence obtained against him via the wiretap and requested a Franks hearing. In response, the state argued that the wiretap was necessary, the evidence obtained was admissible and it moved to vacate the Franks hearing arguing that defendant failed to meet the requisite burden to establish a Franks hearing was needed. After considering all of the pleadings, the trial court vacated the Franks hearing. It subsequently heard oral argument on defendant's motion to suppress and denied that motion as well.
Defendant waived his right to a jury trial, preserving his right to appeal on
the suppression issues, and the case was submitted to a bench trial based on a stipulated factual summary and accompanying exhibits. Defendant was convicted of all of the offenses charged in the amended indictment.(Doc. 11-1, Ex. C, at 16.)
On March 4, 2008, Gamboa-Molina was sentenced to concurrent presumptive terms of 10 flat years of imprisonment for Count 11; five years of imprisonment for Counts 1, 22, 23, 24, 25, and 29; 3.5 years of imprisonment for Counts 2, 4, 12, 27, and 30; 2.5 years of imprisonment for Counts 3, 10, 13, 14, 15, 26, and 31; one year of imprisonment for Counts 28 and 32; and a presumptive term of 10 flat years of imprisonment for Count 18, to run consecutively to Counts 1-4, 10-15, 22-32, with credit for 641 days of presentence incarceration. (Id. at 18.) Also, on March 4, 2008, Gamboa-Molina received, and acknowledged receipt of, his notice of his rights of review after conviction. (Doc. 11-1, Ex. B, at 13.)
B. Direct Appeal.
On March 24, 2008, Gamboa-Molina filed a timely notice of appeal. (Doc. 11-1, Ex. D, at 31.) On appeal, Gamboa-Molina raised two issues: whether the trial court erred by not holding a Franks hearing and whether the trial court abused its discretion in denying his motion to suppress the evidence obtained from wiretap surveillance. (Doc. 11-1, Ex. C, at 17.) On September 1, 2009, the Arizona Court of Appeals issued a memorandum decision finding no error or abuse of discretion and affirmed Gamboa-Molina's convictions and sentences. (Id. at 29.) Gamboa-Molina petitioned for review, and on March 2, 2010, the Arizona Supreme Court denied the petition. (Doc. 11-1, Ex. E, at 37.) On April 7, 2010, the Arizona Court of Appeals issued a mandate in Gamboa-Molina's case. (Id.) Gamboa-Molina filed a petition for certiorari in the United States Supreme Court, which was denied on October 4, 2010. See Gamboa-Molina v. Arizona, 562 U.S. 834 (2010).
C. First Post-Conviction Review Proceedings.
On June 1, 2010, Gamboa-Molina filed a post-conviction relief ("PCR") notice. (Doc. 11-1, Ex. F, at 40.) On July 12, 2010, the court denied the PCR notice as untimely. (Doc. 11-1, Ex. G, at 45.)
D. Second Post-Conviction Review Proceedings.
On June 9, 2011, Gamboa-Molina filed a second PCR notice. (Doc. 11-1, Ex. H, at 48.) On April 25, 2014, after numerous extensions, notice of completions by two different appointed attorneys stating that they had reviewed Gamboa-Molina's file and were unable to find any viable issues under Rule 32, and several more extensions for Gamboa-Molina to file a pro per PCR petition that he never filed, the court dismissed Gamboa-Molina's PCR proceeding after noting that the "due date has passed." (Doc. 11-1, Exs. I-K, at 61.)
E. Third Post-Conviction Review Proceedings.
On November 5, 2015, represented by counsel, Gamboa-Molina filed a PCR petition. (Doc. 11-1, Ex. L, at 63.) On March 29, 2016, the court denied the petition as untimely. (Doc. 11-1, Ex. M, at 74.)
On April 29, 2016, Gamboa-Molina filed a petition for review by the Arizona Court of Appeals. (Doc. 1-1 at 96.) On July 31, 2017, the Arizona Court of Appeals dismissed the petition for review as untimely. (Id. at 116.) On October 25, 2017, Gamboa-Molina petitioned for review be the Arizona Supreme Court. (Id. at 121.) On April 3, 2018, the Arizona Supreme Court summarily denied the petition. (Id. at 138.)
III. Petitioner's Federal Habeas Petition.
On January 24, 2019, Petitioner filed his Petition. (Doc. 1.) Therein, Petitioner brings four grounds for relief. (Id.)
