Opinion
CV 22-00866-PHX-DWL (MHB)
01-27-2023
Reynel Amador Lucero, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE MICHELLE H. BURNS, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT COURT JUDGE:
On May 18, 2022, Petitioner Reynel Amador Lucero, who is confined in the Arizona State Prison, Central Correctional Facility, Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (hereinafter “habeas petition”). (Doc. 1.) On September 6, 2022, Respondents filed a Limited Response, (doc. 12), and on November 28, 2022, Petitioner filed a Limited Reply (doc. 19). Petitioner also filed an Omnibus Motion for Supplemental Expansion of Record Per Rule 7 and for Evidentiary Hearing Per Rule 8 (doc. 20), to which Respondents replied (doc. 21).
In determining the dates of Petitioner's various filings, this Court adopts the “mailbox rule,” which provides that a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail, to the extent it is discernible. See Houston v. Lack, 48/ U.S. 266, 270-72 (1988); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
STATE PROCEDURAL BACKGROUND
On May 10, 2007, Petitioner was charged in state court with two counts of sexual conduct with a minor, both felonies and dangerous crimes against children. (Doc. 12, Exh. A.) Petitioner went to trial, and after 5 days was convicted as charged. (Id., Exhs. C, D.) Petitioner was sentenced on July 1, 2008 to 20 years' imprisonment on count one and to a consecutive term of life without the possibility of parole for 35 years on count two. (Id., Exh, F.)
Petitioner appealed his convictions to the Arizona Court of Appeals, raising two issues: (1) the trial court erred in denying Petitioner's motion to suppress his statement as being involuntary, and (2) the trial court erred when, in response to a jury question, instructed the jury that it was a question of fact for the jury to decide whether a United States Army special agent who testified regarding Petitioner's statements was a “law enforcement officer.” (Doc. 12, Exh. H.) On December 10, 2009, the Arizona Court of Appeals affirmed Petitioner's convictions. (Id., Exh. J.) Petitioner filed a petition for review of the appellate court decision in the Arizona Supreme Court. (Id., Exh K.) On September 21, 2010, the Arizona Supreme Court summarily denied review. (Id., Exh. O.) Petitioner subsequently initiated four post-conviction relief proceedings in the trial court.
A. First Post-Conviction Proceeding (“PCR”).
On October 12, 2010, Petitioner filed a timely Notice of PCR, indicating in the Notice that he would be raising a claim of ineffective assistance of counsel. (Doc. 12, Exh. P.) Petitioner's appointed counsel ultimately filed a “Notice of Completion of PostConviction Review by Counsel,” indicating that she was “unable to find any claims for relief to raise in post-conviction proceedings.” (Id., Exh. S.) On April 9, 2012, Petitioner filed a pro se PCR petition. However, the PCR petition was struck without prejudice by the trial court for failing to include a certificate as required by the Arizona Rules of Criminal Procedure. (Id., Exh. W.) On May 30, 2012, Petitioner filed a compliant and timely PCR petition, raising the following claims:
I. Unconstitutional denial of due process by the State of a charge modified by the State and Court, and not supported by facts introduced at trial. Subheadings errors i-v:
i. The trial court's jury instructions did not require that the jury find on both counts that the crime was a completed act and not merely an attempt.
ii. Ineffective assistance of trial counsel by (1) failing to fully understand the charges and the lack of evidence to support them, (2) failing to subpoena Detective Bell for the voluntariness hearing, (3) failing to challenge grand jury proceedings, and (4) failing to provide proper investigation.
iii. Unconstitutional use of perjured testimony by the state and misstatements of fact.
iv. The trial court's agreement to admit the issue of guilt or innocence to the jury on the theory of masturbatory conduct denied Petitioner due process of law.
v. Ineffective assistance of counsel when (1) counsel was unaware of the fact that the Dangerous Crimes Against Children Statute had two subsections relating to sentencing, (2) counsel failed to fully understand the charges and the lack of evidence, (3) counsel failed to challenge grand jury proceedings, and (4) counsel failed to properly investigate. Petitioner also raises an issue of perjured testimony and misstatements of fact by the state.(Doc. 12, Exh. X.)
