Opinion
CV 22-08037 PCT JAT (CDB)
06-30-2022
Ned Alan Sandoval, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles United Stales Magistrate Judge
TO THE HONORABLE JAMES A. TEILBORG:
Petitioner Ned Sandoval seeks relief from his state conviction pursuant to 28 U.S.C. § 2254. Respondents have answered the petition (ECF No. 11), and Sandoval has docketed a reply in support of his petition (ECF No. 12).
I. Background
In 2003, pursuant to a written plea agreement, Sandoval pleaded guilty to one count of sexual conduct with a minor under 15 years of age, classified as a dangerous crime against a child and a class 2 felony (Count IX of the indictment), and two counts of attempted sexual conduct with a minor, classified as dangerous crimes against a child and class 3 felonies (Counts X and XI of the amended indictment). (ECF No. 11-1 at 3-10, 3839). All of the crimes were alleged against the same victim, with Count IX alleged to have occurred on or about December 6, 2001, and Count X and Count XI occurring on or about January of 2002 and February of 2002, respectively. (ECF No. 11-1 at 5). In return for his guilty pleas, the State agreed to dismiss the other counts of the indictment and the allegation that the victim was twelve years of age or younger. (ECF No. 11-1 at 9). On October 17, 2003, Sandoval was sentenced to consecutive prison terms totaling 40 years. (ECF No. 111 at 12-15).
Sandoval filed a notice of state post-conviction relief on October 24, 2003. (ECF No. 11-1 at 17-20). Sandoval was appointed counsel, who notified the state court on March 29, 2004, that counsel reviewed the record and could find no colorable claim to raise on Sandoval's behalf. (ECF No. 11-1 at 38-41). Sandoval was given additional time to file a pro se petition, but failed to do so and, accordingly, his state post-conviction action was dismissed on June 15, 2004. (ECF No. 11-1 at 46-47).
Sandoval filed a pro se petition for state post-conviction relief on December 5, 2006. (ECF No. 11-1 at 49-64). Sandoval asserted: his guilty plea was not knowing and voluntary; he was denied the effective assistance of counsel; his sentence constituted cruel and unusual punishment; and, pursuant to Blakely v. Washington, he was improperly sentenced because aggravating factors were found by a judge rather than a jury. (ECF No. 11-1 at 21-36). In a decision issued December 11, 2006, the state habeas trial court denied relief, concluding: “The defendant was sentenced on October 15, 2003 to three presumptive terms of imprisonment. There was no aggravated term of imprisonment. The Blakely decision does not apply to this situation.” (ECF No. 11-1 at 66). Sandoval sought review of the trial court's decision, summarily asserting a Blakely claim (ECF No. 11-1 at 68-70), and the Arizona Court of Appeals summarily denied review on September 19, 2007. (ECF No. 11-1 at 81).
Sandoval filed another notice of state post-conviction relief on October 20, 2021. (ECF No. 11-1 at 84-86). He alleged his trial counsel “did not explain to defendant that what the sentence for first time offender should be,” and also asserted that “defense counsel did not file for post conviction relief on the behalf of the defendant which should of been done.” (ECF No. 11-1 at 85). The state habeas trial court concluded Sandoval's “second Notice of Post-Conviction Relief is untimely,” and “summarily dismissed” the action on December 7, 2021. (ECF No. 11-1 at 88) (emphasis in original). Sandoval filed a petition for review on February 2, 2022 (ECF No. 11-1 at 90-93), and the state appellate court dismissed the petition for review as untimely on February 8, 2022 (ECF No. 11-1 at 97).
In his federal habeas petition, docketed March 7, 2022, Sandoval asserts: (1) his Eighth Amendment rights were violated by his sentence of forty-years imprisonment followed by a term of lifetime probation; (2) his Fifth and Fourteenth Amendment rights were violated by an involuntary confession without any Miranda warnings; and (3) his Sixth Amendment rights were violated by a confrontation call that resulted in his entrapment. (ECF No. 1).
II. Analysis
A. Statute of limitations
Sandoval's petition for habeas corpus relief is barred by the statute of limitations provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations on habeas petitions begins to run on “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. Id. at § 2244(d)(2).
To assess the timeliness of the pending petition, the Court must first determine the date on which Sandoval's conviction became “final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). By pleading guilty, Schaffer was precluded from pursuing a direct appeal in the Arizona Court of Appeals. See Ariz. Rev. Stat. § 13-4033(B). Instead, Sandoval was entitled to seek review of his conviction and sentence in an “of-right” proceeding pursuant to Rule 32 (now Rule 33) of the Arizona Rules of Criminal Procedure, the functional equivalent of a direct appeal. See Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007). Sandoval was sentenced on October 17, 2003. Therefore, his notice of post-conviction relief was due ninety days later, i.e., on October 17, 2013. See Ariz. R. Crim. P. 32.4(a) (since renumbered as Rule 33.4(b)(3)).
Sandoval timely filed a state action for post-conviction relief, his first “of right” appeal. This action was dismissed by the state habeas trial court on June 15, 2004, for Sandoval's failure to file a petition asserting his grounds for relief within the time specified by the state court. Sandoval had thirty days from the date the trial court dismissed the action to seek review in the appellate court, which he failed to do. Accordingly, Sandoval's state conviction because final on July 15, 2004, when the time for seeking review expired. See Summers, 481 F .3d at 711, 716-17.
