Opinion
CV 19-02154-PHX-DJH (MHB)
12-23-2019
Victor Teresa-Molina, Petitioner, v. Frank Strada, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:
On March 25, 2019, Petitioner Victor Teresa-Molina filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In a May 1, 2019 Order, the Court granted the Application to Proceed and dismissed the Petition without prejudice. The Court gave Petitioner thirty days to file an amended petition that cured the deficiencies identified in the Order.
On May 24, 2019, Petitioner filed an Amended Petition (Doc. 5). Respondents filed a Limited Answer (Doc. 11), and Petitioner has not filed a reply.
BACKGROUND
On February 1, 2008, Petitioner was convicted by jury trial in Maricopa County Superior Court, case #CR 2005-133174, of five counts of sexual conduct with a minor under the age of fifteen, one count of child molestation, and three counts of sexual abuse of a minor under the age of fifteen. He was sentenced to a combination of concurrent and consecutive terms of imprisonment totaling 122 years. (Exhs. A, E, F, G.)
Petitioner filed a timely appeal arguing that it was error "the way in which the trial court applied his presentence incarceration credit to his sentences on five counts of sexual conduct with a minor under fifteen, a class 2 felony and dangerous crime against children; one count of child molestation, a class two felony and dangerous crime against children; and three counts of sexual abuse of a minor under fifteen, a class 3 felony and dangerous crime against children." State v. Teresa-Molina, 2008 WL 4965350 (Ariz. Ct. App. November 18, 2008); (Exhs. I, J.) The Arizona Court of Appeals affirmed Petitioner's convictions and sentences on November 18, 2008. See Teresa-Molina, 2008 WL 4965350. Petitioner then filed a petition for review in the Arizona Supreme Court. The court denied review on April 21, 2009. (Exhs. L, M.)
Thereafter, on March 16, 2008, Petitioner filed a notice of post-conviction relief (PCR). (Exh. N.) Appointed counsel filed a Notice of Completion stating that she had "extensively reviewed the record" and was unable to find any claims to raise in PCR proceedings. Counsel requested an extension of time for Petitioner to file a pro per PCR petition. (Exh. O.)
On December 10, 2009, Petitioner filed a pro per PCR petition, raising seven claims. (Exhs. P, Q, R, S.) On March 29, 2010, the trial court dismissed Petitioner's PCR petition. (Exh. S.) The record reflects that Petitioner did not file a petition for review in the Arizona Court of Appeals.
Instead, on August 28, 2012, over two years later, Petitioner filed a document entitled, Verified Petition for Writ of Habeas Corpus ad Subjiciendum arguing that his convictions and sentences were "void for want of subject matter jurisdiction." (Exh. T.) Construing the matter as a PCR notice, the state court dismissed the matter as an untimely or successive Rule 32 proceeding on October 15, 2012. (Exh. V.)
Petitioner then filed a third PCR notice on May 4, 2015, raising a claim of ineffective assistance of counsel. (Exhs. W, X.) On July 30, 2015, the state court dismissed the PCR proceeding as untimely and successive. (Exh. X.)
In his amended habeas petition, Petitioner raises seven grounds for relief. In Grounds One, Two, Four, and Six, Petitioner claims his Sixth Amendment right to effective assistance of counsel was violated because his attorney failed to object to the chain of custody and contamination of the evidence (Ground One); did not file a motion to suppress or motion in limine regarding an "recording illegally obtained" (Ground Two); failed to file a "Rule 12.9 Motion" challenging the indictment (Ground Four); and did not cross-examine a prosecution witness" (Ground Six).
In Ground Three, he claims his Fourteenth Amendment due process rights were violated because the Maricopa County Attorney's Office "did not present the Phoenix Police Investigation Complaint to the Grand Jury," in violation of Arizona Revised Statutes section 21-422.
In Ground Five, Petitioner contends his Sixth Amendment right to a fair and impartial trial was violated because a judge, at a settlement conference, asked the prosecution "about the recording that the State had in its possession." Petitioner contends "it[']s easy to see [the judge] was wondering why defense counsel did not file a motion to suppress evidence obtained illegally."
In Ground Seven, Petitioner claims his Sixth Amendment right to effective assistance of counsel was violated because his appellate attorney failed to raise any of the issues raised in Grounds One through Six.
DISCUSSION
In their Answer, Respondents contend that Petitioner's amended habeas petition is untimely and must be dismissed.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:
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.