On November 7, 2012, the trial court denied and dismissed Petitioner's first PCR proceeding, reasoning as follows:
Defendant fails to show that his counsel's representation was deficient, and fails to show any prejudice with regard to the statute subsections relating to his sentencing. There is absolutely no showing of how Defendant was prejudiced by his unsubstantiated claim that his attorney was “surprised” about the two subsections.
Defendant also fails to show how he was prejudiced by his attorney's failure to object to the amendment of the dates in the indictment. It is well settled in Arizona that such technical amendments to an indictment are permitted to conform to the evidence. This is not a colorable claim since Defendant fails to show how this affected his defense or the outcome of the case.
Defendant's argument that his counsel did not challenge the indictment also fails since there is no showing of prejudice or how the indictment was defective. This challenge that his counsel did not move for a Rule 20 dismissal does not appear to be supported by the record, and even if the record does reflect this, does not amount to prejudice. The evidence presented at trial was very powerful and a Rule 20 motion would not have been granted.
Finally, with regard to the other issues raised, Defendant either did or could have raised these issues on appeal. He is therefore precluded from relief on any of these grounds. Rule 32(a)(2) and (3), Ariz. R. Crim. P.(Doc. 12, Exh. AA).
On December 4, 2012, Petitioner filed a motion to enlarge the deadline to file a petition for review in the Arizona Court of Appeals, which the trial court denied on December 11, 2012. (Doc. 12, Exhs. BB, DD.) Thereafter, on December 21, 2012, Petitioner filed a Petition for Review in the Arizona Court of Appeals. (Id., Exh. EE.) On January 11, 2013, the appellate court dismissed Petitioner's petition as untimely. (Id., Exh. FF.)
B. Second PCR Proceeding.
On May 2, 2013, Petitioner filed a second PCR petition, in which he raised a claim of newly discovered evidence, specifically that he had “received information directly from the Army [], which contradict[ed] testimony given by [the] State's key witness (C.I.D. Agent Todd Venne) at the pre-trial voluntariness hearing, and again at trial.” (Doc. 12, Exh. GG at 2, 5.) On May 28, 2013, Petitioner filed a motion to permit him to withdraw his second PCR petition, which was denied on June 13, 2013. (Id., Exhs. KK, LL.) On June 6, 2013, the trial court denied Petitioner's second PCR proceeding as “untimely and successive.” (Id., Exh. II.) As to Petitioner's claim of newly discovered evidence, the court held that Petitioner failed to support his claim:
The defendant states that he was received information from the Army which contradicts testimony given by the State's key witness at trial. However, the defendant fails to provide any facts, affidavits, records, or other evidence to support why these facts could not have been discovered and produced at trial through reasonable diligence. Even if defendant had overcome the due diligence requirement, the evidence defendant discusses would be used solely for impeachments purposes and would not support a claim of newly discovered facts pursuant to Ariz. R. Crim. P. 32.1(e).(Doc. 12, Exh. II.)
