Opinion
CV-21-08256-PCT-JAT (JZB)
02-16-2022
David Hector Salcido, Petitioner, v. Attorney General of the State of Arizona, et al., Respondents.
HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Petitioner has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner was convicted at trial for various offenses involving sexual misconduct with a minor. Petitioner unsuccessfully sought relief from his convictions and sentences on direct review. Petitioner then filed a habeas petition in this Court asserting two grounds for relief. Petitioner is not entitled to relief on either ground because his petition is untimely by 18 months and not entitled to equitable tolling. Accordingly, the Court recommends that the petition be denied and dismissed with prejudice.
II. Background.
As summarized by the Arizona Court of Appeals in Petitioner's direct appeal:
The state charged Salcido with four counts of molestation of a child, three counts of sexual abuse of a minor and one count each of indecent exposure, furnishing obscene or harmful items to a minor and aggravated assault. Salcido waived his right to counsel as well as his right to a jury trial and represented himself with the assistance of advisory counsel. The trial court acquitted Salcido of indecent exposure and furnishing obscene or harmful items to minors but found him guilty of the remaining charges. The court sentenced Salcido to an aggregate term of 46.75 years' imprisonment.State v. Salcido, No. 1 CA-CR 15-0566, 2016 WL 6081749, at *1 (Ariz.Ct.App. Oct. 18, 2016). The Arizona Court of Appeals affirmed the convictions and sentences. Id. at *10. On June 29, 2017, the Arizona Supreme Court denied review. (Doc. 6-1, Ex. H, at 196.)
The Court presumes the state court's recounting of the facts is correct. 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995).
On November 14, 2016, Petitioner filed a notice of post-conviction relief (“PCR”) and, later, a PCR petition. (Doc. 6-1, Ex. I, at 198-200; Doc. 6-1, Ex. K, at 206-30.) On May 10, 2019, the PCR court granted Petitioner's motion to withdraw his PCR petition. (Doc. 6-1, Ex. L, at 232.)
On May 8, 2020, Petitioner filed a habeas petition in this Court in CV-20-08106-PCT-JAT (JZB). (CV-20-08106-PCT-JAT (JZB), Doc 1.) On May 19, 2020, the Court dismissed the petition without prejudice for failure to comply with the local rules and gave Petitioner 30 days to file an amended petition, i.e., until June 18, 2020. (CV-20-08106-PCT-JAT (JZB), Doc. 4.) On June 9, 2020, the Court reset the 30-day deadline, giving Petitioner until July 9, 2020 to file an amended petition. (CV-20-08106-PCT-JAT (JZB), Doc. 10.) Petitioner did not file an amended petition, or anything else in the case after the June 9, 2020 Order. Thus, on August 10, 2020, the Court dismissed the case without prejudice. (CV-20-08106-PCT-JAT (JZB), Doc. 11.)
III. Petition.
On November 29, 2021, Petitioner filed the present habeas petition. (Doc. 1.) As summarized by the Court in its January 4, 2022 Service Order:
Ordinarily, a document filed by a pro se prisoner litigant is deemed “filed” on “the date the document is delivered to a prison official for mailing.” Stewart v. Cate, 757 F.3d 929, 933 n.3 (9th Cir. 2014). However, Petitioner did not specify the date he placed his petition into the prison mailing system. (See Doc. 1 at 23.)
Petitioner raises two grounds for relief in the Petition. In Ground One, Petitioner asserts his rights to due process and a speedy trial under the Fifth, Sixth, and Fourteenth Amendments were violated. In Ground Two, Petitioner contends his Fifth Amendment right to confront witnesses was violated.(Doc. 3 at 2.) On January 19, 2022, Respondents filed a Limited Answer arguing the petition should be denied and dismissed as untimely, procedurally defaulted, or non-cognizable. (Doc. 6.)
IV. Timeliness.
A. Statute of Limitations.
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). In general, the limitations period runs from the date “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). If a petitioner does not seek review by the United States Supreme Court, the judgment becomes “final” upon the expiration of time for seeking such review. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (“[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.”); see Sup. Ct. R. 13 (requiring a petition for writ of certiorari to be filed within 90 days of the judgment to be reviewed).