Accordingly, the AEDPA's one-year statute of limitations for seeking federal habeas relief began to run on July 16, 2004, and expired on July 16, 2005. Sandoval's federal habeas action, docketed March 7, 2022, was filed more than sixteen years after the statute of limitations expired.
The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. See 28 U.S.C. § 2244(d)(2). Although Sandoval filed a second state action for postconviction relief on December 5, 2006, this action did not revive or restart the limitations period with regard to his federal habeas petition, which expired July 16, 2005. See Larson v. Soto, 742 F.3d 1082, 1088 (9th Cir. 2013); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Additionally, Sandoval's second Rule 32 action was not a “properly filed” action for state post-conviction relief, as it was filed long after the deadline for filing a state post-conviction action. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (holding that a state petition that is not filed within the state's required time limit is not “properly filed.”). See also Allen v. Siebert, 552 U.S. 3, 5-7 (2007) (holding that the Pace rule applies even where there are exceptions to the state-court filing deadlines, and reaffirming that a state court's rejection of a petition as untimely is “the end of the matter.”). Furthermore, Sandoval's second state habeas action concluded on or about September 19, 2007, when the appellate court denied relief. Even allowing that this second action somehow tolled or restarted the already-expired statute of limitations, more than a year passed between the termination of this action and Sandoval's filing of his federal habeas petition.
The one-year statute of limitations for filing a federal habeas petition may be equitably tolled if extraordinary circumstances beyond the petitioner's control prevented them from filing their petition on time. See Holland v. Florida, 560 U.S. 631, 645 (2010); Gibbs v. Legrand, 767 F.3d 879, 884-85 (9th Cir. 2014). As to the first element, “[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (internal citations and quotations omitted). As to the second element, “[e]quitable tolling is applicable only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quotations and citations omitted). The “extraordinary circumstance” must be attributable to an external force rather than a petitioner's lack of diligence or his lack of legal knowledge. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling is also available if the petitioner establishes their actual, factual innocence of the crimes of conviction. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014).
When an otherwise time-barred habeas petitioner “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial,” and the petitioner also asserts a colorable claim that his state criminal proceedings involved non-harmless constitutional error, the Court may consider the petition on the merits. Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014), citingSchlup v. Delo, 513 U.S. 298, 329 (1995). The Supreme Court has cautioned, however, that “tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. Sandoval does not assert his actual, factual innocence of the crimes of conviction, and does not present any evidence of innocence.
Equitable tolling is to be rarely granted. See, e.g., Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014); Waldon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). It is the petitioner's burden to establish that equitable tolling is warranted in his case. See Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010); Waldon-Ramsey, 556 F.3d at 1011; Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2004). To be entitled to equitable tolling Schaffer must show “extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Porter, 620 F.3d at 959 (emphasis added and internal quotations omitted). See also Bryant v. Arizona Att'y Gen., 499 F.3d 1056, 1060 (9th Cir. 2007) (holding the petitioner must establish a “causal connection” between the extraordinary circumstances and their failure to file a timely petition).
In his reply Sandoval asserts he is a first time offender without any criminal background, and that this circumstance was never taken “into consideration” by the Arizona trial court. (ECF No. 12 at 1). He also contends his “involuntary confession” was coerced by law enforcement officers, and that the prosecutor's use of a coerced confession violated his Sixth Amendment rights. (ECF No. 12 at 2). Sandoval argues his claims are cognizable “due to the fact that there was fundamental defect which for a first time offender has inherent a result of trial court error and a miscarriage of justice . . .” (Id.). He contends the improprieties in his state court proceedings “are cognizable because they created fundamental unfairness,” in violation of his right to due process of law. (Id.). He further asserts his sentences were “multiplictous,” in violation of his right to be free of double jeopardy, noting there “was only one victim” in all the offenses alleged in the indictment. (ECF No. 12 at 3). Sandoval then states that, although he was a “first time offender,” he was improperly sentenced to the presumptive sentence of 20 years' imprisonment pursuant to his conviction on one count of sexual conduct with a minor (classified as a class 2 felony), and to the presumptive terms of 10 years' imprisonment on both of his convictions for sexual conduct with a minor (classified as a class 3 felony) and sexual conduct with a minor (also classified as a class 3 felony), notwithstanding that these crimes involved what he alleges was the “same offense, same victim.” (ECF No. 12 at 3-4). He contends he was subjected to a “multiple type prosecution for a related act,” in violation of his right to be free of double jeopardy. (ECF No. 12 at 4). Sandoval also asserts he “has made a substantial showing of denial of constitutional rights,” and a “clear showing of severe fundamental miscarriage of justice without any type question.” (Id.).
Sandoval fails to assert any basis for equitable tolling of the statute of limitations. Sandoval does not assert any basis from which the Court can conclude he diligently pursued post-conviction relief. He does not assert the existence of any extraordinary circumstances that were the cause of his failure to timely file a federal habeas petition or any extraordinary circumstances which made it impossible to file a petition within the statute of limitations. Accordingly, equitable tolling of the statute of limitations is not warranted in this matter.
III. Conclusion
Relief on Sandoval's federal habeas claims is barred by the AEDPA's statute of limitations. Sandoval fails to proffer any legitimate reason why the statute of limitations should be equitably tolled. Sandoval fails to present any newly discovered evidence establishing a claim of factual innocence and, accordingly, the Court should not proceed to consider the merits of his claims for relief.
Accordingly, IT IS RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 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 Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the 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 ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foil. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Sandoval seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.