On March 11, 2019, Respondent filed a Limited Response. (Doc. 11.) On March 19, 2019, Petitioner filed an Amended Petition. (Doc. 17.) On April 1, 2019, Respondent filed a Supplemental Limited Response to Amended Petition. (Doc. 19.) That same day, Petitioner filed a Reply to Limited Response. (Doc. 20.) On April 19, 2019, Petitioner filed a Supplemental Reply to Limited Response. (Doc. 21.)
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244.
A. Time Calculation.
The AEDPA imposes a one-year limitation period, which begins to run "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).
On September 1, 2009, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 11-1, Ex. C, at 16.) On April 7, 2010, the mandate for Petitioner's direct appeal was issued. (Doc. 11-1, Ex. E). A judgment becomes "final" under § 2244(d)(1)(A) on the date the judgment became final by the conclusion of direct review or the expiration of time for seeking such review. Petitioner had to file his PCR notice within 30 days after the Arizona Court of Appeals issued its mandate. See Ariz. R. Crim. P. 32.4(a). Thus, Petitioner's convictions were final on May 7, 2010, which is 30 days after the Arizona Court of Appeals issued its mandate.
The Court notes that Petitioner improperly petitioned for a writ of certiorari, which was denied on October 4, 2010. See Gamboa-Molina v. Arizona, 562 U.S. 834 (2010). Because Petitioner failed to appeal his state law sentence to the Arizona Supreme Court and thus satisfy the jurisdiction requirements of the Supreme Court, his writ of certiorari will not be considered for purposes of timing.
The Petition was due by May 7, 2011, absent statutory tolling.
B. Statutory Tolling.
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed. See Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004); Ariz. R. Crim. P. 32.4(a) ("A proceeding is commenced by timely filing a notice of post-conviction relief within the court in which the conviction has occurred.").
On June 1, 2010, Petitioner filed his first notice of PCR. (Doc. 11-1, Ex. F.) On July 12, 2010, the court dismissed Petitioner's notice of PCR, finding the notice untimely and failing "to state any claims for which relief can be granted in an untimely Rule 32 proceeding." (Doc. 11-1, Ex. G, at 45.) In Arizona, notices for PCR (other than in "of-right" or capital proceedings) "must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is later." Ariz. R. Crim. P. 32.4(a).
Here, the trial court specifically found that Petitioner's notice was untimely filed and failed to state a colorable claim for relief. Therefore, under state law, the notice for post-conviction relief was not "properly filed" for purposes of 28 U.S.C. § 2244(d)(2), and the time period during which Petitioner pursued his untimely PCR petition through the state courts is not subject to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) ("When a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)."); Trigueros v. Adams, 658 F.3d 983, 988 (9th Cir. 2011) ("An untimely state petition is not 'properly filed' and does not trigger statutory tolling under AEDPA."); Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) ("An untimely petition, however, is not 'properly filed' pursuant to 28 U.S.C. § 2244(d)(2), and so it does not toll the statute of limitations.").
The Court notes that Petitioner also submitted a second notice of PCR on June 9, 2011. (Doc. 11-1, Ex. H.) On April 24, 2014, the trial court dismissed Petitioner's second PCR notice, finding that the Petitioner "ha[d] not filed a petition" within the due date. (Doc. 11-1, Ex. K, at 61.) Even if the AEDPA's one-year statute of limitations began running on April 25, 2014, Petitioner's habeas petition is still untimely by three years and nine months.
C. Equitable Tolling.
"A petitioner who seeks equitable tolling AEDPA's one-year deadline must show that (1) some 'extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights." Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The Petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must 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."Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). "Indeed, 'the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).
In a Supplemental Limited Response, Petitioner submits "exigent circumstance[s]" to excuse his untimely filing. (Doc. 21 at 6.) Petitioner asserts that he has "no education in the English language" and "is being held in an Arizona prison that has no paralegal to assist on a daily basis." (Id.) "'Lack of English proficiency can constitute an extraordinary circumstance for equitable tolling purposes, but only when the petitioner is unable to procure legal materials in his own language or to obtain translation assistance.'" Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) quoting Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) (finding a prisoner who receives translation assistance during 1-year tolling period from fellow inmates does not qualify for extraordinary circumstances).