On July 10, 2013, Petitioner filed a petition for review in the Arizona Court of Appeals, challenging the trial court's dismissal of his second PCR. (Doc. 12, Exh. MM.) On February 10, 2015, the court issued a Memorandum Decision granting review but denying relief on the following basis:
The trial court did not abuse its discretion in summarily dismissing Lucero's second petition for post-conviction relief. In its ruling dismissing the petition, the trial court correctly concluded that Lucero had failed to establish a colorable claim of newly discovered evidence because the evidence would be used solely for impeachment purposes. We need not address the trial court's reasoning on this issue because, as the trial court also found, Lucero failed to submit any evidence to show he “exercised due diligence in securing the newly discovered material facts,” as Rule 32.1(e)(2) requires. See State v. Saenz, 197 Ariz. 487, 490-01, ¶ 13, 4 P.3d 1030-34 (App. 2000) (discussing the requirement that a defendant must have exercised due diligence for “newly discovered evidence” to result in a new trial); State v. Andersen 177 Ariz. 381, 387, 868 P.2d 964, 970 (App. 1993) (recognizing that all elements must be satisfied to establish a claim of newly discovered evidence). Indeed, Lucero raised the matter of the investigator's alleged perjury in his first petition for post-conviction relief and had approximately a year-and-a-half between commencing that proceeding and filing his petition to obtain the evidence that is the subject of his claim of newly discovered evidence in this second post-conviction proceedings. In the absence of meritorious reasons indicating why the claim of newly discovered evidence could not have been raised through reasonable diligence in Lucero's previous petition for post-conviction relief, the trial court did not abuse its discretion in summarily dismissing his untimely and successive second petition. See Ariz. R. Crim. P. 32.2(b).(Doc. 12, Exh. NN.)
C. Third PCR Proceeding.
On October 25, 2018, Petitioner filed another PCR notice, indicating he was raising six claims of newly discovered evidence: (1) that “further questions the C.I.D. agent's confession used at trial,” (2) that shows Arizona is outside of the jurisdiction of the allegations made by the victim, (3) that proves the C.I.D. agent gave false sworn testimony and falsified trial documents, (4) that shows the trial court erred when allowing the C.I.D. agent to testify, (5) that shows that he was unlawfully sentenced, and (6) that shows Petitioner was unlawfully charged on count one. (Doc. 12, Exh. PP.) On November 20, 2018, the trial court dismissed the PCR notice, ruling as to the claims of newly discovered evidence:
Lucero's conclusory allegations provide no basis to assess whether the alleged evidence is material or is the same evidence described during Defendant's previous Rule 32 proceedings. Even if the evidence is new, Defendant has not demonstrated reasonable diligence in bringing it to the Court's attention. Nor is there any basis to conclude that the alleged evidence would have produced a different outcome. Moreover, to the extent that Defendant is asserting newly discovered legal arguments concerning a charge, his sentences, and jurisdiction (Notice Att.), he is not entitled to Rule 32.1(e) relief based upon newly discovered facts.
The Court finds that Defendant's Rule 32.1(e) claims concerning the C.I.D. agent are more properly characterized as claims under Rule 32.1(a). Because Defendant already challenged the admission of the C.I.D. agent's testimony and alleged perjury in the Arizona Court of Appeals, relief on these claims is barred.(Id., Exh. QQ.)
Petitioner did not seek review of the trial court's decision in the Arizona Court of Appeal.
D. Fourth PCR Proceeding.
Petitioner initiated a fourth Notice of PCR on November 14, 2019, checking the boxes on the form that he was asserting a claim of newly-discovered material facts as well as a claim of actual innocence. (Doc. 12, Exh. RR.) Along with the PCR notice, Petitioner filed a PCR petition. (Id., Exh. SS.) In his petition, Petitioner acknowledged that he had not sought federal habeas corpus relief. (Id., at 5.) In general, he raised claims of a coerced confession, the lack of court jurisdiction and actual innocence. (Id., at 2-3.) Specifically, Petitioner identified as “issues” for the court's consideration: (1) newly discovered evidence showing actual innocence in that the victim did not live in Arizona “subjecting the defendant to double jeopardy,” and depriving Petitioner of due process, (2) newly discovered evidence of prosecutorial misconduct, and (3) the court misapplied the law as regards to count one, in that the state did not prove all of the elements of the crime showing Petitioner's actual innocence. (Id., at 9.) On December 10, 2019, the trial court denied relief, setting forth its reasoning as follows:
For the most part, Defendant elaborates on the previously rejected arguments concerning the C.I.D. agent. The evidence reflects misstatements by a witness and would have provided a basis for impeachment, but would not have altered the result. [] Defendant also provides an affidavit from his mother, Oralia De Lao, who asserts that she had custody of Victim between September 21, 2003 and June 13, 2004 and Defendant had no contact with Victim, except through phone calls, during that period. [] This affidavit is not inconsistent with the jury's verdicts. Furthermore, all of the issues Defendant raises - the time frame of the offenses, the confession-related testimony, and the sufficiency of the evidence - were known to the Court or to defense counsel at all relevant times. [] In any case, to the extent that Defendant is asserting newly discovered legal arguments, he is not entitled to Rule 32.1(e) relief based upon newly discovered facts.