"[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." Bowen v. Roe, 188 F.3d 1157, 1158-59 (9 Cir. 1999). Additionally, "[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 Petitioner not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9 Cir. 2002). A state petition that is not filed, however, within the state's required time limit is not "properly filed" and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414.
A post-conviction petition is "clearly pending after it is filed with a state court, but before that court grants or denies the petition." Chavis v. Lemarque, 382 F.3d 921, 925 (9 Cir. 2004). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed even though the petition is not filed until later. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1056 (9 Cir. 2004). An application for post-conviction relief is also pending during the intervals between a lower court decision and a review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9 Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). However, the time between a first and second application for post-conviction relief is not tolled because no application is "pending" during that period. See Biggs, 339 F.3d at 1048; see also King v. Roe, 340 F.3d 821 (9 Cir. 2003) (The petitioner was "not entitled to tolling during the interval between the completion of one round of state collateral review and the commencement of a second round of review."). Moreover, filing a new petition for post-conviction relief does not reinitiate a limitations period that ended before the new petition was filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9 Cir. 2003).
The statute of limitations under AEDPA is subject to equitable tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for equitable tolling to apply, a petitioner must show "'(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way'" and prevented him from filing a timely petition. See id. at 648-49 (quoting Pace, 544 U.S. at 418).
The Court finds that Petitioner's amended habeas petition is untimely. After trial and sentencing, Petitioner appealed his conviction and sentence to the Arizona Court of Appeals and the Arizona Supreme Court. The Arizona Supreme Court denied review on April 21, 2009. Petitioner's convictions became final 90 days later - on July 20, 2009 - when the time expired for filing a petition for writ of certiorari in the United States Supreme Court. See 28 U.S.C. § 2244(d)(1)(A) (providing AEDPA statute of limitations begins "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"); Porter v. Ollison, 620 F.3d 952, 958-59 (9th Cir. 2010) ("When, on direct appeal, review is sought in the state's highest court but no petition for certiorari to the United States Supreme Court is filed, direct review is considered to be final when the certiorari petition would have been due, which is 90 days after the decision of the state's highest court.").
Petitioner, however, initiated post-conviction relief proceedings on March 16, 2008. Petitioner's PCR proceeding remained pending until March 29, 2010, when the court dismissed PCR petition. The statute of limitations began running the next day and expired on March 30, 2011. Petitioner did not initiate his habeas proceedings until March 25, 2019. Accordingly, absent any tolling, his amended habeas petition is untimely.
Petitioner is not entitled to statutory tolling. Petitioner's commencement of his PCR proceedings on August 28, 2012 and May 4, 2015, did not toll the limitations period. The state court dismissed these proceedings as untimely and successive. Thus, the PCR proceedings were not "properly filed" under 28 U.S.C. § 2244(d)(2). See, e.g., Pace, 544 U.S. at 414-17; Bonner v. Carey, 425 F.3d 1145, 1148-49 (9 Cir. 2005) (recognizing and applying Pace). Furthermore, the proceedings were filed after the limitations period had already expired, and, therefore, did not toll the limitations period. See Ferguson, 321 F.3d at 823 ("[S]ection 2244(d) does not permit the re-initiation of the [federal 1-year] limitations period that has ended before the state petition was filed.").
The Ninth Circuit recognizes that the AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9 Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9 Cir. 1998). Tolling is appropriate when "'extraordinary circumstances' beyond a [petitioner's] control make it impossible to file a petition on time." Id.; see Miranda v. Castro, 292 F.3d 1063, 1066 (9 Cir. 2002) (stating that "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9 Cir. 1999). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418. Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9 Cir. 2007).
In his amended habeas petition, Petitioner fails to demonstrate - much less argue - that he has been diligently pursuing his rights and that an extraordinary circumstance stood in his way - or establish a "causal connection" between an extraordinary circumstance and his failure to file a timely petition. Furthermore, the Court finds nothing in the record suggesting that an external force prevented Petitioner from timely filing his Amended Petition. And, a petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9 Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.").
Accordingly, Petitioner is not entitled to any equitable tolling. Petitioner's amended habeas petition is untimely.
CONCLUSION
Having determined that Petitioner's amended habeas petition is untimely, the Court will recommend that Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 5) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5) be DENIED and DISMISSED WITH PREJUDICE;
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 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 (9 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.
DATED this 23 day of December, 2019.
/s/_________
Michelle H. Burns
United States Magistrate Judge