B. Statutory Tolling.
“‘[A] properly filed application for State post-conviction or other collateral review' tolls AEDPA's statute of limitations for the pendency of the state court proceedings.” Curiel v. Miller, 830 F.3d 864, 868 (9th Cir. 2016) (quoting 28 U.S.C. § 2244(d)(2)). “Properly” filed means the application was filed in compliance with “applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). “[T]ime limits, no matter their form, are ‘filing' conditions.” Pace, 544 U.S. at 417. Thus, an untimely application for state post-conviction relief is not properly filed and therefore does not toll the statute. Id. at 414 (“When a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” (citation omitted)).
C. Equitable Tolling.
A petitioner is entitled to equitable tolling 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.” Holland v. Florida, 560 U.S. 631, 648 (2010) (quoting Pace, 544 U.S. at 418). “The diligence required . . . is ‘reasonable diligence,' not ‘maximum feasible diligence.'” Id. at 653. However, “‘the threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.'” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (citations omitted).
V. Analysis.
The present petition is untimely. Petitioner's convictions and sentences became final on September 27, 2017-90 days after the Arizona Supreme Court denied review on June 29, 2017. See Bowen, 188 F.3d at 1158-59. However, the statute of limitations did not begin to run on this date because Petitioner had filed a notice of PCR on November 14, 2016, thereby tolling the statute until the conclusion of Petitioner's PCR proceeding on May 10, 2019. See Curiel, 830 F.3d at 868. A habeas petition was due a year later on May 10, 2020. See 28 U.S.C. § 2244(d)(1)(A). Although Petitioner filed a timely habeas petition in CV-20-08106-PCT-JAT (JZB) on May 8, 2020, the pendency of that petition-which was ultimately dismissed without prejudice-did not toll the statute for the petition in this case. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (“[A]n application for federal habeas corpus review is not an ‘application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2) [and] therefore d[oes] not toll the limitation period during the pendency of [petitioner's] first federal habeas petition.”). Therefore, the present petition, filed November 29, 2021, is untimely by over 18 months.
A. Equitable Tolling.
In the Amended Petition, Petitioner appears to acknowledge the Petition is untimely.
He states “why habeas is late is comprehensively explained in attached at page 11B-11K.” (Doc. 11-1 at 29.) Petitioner submits part of the delay was caused by “my ignorance of, no access to law….” (Doc. 11-1 at 30.) A pro se petitioner's ignorance of the law and lack of legal sophistication do not constitute “extraordinary circumstances” warranting equitable tolling. Johnson v. United States, 544 U.S. 295, 311 (2005) (in the 28 U.S.C. § 2255 context, rejecting movant/prisoner's attempt to justify his lack of diligence on his pro se status and lack of legal sophistication and stating: “we have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness”); Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (collecting cases from other circuits and holding that “a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance”); Waldron- Ramsey, 556 F.3d at 1013 n. 4 (“a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling”), cert. denied, 558 U.S. 897 (2009). Petitioner also fails to demonstrate reasonable diligence. On May 8, 2020, Petitioner was able to file a 21-page petition in CV-20-08106-PCT-JAT (JZB). After that matter was dismissed without prejudice on August 10, 2020, Petitioner waited until November 29, 2021 to file the instant Petition. Petitioner presents no extraordinary circumstance that prevented him from filing a timely petition when he was able to file a timely petition previously. “[E]quitable 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 prisoner's untimeliness.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (cleaned up). Also, Petitioner requested and was granted a 30-day extension of time to file an amended petition, so he was aware of his ability to request extensions of time to file amended petitions. But he did not request another extension. Instead, that matter was dismissed in August 2020, and Petitioner waited more than 15 additional months to file the instant Petition. Petitioner states the Court will see his diligence “when this [Court sees] all handwritten documents by Petitioner, labeling of documents, exhibits, sections, case cites, evid/wits, and that every page written by Petitioner had at least 3 rough draft pages.” (Doc. 11-1 at 43.) But that point addresses his diligence in writing a Petition, not his diligence in filing a timely petition. Petitioner is not entitled to equitable tolling. See Waldron-Ramsey, 556 F.3d at 1011 (holding a petitioner is not entitled to equitable tolling on the basis of his own “oversight, miscalculation or negligence”).