The Court finds that Defendant's Rule 32.1(e) claims concerning the C.I.D. agent are more properly characterized as claims under Rule 32.1(a). Because Defendant already challenged the admission of the C.I.D. agent's testimony and alleged perjury in the Arizona Court of Appeals and in this Court, relief on these claims is barred. See Ariz. R.Crim. P. 32.2(a)(2).
Equally unavailing is Defendant's claim that his convictions rest upon insufficient evidence [] Defendant is not entitled to challenge “under the guise of a Rule 32 claim, the sufficiency of the trial evidence to support the jury's verdict.” See State v. Gutierrez, 229 Ariz. 573, 580 n. 3, ¶34, 278 P.3d 1276, 1283 n. 3 (2012).
Nor is Defendant entitled to relief under Ariz. R. Crim. P. 32.1(h). [] In relevant part, the rule provides for relief when a Defendant “demonstrates by clear and convincing evidence that the facts underlying the claim would
be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt.” He fails to allege facts that would meet the Rule 32.1(h) standard.
In sum, Defendant “must comply strictly with rule 32 by asserting substantive grounds which bring him within the provisions of the rule in order to be entitled to any relief.” State v. Manning, 143 Ariz. 139, 141, 692 P.2d 318, 320 (App. 1984). In other words, Defendant must assert substantive claims and adequately explain the reasons for their untimely assertion. Ariz. R. Crim. P. 32.2(b). He has failed to meet this standard.(Doc. 12, Exh. SS.)
Petitioner next filed a motion in the trial court to grant him a continuance of the deadline for filing a petition for review. (Doc. 12, Exh. UU.) The trial court denied the motion on February 25, 2020. (Id., Exh. VV.) On February 24, 2020, Petitioner filed a petition for review with the Arizona Court of Appeals. (Id., Exh. WW.) The court of appeals summarily dismissed the petition on March 3, 2020, finding the petition to be untimely. (Id., Exh. XX.)
HABEAS PROCEEDINGS
More than two years after the Arizona Court of Appeals dismissed Petitioner's fourth PCR proceedings, Petitioner initiated the instant habeas proceedings. Petitioner raises the following six claims in his habeas petition:
One: Petitioner is “unlawfully detained under Count #1, as the state failed to prove all elements of A.R.S. 13-1405 beyond a reasonable doubt.”
Two: Petitioner “could not have committed any act after his removal from the residence occurring June 23, 2004, as he was from that point, on Intensive Supervised Visitation Status. Therefore, [Petitioner] is actually innocent of the crime charged in Count #2.”
Three: Petitioner “is being unlawfully detained under Counts #1 and #2, as the State failed to corroborate the facts of each charge, resulting in a ‘decision that was based on an unreasonable determination of the facts[,]' [] and subjecting him to fatal variance and double jeopardy.”
Four: Petitioner's attorneys were ineffective.
Five: Prosecutorial misconduct.
Six: The trial court was biased against Petitioner.(Doc. 1.)
In his answer to the habeas form's invitation to explain why the AEDP one-year statute of limitations does not bar his habeas petition, Petitioner wrote:
As [Petitioner] is showing that he is actually innocent, the Schlup Gateway precludes any statutes of limitations. Additionally, as Martinez is invoked due to ineffective assistance of counsel, a Martinez hearing is required to determine that counsel's ineffectiveness occurred, which would then preclude the AEDPA time restraints.(Doc. 1 at 13.)