Here, Petitioner's claims concern the same subjects he raised on direct appeal and post-conviction relief proceedings. (Doc. 17 at 11-14.) Petitioner attached copies of his direct appeal brief (doc. 17 at 35), his PCR memoranda (id. at 63, 95), a motion to suppress (id. at 70), and other documents from his case. Petitioner had sufficient information and legal briefing to submit a timely petition in this case. Petitioner fails to explain why his language difficulties caused him a delay of several years. Also, on November 5, 2015, Petitioner filed a PCR petition in his third post-conviction relief proceedings. (Doc. 11-1, Ex. L, at 63.) Petitioner therefore had the ability to a habeas petition at that time. See also Sojka v. Ryan, 2016 WL 558535, at *4 (D. Ariz. 2016) (finding "nothing the Superior Court did prevented Sojka from filing a protective habeas petition within the limitations period. His decision not to do so is not an extraordinary circumstance justifying equitable tolling."). Furthermore, Petitioner's pro se status does not trigger equitable tolling. See Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006) ("[W]e have never accepted pro se representation alone . . . as an excuse for prolonged inattention when a statute's clear policy calls for promptness.") (quoting Johnson v. United States, 544 U.S. 295, 311 (2005)).
Petitioner incorrectly differentiates between 28 U.S.C. §§ 2254, 2255, and the "Great Writ of Habeas Corpus." Petitioner appears to argue that he is not bound by the constraints of § 2254 because he struck that provision "from the cover page" of his Amended Petition. (Doc. 21 at 2.) Petitioner does not cite any statute or common law supporting his claim of an ethereal Great Writ of Habeas Corpus without time constraints. Each common law case provided expressly uses either 28 U.S.C. §§ 2254 or 2255 as the applicable statute under which habeas corpus may be granted.
Petitioner does not show extraordinary circumstances necessary for the finding of equitable tolling.
IV. Petition for Affirmative Injunction.
Petitioner asks the Court to grant him "affirmative injunction relief in the form of a better law library facility." (Doc. 8 at 2.) Petitioner states that the law library provides "no caselaw, nor a means to research case law and current precedential cases in the areas of law that [Petitioner is] seeking to address." (Id. at 1-2.)
Ordinarily, the Court would hold a hearing on a request for a preliminary injunction to give the parties an opportunity to present their respective versions of the material facts. See Stanley v. Univ. of S. Calif., 13 F.3d 1313, 1326 (9th Cir. 1994); Bonham v. Bank of Am. NA, CV-16-03822-PHX-JJT, 2017 WL 2841218, at *1 (D. Ariz. Jan. 4, 2017). But here, Petitioner does not meet the standard required for the Court to grant the extraordinary relief he seeks. To obtain a preliminary injunction, a plaintiff must show that "(1) she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in her favor, and (4) an injunction is in the public interest." Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 9 (2008)).
Here, Petitioner's request for extraordinary injunctive relief should be denied. First, Petitioner is not likely to succeed on his claim that the Petition is timely. The Petition is overdue by many years, and Petitioner had sufficient legal materials to file a Petition. Also, as noted above, Petitioner's counsel filed a PCR petition in his third post-conviction review proceedings. (Doc. 11-1, Ex. L, at 63.) Petitioner's counsel subsequently filed a Petition for Review in the Arizona Court of Appeals on April 26, 2016. (Doc. 1-1 at 96.) Petitioner's counsel then filed a Petition for Review in the Arizona Supreme Court on October 25, 2017. (Doc. 1-1 at 134.) Petitioner had both the assistance of counsel and the ability to file a habeas corpus petition in this Court in 2015, 2016, and 2017, but he did not do so. See Lakey v. Hickman, 633 F.3d 782, 787 (9th Cir. 2011) (noting petitioners may file a protective habeas petition in this Court while exhausting state remedies). The balance of equities does not tip in Petitioner's favor and an injunction is not in the public interest. The Court recommends that Petitioner's request for an injunction hearing be denied.
The Arizona Court of Appeals denied relief and found the trial court properly dismissed the proceeding as untimely. (Doc. 1-1 at 119.)
Petitioner argues that the "14th Amendment Fundamental Fairness Clause of Due Process" guarantees him the right to a complete legal defense, and thus, by extension guarantees him access to a sufficient law library to prepare that defense. (Doc. 8 at 2.) But "prison inmates do not have a freestanding right to access a law library or legal assistance. Instead, an inmate has the right to access the courts to challenge their conviction, sentence, or conditions of confinement." Canales-Robles v. Peters, 270 F. Supp. 3d 1230, 1236 (D. Or. 2017) (emphasis added) (citing Lewis v. Casey, 518 U.S. 343, 350-51, 354-55 (1996)).
IT IS THEREFORE RECOMMENDED:
1. The Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 11) be DENIED and DISMISSED WITH PREJUDICE.
2. The "Petition for Affirmative Injunction" (doc. 8) be DENIED.
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 reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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 14 days from the date of service of a copy of this Report and Recommendation within which 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 14 days within which to file a response to the objections.
Failure to timely 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 to timely 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Dated this 12th day of July, 2019.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge