Opinion
CV-21-00011-TUC-JCH (JR)
07-26-2022
Rony Matul Sarat-Rojop, Petitioner, v. Mark Brnovich, et al., Respondents.
REPORT & RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Pending before the Court is Petitioner Rony Matul Sarat-Rojop's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Doc. 1) Pursuant to Local Rule 72.1(c) and 28 U.S.C. § 636(b)(1), this matter was referred to Magistrate Judge Jacqueline Rateau for a report and recommendation. See Doc. 7. The Magistrate Judge recommends that the District Court, after an independent review of the record, deny the Petition and dismiss this case with prejudice.
BACKGROUND AND PROCEDURAL HISTORY
The information in the background section is taken, nearly verbatim, from Petitioner's briefing on appeal. See Doc. 11-1 at 28-29.
In the early evening hours of October 9, 2008, A.C. was walking home, alone, along a desert-lined area of Mission Road in Tucson, Arizona, after visiting a friend. An unknown assailant grabbed A.C. from behind and dragged her away from the road and into the desert. Once out of sight, the assailant removed some of A.C.'s clothing, bit, threatened, choked, and raped her, took some of her personal items, and then walked away. After the assault, A.C. managed to flag down a passing motorist and reported the incident to police. A sexual assault medical examination revealed traces of DNA on A.C.'s breast. Police later contacted a suspect on an unrelated matter and took a sample of his DNA. The suspect's DNA profile matched the profile found on A.C.'s breast. Upon his arrest, the suspect was also found to be wearing a woman's bracelet, which was later identified by A.C. as having been taken by her assailant. The assailant in that crime is the Petitioner in this case.
The victim's name has been abbreviated to protect her identity.
Jury Trial
On October 8, 2009, a Pima County jury convicted Petitioner of one count of kidnapping, three counts of sexual assault, one count of sexual abuse, one count of robbery, and one count of aggravated assault with a deadly weapon. (Doc. 11-1 at 10-11) Petitioner was subsequently sentenced to a mix of concurrent and consecutive sentences totaling thirty-six years imprisonment. Id. at 15-18.
Direct Appeal
On December 3, 2009, Petitioner filed a filed a notice of appeal challenging his convictions. Id. at 21-23. Ten months later, appointed counsel filed an opening brief on Petitioner's behalf arguing that the trial court's minute entry should be corrected to reflect that Petitioner's sentence for count three was to run consecutive to the sentence for count two but not consecutive to the sentence for count one. (Doc. 11-1 at 25-36) In addressing Petitioner's appeal, the Arizona Court of Appeals affirmed his convictions but found that the record was ambiguous with respect to the concurrent and consecutive nature of the sentences and remanded the matter for clarification. Id. at 64-67. Petitioner failed to challenge the ruling of the Court of Appeals, and the Court of Appeals issued its mandate shortly thereafter. Id. at 69.
On June 27, 2011, the trial court clarified its sentencing determination by explaining that count three would run partially concurrent to count one. Id. at 73. The court noted that its clarification did not change Petitioner's sentence in any substantive way. Id. at 74. Rather, the clarification only supplemented its decision. Id. Petitioner did not challenge the trial court's ruling on remand.
PCR Petition I
On April 20, 2011, Petitioner filed a notice of post-conviction relief ("PCR") under Arizona Rule of Criminal Procedure 32. Id. at 76-79. Three months later, defense counsel moved to withdraw the petition advising the court that Petitioner failed to present any meritorious issues of law or fact entitling him to relief. Id. at 81-88. On October 24, 2011, the trial court denied counsel's motion to withdraw, ordered that he remain in an advisory capacity, and gave Petitioner additional time to file a pro se PCR petition. Id. at 90. Petitioner failed to file a supplemental memorandum for relief, and after failing to find any fundamental error in the record, the trial court dismissed his petition. Id. at 92.
PCR Petition II
On June 14, 2019, over eight years after filing his initial PCR notice, Petitioner filed a second PCR notice and petition. (Doc. 11-1 at 99 - 102) In his second petition, Petitioner argued that ineffective assistance of counsel and juror bias entitled him to relief. Id.
On July 1, 2019, the trial court ruled that Petitioner's claims were untimely and dismissed his second PCR notice. Id. at 139-40. Petitioner then appealed the court's ruling to the Arizona Court of Appeals. Id. at 142-49. The Court of Appeals granted review but denied relief. Id. at 182-184. Petitioner then filed a motion for reconsideration with the Court of Appeals, id. at 186-88, which was subsequently denied, id. at 190.
On April 2, 2020, the Arizona Supreme Court denied Petitioner's petition for review. Id. at 193.
Federal Habeas Petition
On January 8, 2021, Petitioner filed the § 2254 petition at hand arguing that ineffective assistance of counsel and juror bias entitle him to sentencing relief. (Doc. 1 at 5-15) This report and recommendation follows.
DISCUSSION
I. Timeliness
The Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides for a one-year statute of limitations to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Petitions filed beyond the one-year limitations period must be dismissed. Id. The statute provides, in pertinent part, that:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244.