Respondents filed a Limited Answer on September 6, 2022, in which they assert that Petitioner's habeas petition is untimely by 9 ½ years without excuse, and in the alternative assert that counts one through three and six are unreviewable by the Court, and all claims are procedurally defaulted without excuse. (Doc. 12.)
DISCUSSION
I. Statute of Limitations.
A. Statutory tolling.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a one-year statute of limitations period shall apply a petition for a writ of habeas corpus by a person in state custody. See, 18 U.S.C. § 2254(d)(1). The limitations period runs from the latest of, as is relevant here, the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review becomes final. 18 U.S.C. § 2254(d)(1)(A); see Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002). A state PCR petition not filed within the state's required time limit is not “properly filed,” and the petitioner is not entitled to statutory tolling during those periods. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post-conviction petition is untimely under state law, ‘that [is] the end of the matter' for purpose of 2244(d)(2).”). Once the statue of imitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
The Arizona Court of Appeals, on direct review, affirmed Petitioner's Judgment and Sentence on December 10, 2009. On September 21, 2010, the Arizona Supreme Court denied review and Petitioner did not file a Petition for a Writ of Certiorari in the United States Supreme Court. Thus, his conviction became final for purposes of the AEDPA ninety (90) days after the Arizona Supreme Court denied review, that is, on December 21, 2010.
Petitioner initiated a timely PCR proceeding in October, 2010, thus tolling the AEDPA statute of limitations. See, Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). The time that a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claims is pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2). The trial court denied Petitioner's first, timely PCR on November 7, 2012. Petitioner's one-year statute of limitations deadline to file a habeas corpus petition would then fall on November 8, 2013. Petitioner did not file his habeas petition until May 18, 2022, nearly 9 U years after the statute of limitations had run.
Petitioner's first petition for review proceeding before the Arizona Court of Appeals did not toll the statute of limitations, as that court dismissed the petition as untimely. “The time that an application for state post-conviction review is ‘pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (emphasis in original).
Petitioner's second PCR petition also did not toll the statute of limitations as it was dismissed as untimely. Even if it had been considered to be timely, it would only have tolled the statue of limitations through August 18, 2015, still rendering Petitioner's habeas petition untimely by approximately 7 years.
Petitioner initiated his second PCR proceeding on May 2, 2013, thus the AEDPA limitations period ran from November 7, 2012 to May 2, 2013, leaving 189 days from the conclusion of the proceedings to file a federal habeas petition. The Arizona Court of Appeals dismissed Petitioner's second petition on February 10, 2015. Thus, if Petitioner's second PCR proceedings somehow acted to toll the statute of limitations, Petitioner would have had 189 days -that is until August 18, 2015-to file his habeas petition.
Petitioner's third PCR proceeding (initiated on October 25, 2018, over 3 years after the second PCR proceeding concluded) and fourth PCR proceeding (initiated on November 7, 2019) were also ruled untimely and thus did not toll the statute of limitations, but were, in any event, filed after the statute of limitations had already expired. A state proceeding initiated after the expiration of the statute of limitations does not reset the one-year clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Ferguson, 321 F.3d at 823.
B. Equitable tolling.
The statute of limitations may however be equitably tolled if “(1) the petitioner has diligently pursued his rights, and (2) extraordinary circumstances exist.” United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (citing Pace, 544 U.S. at 418)). The burden of establishing entitlement to equitable tolling is on Petitioner. Pace, 544 U.S. at 418. Equitable tolling is available “only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of [the petitioner's] the untimeliness.” Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010) (emphasis in original) (internal quotes and citation omitted). The “threshold necessary to trigger equitable tolling ... is very high.” Aguirre-Ganceda, 592 at 1045 (citation omitted).