B. Actual Innocence.
In Ground One of the Amended Petition, Petitioner alleges “actual innocence.” (Doc. 11 at 8.) A colorable claim of actual innocence may serve as a “gateway” to allow the consideration of claims that are otherwise barred. See Schlup v. Delo, 513 U.S. 298 (1995); Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (holding that a “credible claim of actual innocence constitutes an equitable exception to [§ 2244]'s limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits”).
Petitioner alleges there is “proof of actual innocence” in the trial transcripts and evidence in the case. (Doc. 11 at 8-12.) He submits “all of the facts” are the byproduct “of police reports, arrests, and CCTV.” (Id. at 12.) Petitioner submits “meticulous/detailed evidence of Petitioner's absolute actual innocence was well known” by the court and attorneys in his case. (Doc. 11-1 at 41.) After a review of the Petition, Amended Petition, his Reply (doc. 9), and documents in the case, the Court finds Petitioner fails to present new, reliable evidence of actual innocence in this case. Petitioner, to his credit, meticulously details the evidence he possessed, and the evidence presented during trial. But he does not bring forth new, reliable evidence of actual innocence required to pass through the Schlup gateway. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); 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.'”).
Petitioner also submits multiple pages explaining why his “direct appeal did not evolve into a habeas corpus 2254 until May of 2020.” (Doc 11-1 at 30.) These submissions describe his work from 2015 to May of 2020, but do not shed light on his diligence from May of 2020 to November of 2021. (Doc. 11-1 at 30-42.)
VI. Conclusion.
An evidentiary hearing is not necessary as the record is sufficiently developed. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Because Petitioner's petition is untimely as explained in this Report, Petitioner is not entitled to habeas relief. Accordingly, the Court recommends that Petitioner's petition be denied and dismissed with prejudice.
VII. Motion to Stay.
On January 18, 2022, Petitioner filed a motion to “temporarily place on hold” this Court's order requiring Respondent to answer the Petition. (Doc. 7 at 1.) Petitioner requested additional time to file an amended petition. But, on February 3, 2022, Petitioner subsequently filed a Motion to Amend his Petition. (Doc. 10.) Petitioner's request for a stay is moot because both the Petition and Amended Petition are untimely.
VIII. Motion to Amend.
On February 3, 2022, Petitioner filed a Motion to Amend his Petition. (Doc. 10.) In the 90-page amended petition, Petitioner submits 17 “factors” in support of his petition. (Doc. 11, 11-1.) Petitioner also filed an “instruction” section in the proposed amended petition. (Doc. 11-2.) Because the Petition and the Amended Petition are untimely without excuse, the Court recommends the Motion to Amend be denied as futile.
IX. Motion to Strike.
Respondents request the Court strike the Amended Petition for failure to comply with the Court's local rules because it does not indicate how it differs from the original petition. (Doc. 12 at 2.) In the alternative, Respondents request the Motion to Amend be denied as moot because both the petition and amended petition are untimely. The Court recommends the Motion to Strike be denied because the Court has considered Petitioner's arguments regarding equitable tolling and actual innocence presented in the Amended Petition.
X. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. § 2254. A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right, ” 28 U.S.C. § 2253(c)(2), “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further, ” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Petitioner has not made the requisite showing here, the Court will recommend that a certificate of appealability be denied.
Accordingly, IT IS RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied.
IT IS FURTHER RECOMMENDED that Petitioner's motion for a stay (doc. 7), motion to amend (doc. 10), and motion to strike (doc.12) be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely 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 file timely objections to any factual determinations of the Magistrate Judge may 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 Fed. R. Civ. P. 72.