Petitioner was required to file his federal petition within one year of the date on which the judgment became final by the conclusion of direct review or the expiration of time available to seek such review. See 28 U.S.C. § 2244(d)(1)(A). Petitioner's conviction became final on July 18, 2011, which was twenty days after the trial court issued its sentencing clarification on remand and the deadline by which Petitioner had to file a notice of appeal. See Ariz R. Crim. P. 31.2(a)(2)(A). The one-year statute of limitations was immediately tolled, as Petitioner had filed a PCR notice on April 20, 2011. See Isley v. Arizona Dep't of Corrs., 383 F.3d 1054, 1056 (9th Cir. 2004) (observing that a state petition is pending within the meaning of 28 U.S.C. § 2244(d)(2), and is entitled to tolling, from the date on which the notice was filed). The statute of limitation began to run, again, on October 24, 2011, the day that the trial court dismissed Petitioner's PCR petition. See Hemmerle v. Schriro, 495 F.3d 1069 (9th Cir. 2007) ("We conclude that [petitioner's] first PCR notice, ... tolled AEDPA's one-year statute of limitations at least until it was summarily dismissed."). As such, Petitioner had until October 24, 2012, to file his habeas petition in federal court.
A. Statutory Tolling
The one-year AEDPA limitations period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Petitioner initiated his first PCR petition on April 20, 2011, and the trial court terminated his petition on October 24, 2011. Nearly eight years later, on June 14, 2019, Petitioner filed his second PCR petition; and on July 1, 2019, the state court dismissed the claim. Because the trial court rejected Petitioner's second PCR petition as time barred and precluded under Arizona Rule of Criminal Procedure 32.2(a)(3), it was not "properly filed" and he is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (cleaned up) ("When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).)
B. Equitable Tolling
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but 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 his untimeliness." Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (cleaned up). A petitioner is entitled to equitable tolling of the limitations period "only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (cleaned up). "The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule." Id. (cleaned up). The standard is "highly fact-dependent," Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc), "and is reserved for rare cases," Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014). In Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009), the Ninth Circuit clarified the definition of "extraordinary circumstances. It explained:
To apply the doctrine in "extraordinary circumstances" necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances "stood in his way" suggests that an external force must cause the untimeliness, rather than, as we have said, merely oversight, miscalculation or negligence on the petitioner's part, all of which would preclude the application of equitable tolling.Id. (cleaned up).
Here, Petitioner fails to demonstrate that equitable tolling applies to his claims. See Docs. 1, 12. The only impediment that Petitioner mentions which could be construed as an external force detrimental to the timeliness of his petition is his assertion that his court file is in English and that he speaks and reads Spanish. See Doc. 1 at 5, 8. However, this argument was addressed and rejected by the trial court in its June 28, 2019 order dismissing Petitioner's second PCR petition. It concluded:
On June 14, 2019, Defendant filed a second Notice of Post Conviction Relief in which he claims that he did not file a pro se petition in 2011 because he did not understand the Court's October 24, 2011 ruling as he is a Spanish speaker. The Court notes that at all stages of the proceedings, including at trial, on appeal, and during post-conviction matters, he was afforded Spanishspeaking counsel who are presumed to have explained his rights and translated documents as necessary. Court rulings and opinions, including rulings from the appellate courts, are not provided in Spanish by the courts. It is the obligation of counsel to inform defendants of the outcomes on appellate review.Doc. 11-1 at 139.
Petitioner's curt assertion that he was unaware of his claims until a prison translator read his case fails to support equitable tolling. See Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) (emphasis added) ("[W]e conclude that a non-English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source.") The record in this case includes a number of identically handwritten pro se briefs presumably drafted by Petitioner, which Petitioner fails to allege were drafted otherwise. See, e.g., Doc. 1 at 1-15; Doc. 1-1 at 1-18; Doc. 12 at 1-6. Petitioner's assertion of ignorance is also conclusory and vague. See Lott v. Mueller, 304 F.3d 918, 923 (9thCir. 2002) (observing that equitable tolling evaluations in the Ninth Circuit have "turned on an examination of detailed facts"). Petitioner has failed to provide any information about the circumstances that prevented him from timely pursing his claims and he offers no examples of diligence in that pursuit. See Stancle v. Clay, 692 F.3d 948, 952, 959 (9th Cir. 2012) ("[T]he petitioner must show diligence in seeking assistance with what he could not do alone."). Accordingly, Petitioner has failed to establish that he pursued his rights diligently and that some extraordinary circumstance stood in his way which prevented him from timely filing his petition. In this scenario, equitable tolling is unavailable, and Petitioner's federal habeas petition is untimely by more than eight years.
RECOMMENDATION
The Magistrate Judge RECOMMENDS that the District Court, after its independent review, DENY Petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1), should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Federal Rules of Civil Procedure 6(a) and (e), and 72(b). Thereafter, the parties have fourteen (14) days to file a response to the objections. If any objections are filed, this action should be designated as case number: CV 21-00011-TUC-JCH. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).