In Petitioner's habeas petition and Limited Reply to the Respondents' Limited Answer, he asserts that he is entitled to equitable tolling of the statute of limitations, as: (1) he was denied effective assistance of post-conviction counsel, and (2) he was prevented from pursuing his rights diligently by the state's failure to follow its procedures, and (3) he is actually innocent.
i. Martinez v. Ryan, 566 U.S. 1 (2012).
To the extent that Petitioner argues that the ineffectiveness of post-conviction counsel excuses his untimely habeas petition, the holding of Martinez does not apply here. The court in Martinez recognized a narrow set of circumstances in which the procedural default of a claim of ineffective assistance of trial counsel can be excused because of the ineffectiveness of counsel in PCR proceedings. Martinez, 566 U.S. at 11-12; Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012). Martinez however does not apply to tolling the limitations of § 2244(d). Other courts have also reached this conclusion. See Lambrix v. Sec'y Florida Dept. of Corr., 756 F.3d 1246, 1249 (11th Cir. 2014) (“the equitable rule in Martinez ‘applies only to the issue of cause to excuse the procedural default of an ineffective assistance of trial counsel claim that occurred in a state collateral proceeding' and ‘has no application to the operation or tolling of the § 2244(d) statute of limitations for filing a § 2254 petition'”); Madueno v. Ryan, No. CV-13-01382-PHX-SRB, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014) (““Martinez has no application to the statute of limitations in the AEDPA which governs Petitioner's filing in federal court.”). Thus, Petitioner cannot rely on Martinez to overcome the untimeliness of his claims.
ii. Delay in filing.
Petitioner claims that the state's failure to follow its own procedures effectively blocked him from pursuing his right to due process. Specifically Petitioner alleges that the state court twice denied his requests for an extension of time to file a petition for review in the appellate court after the deadline for filing had passed. He claims the denials constituted a failure of the state to follow its own procedures, which in turn denied him a “fair opportunity to seek relief in state court,” citing Harmon v. Ryan, 959 F.2d 1457, 1462 (1992). The ruling in Harmon is not applicable in Petitioner's case, as in that case the court held that the “state procedures for seeking discretionary review were in practice ill-defined” with respect to whether or not a petitioner must seek review in the Arizona Supreme Court to exhaust his claim. Id., at 1463. Petitioner does not claim any uncertainty concerning the deadline to file a petition for review, and does not cite any specific state procedural rule that the state court violated in denying his motion or ruling on his motion after the deadline had passed. Additionally, Petitioner does not offer any excuse as to why he was unable to file his petitions for review on time.
In any case, even if Petitioner could show that the state's delay in its rulings constitutes an “extraordinary circumstance,” he does not demonstrate that the state action “prevented him” from filing his habeas petition on time. First, Petitioner did not act diligently in pursuing his rights. Following the completion of his second PCR proceedings, Petitioner did not initiate any proceedings, state or federal, for 3 years. He also did not initiate these habeas proceedings until 2 years after the superior court denied his motion to file a delayed petition for review of his fourth PCR proceeding. This is not diligence, and the denial of his motions for extensions of time to file petitions for review did nothing to prevent Petitioner from filing a timely habeas petition.
iii. Actual innocence/Schlup gateway.
Petitioner asserts that he is innocent. “[A[ctual innocence, if proved, serves as a gateway through which a petitioner may pass” despite the “expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011) (“[A] petitioner is not barred by the AEDPA statute of limitations from filing an otherwise untimely habeas petition if the petitioner makes a credible showing of ‘actual innocence' under Schlup v. Delo.”). Under Schlup, a petitioner seeking federal habeas review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623(1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). “To be credible, such a claim requires 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.” Schlup, 513 U.S. at 324. The claim of innocence “must be based on new reliable evidence not presented at trial.” Shumway v. Payne, 223 F.3.d 982, 990 (9th Cir. 2000) (citation omitted). 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.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327).
“Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.” Schlup, 513 U.S. at 316; Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . .that was not presented at trial.'” (quoting Schlup, 513 U.S. at 324)). “Unexplained delay in presenting new evidence bears on the determination whether the petitioner had made the requisite showing.” McQuiggin, 569 U.S. at 399.
Here, Petitioner has not provided new evidence of innocence. He produces two affidavits, one purportedly signed by his mother and the other by his brother. The affidavit by his brother is unsworn and undated, and states the following:
Presumably, the signature occurred before the expiration of the Commission of the Notary Public, February 22, 2018.
To Whom it May Concern,
I am writing this on behalf of my brother Reynel A. Lucero. In reference to the date 6/23/2004. Officers arrived at my home with Julio Mena of Child Protective Services. My brother was accused of possible sexual assault of a minor. The children were going to be taken from Rey and put in the custody of one of the girls' grandparents. The individual making the accusation. Julio Mena saw that the girls wanted to stay with my wife and me so he let them stay with the condition that Rey leave until they investigated. We were given specific instructions that Rey not be left alone with them or come to visit unless we got the ok from Mr. Mena. Despite anger from the family and friends Dawn and I did just that. Ray was never alone with them when he came to visit. Dawn or I or both of us were present at all times. The whole time we had custody until they were returned to Melissa we watched over the girls.(Doc. 1-1 at 46.)
The second unsworn affidavit he provides is authored by Petitioner's mother, is dated September 7, 2019, and states the following:
I, Oralia DeLao, do hereby make the following sworn statement as true and accurate to the best of my ability:
In a recent visit with my son, Reynel Lucero, he began to ask questions about his case, specifically as to where Jessica and Kylee lived
during the timeframe of his charges. He has PTSD, and has issues remembering certain details from that timeframe. I confirmed that in mid September of 2003, Reynel called me from California, asking me to care for the girls. Melissa, his wife, had left for the military on September 11, 2003, and Reynel was having issues with his residence. He could not afford to rent a place where they all could stay.
On or about September 21, 2003, I travelled from my home in Gallup, New Mexico to Phoenix, Arizona, where Reynel met me from California to pass the girls over. I immediately returned to New Mexico with both Jessica and Kylee. Jessica was transferred to Sky City Elementary from the school in California she had attended the prior year. Jessica and Kylee attended Sky City Elementary for the remainder of the school year.
At no time during the school year did Reynel have any contact with the girls other than regular phone calls.
On or about June 13, 2004, I brought Jessica and Kylee back from Arizona to Larry Lucero's home.
At no time was I interviewed by either Reynel's attorney or any police officer about my custody of the girls.(Doc. 1-1 at 47.)
Petitioner claims that this evidence establishes his innocence on count two of the indictment. As the state court found in ruling on Petitioner's Fourth PCR petition:
Defendant also provides an affidavit from his mother, Oralia De Lao, who asserts that she had custody of Victim between September 21, 2003 and June 13, 2004 and Defendant had no contact with Victim, except through phone calls, during that period. [] This affidavit is not inconsistent with the jury's verdicts. Furthermore, all of the issues Defendant raises - the time frame of the offenses, the confession-related testimony, and the sufficiency of the evidence - were known to the Court or to defense counsel at all relevant times.
Petitioner does not establish that this information is new, as noted by the state court as to the affidavit of Petitioner's mother, and as the brother's affidavit is undated. Petitioner also provides no explanation as to why almost 12 years passed after the indictment for Petitioner's mother to produce the affidavit. “Unexplained delay in presenting new evidence bears on the determination whether the petitioner had made the requisite showing [of actual innocence].” McQuiggin, 569 U.S. at 399. In addition, Petitioner was charged in count two of the indictment with sexual conduct with a minor, occurring “on or between the 1st day of September 2003 and the 9th day of December, 2004.” (Doc. 12, Exh. A.) The jury was instructed as to the same time frame. (Doc. 12-6 at 5.) The unsworn affidavits of members of Petitioner's family, even if deemed reliable, do not provide an alibi for the entire period covered by count two of the indictment. Petitioner's evidence is not evidence of actual innocence. The evidence simply does not contradict the jury's verdict. See Schlup, 513 U.S. at 329 (the petitioner must show that “no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”)
As to count one, Petitioner asserts that the state did not sufficiently prove all of the elements of the charged offense, sexual conduct with a minor. A failure to prove an element of an offense amounts to an argument as to legal sufficiency and not actual innocence. Nonetheless, Petitioner argues that the state failed to prove that he engaged in “masturbatory contact” by “put[ting] is penis between [the victim]'s buttocks.” Petitioner does not dispute that the crime charged, sexual conduct with a minor, includes sexual intercourse, as defined by “penetration into the penis, vulva, or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.” (Docs. 1-1 at 11; 12 at 26.) Petitioner asserts that the state had to prove “masturbatory contact” because there was no proof of “penetration.” The evidence Petitioner provides in support of this claim that the state failed to do so is a statement made by the state prosecutor: “I think it's too much of a question whether it was masturbatory or not . . . especially based upon the evidence we heard in court.” (Doc. 1-1 at 11.) Respondents claim that this statement made by the prosecutor was taken out of context, as the statement was made when the prosecutor was discussing whether to seek a life sentence for Petitioner. (Doc. 12 at 26.) The sentencing statute did not authorize a life sentence for sexual conduct with a minor under the age of 12 if the sexual intercourse involved only “masturbatory contact.” 2001 Ariz. Legis. Serv. Ch. 334 § 7 (§ 13-604.01(A)). The statement, in context reads:
Renumbered as § 13-705 (Effect. Jan. 1, 2009).
And if he is convicted on that count, the State would not be asking for life in prison because I think it's too much of a question whether it was masturbatory or not. I think under those facts the State would not, in good
conscience, ask for life in prison. I don't think that would be an appropriate sentence, especially based upon the evidence we heard in court.(Doc. 12, Exh. DDD at 86.)
At sentencing the prosecutor's statement was given more context:
As the defendant was found guilty on Count 1, the sentencing range is a minimum of 13 years, and a presumptive of 20 years. We had agreed and stipulated at trial, because there was some question whether there was penetration or not, or whether it was just simply some masturbatory act, the State would not seek life in prison on Count 1.(Id., Exh. EEE at 6.)
Thus, as is clear from the context of the prosecutor's statement, there was no “admission” that the state had not proved an element of its case, only that there was not sufficient evidence in the prosecutor's view that penetration had occurred which would justify seeking a life sentence. The prosecutor's out-of-context statement fails to constitute new evidence that establishes Petitioner's actual innocence on count one. Petitioner makes various other arguments concerning the evidence presented at trial, that are evidentiary complaints and not related to his actual innocence. Petitioner has failed to present new reliable evidence of his factual innocence that would entitle him to pass through the “Schlup gateway” and merit equitable tolling of the statute of limitations.
CONCLUSION
Petitioner's habeas petition is untimely as it was filed over seven (7) years after the AEDPA Statute of Limitations had expired. Petitioner has failed to establish entitlement to statutory or equitable tolling. He failed to establish the existence of extraordinary circumstances beyond his control that made it impossible for him to file a petition on time, and he has failed to make a credible showing of actual innocence. Having determined that Petitioner's habeas petition is untimely, without excuse, the Court will recommend the petition be denied and dismissed with prejudice. The Court will also recommend that, in light of this Court's finding that the habeas petition is untimely, Petitioner's Omnibus Motion for Supplemental Expansion of Record Per Rule 7 and for Evidentiary Hearing per Rule 8 (doc. 20), be denied as moot.
IT IS RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (doc. 1) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that Petitioner's Omnibus Motion for Supplemental Expansion of Record Per Rule 7 and for Evidentiary Hearing per Rule 8 (doc. 20), be DENIED as moot;
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.