Opinion
CV-23-02100-PHX-SRB (DMF)
02-29-2024
Octaviano Torres-Nevarez, Petitioner, v. Ryan Thornell, et al., Respondents.
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 4 at 5)
Citation to the record indicates documents as displayed in the official Court electronic docket filing system maintained by the District of Arizona under Case No. CV-23-02100-PHX-SRB (DMF).
Petitioner Octaviano Torres-Nevarez (“Petitioner”), who is confined in the Arizona State Prison in Kingman, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on October 5, 2023. (Doc. 1) On November 1, 2023, the Court ordered Respondents to answer the Petition. (Doc. 4 at 2, 3-4)
The Petition was docketed by the Clerk of Court on October 10, 2023. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on October 5, 2023. (Id. at 10) This Report and Recommendation uses October 5, 2023, as the operative filing date of the Petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023)
On December 5, 2023, Respondents timely filed a Limited Answer to the Petition. (Doc. 9) Petitioner timely filed a reply in support of the Petition. (Doc. 10)
For the reasons set forth below, it is recommended that the Petition be dismissed as untimely, that the Clerk of Court be directed to terminate this matter, and that a certificate of appealability be denied.
I. BACKGROUND
A. Charges, Guilty Pleas, and Sentences
On November 1, 2010, Petitioner was indicted in Maricopa County Superior Court case number CR2010-156887-001. (Doc. 9-1 at 4-9) The indictment charged Petitioner with five counts of child molestation, four counts of sexual conduct with a minor, and two counts of public sexual indecency to a minor. (Id.) Petitioner was represented by counsel during the superior court proceedings. (Id. at 18, 30)
On March 22, 2012, which was the third day of Petitioner's jury trial, Petitioner accepted a plea offer. (Id. at 30, 32-35; see also Id. at 16-19) On the same day, Petitioner pleaded guilty to two counts of attempted molestation of a child and two counts of sexual conduct with a minor. (Id. at 33-34; see also Id. at 16-19) The plea agreement provided for consecutive prison sentences of thirteen years and fourteen years for the two sexual conduct with a minor counts, resulting in a twenty-seven year prison sentence, and for lifetime supervised probation on the other counts. (Id. at 17) Given the entry of Petitioner's guilty pleas pursuant to the plea agreement, the jury trial was vacated. (Id. at 34)
On April 26, 2012, Petitioner was sentenced to consecutive prison terms totaling twenty-seven years and lifetime supervised probation, consistent with the plea agreement. (Id. at 17; 38-44) The notice of rights signed by Petitioner on the same day of sentencing informed Petitioner of the ninety (90) day deadline for filing a notice of post-conviction (affirming that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs, dates, and attests the petition was placed in the prison mailing system); see also Rule 3, Rules Governing Section 2254 Cases (petition is timely if deposited in prison mailing system on or before last day for filing, which may be shown by “declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement”). relief (“PCR notice”). (Id. at 46)
B. First Post-Conviction Relief (“PCR”) Proceedings
On August 30, 2013, Petitioner signed and filed a pro se notarized PCR notice in the superior court; in the PCR notice, Petitioner requested appointment of PCR counsel. (Id. at 48-50) The PCR notice was on an English language form. (Id.) The PCR notice stated that Petitioner had not previously filed PCR proceedings. (Id. at 49) The notice did not raise a claim of ineffective assistance of counsel. (Id. at 48-50) Petitioner checked the “No” box in response to the question on the form notice as to whether or not an ineffective assistance of counsel claim was being raised. (Id. at 49) The portion of the PCR notice for stating reasons for not raising the PCR claims in a timely manner was left blank. (Id. at 50)
The prison mailbox rule applies to Petitioner's PCR notice. Melville, 68 F.4th at 1159 (“We assume that [Melville] ‘turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.' Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam).”). Petitioner's PCR notice was signed and dated on January 14, 2003. (Doc. 14-1 at 102)
In early October 2013, the superior court found that the PCR notice was untimely and dismissed the PCR notice. (Id. at 52-53) The superior court found that Petitioner had not raised any claims that could be raised in untimely PCR proceedings. (Id.) Petitioner moved for reconsideration, raising issues of ineffective assistance of counsel and regarding the length of his sentence of imprisonment. (Id. at 55-57) The October 2013 motion for reconsideration was handwritten in English, stated it was written by an individual other than Petitioner, and argued that Petitioner's being only Spanish speaking presented obstacles to filing a timely PCR notice. (Id.) The superior court denied the motion for reconsideration. (Id. at 59)
In December 2013, Petitioner filed a petition for review to the Arizona Court of Appeals. (Doc 9-2 at 2-25, 27) The petition for review was handwritten in English. (Id. at 2-25) The petition for review attached several handwritten letters in English to Petitioner's trial counsel, which had been sent by Petitioner to his trial counsel between October 2012 and July 2013. (Id. at 11-25)
One paragraph of the pages of letters was written in Spanish rather than English. (Doc. 9-2 at 22)
The Arizona Court of Appeals granted review but denied relief. State v. Torres-Nevarez, 1 CA-CR 13-0875 PRPC, 2015 WL 3618137 (Ariz. App. June 9, 2015) (mem. decision):
¶ 1 Petitioner Octaviano Torres-Nevarez petitions this court for review from the dismissal of his notice of post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶ 2 [Petitioner] pled guilty to two counts of sexual conduct with a minor and two counts of attempted molestation of a child. The trial court sentenced him to an aggregate term of twenty-seven years' imprisonment for the counts of sexual conduct with a minor and placed him on lifetime probation for the remaining counts. [Petitioner] now seeks review of the summary dismissal of his first untimely notice of postconviction relief. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶ 3 [Petitioner] argues his trial counsel was ineffective when he failed to inform [Petitioner] of the deadline to file a notice of postconviction relief “of-right” and that there has been a significant change in the law that renders his sentences illegal.
¶ 4 We deny review. [Petitioner] did not identify either of these issues in the notice of post-conviction relief he filed below. In fact, [Petitioner] stated in his notice that he did not seek to raise a claim of ineffective assistance of counsel or a claim pursuant to Rule 32.1(g) (significant change in the law). A petition for review may not present issues not first presented to the trial court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App.1980); State v. Wagstaff, 161 Ariz. 66, 71, 775 P .2d 1130, 1135 (App.1988); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App.1991); Ariz. R.Crim. P. 32.9(c)(1)(h).[footnote 1] “[C]ompliance with Rule 32 is not a mere formality.” Canion v. Cole, 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 1263 (2005). A petitioner must “strictly comply” with Rule 32 in order to be entitled to relief. Id.
¶ 5 We grant review and deny relief. -
Footnote: 1. [Petitioner] presented these new issues in a motion for reconsideration, but the trial court denied the motion and did not consider the new issues.
The deadline for Petitioner to file a petition for review with the Arizona Supreme Court expired on July 9, 2015, without Petitioner filing a petition for review. See Doc. 9-2 at 27; Ariz. R. Crim. P. 31.21(B)(2)(A); Ariz. R. Crim. P. 33.16(1).
C. Subsequent PCR Proceedings
Between September 2016 through August 2023, Petitioner made multiple filings in the Arizona state courts which were construed to be successive PCR proceedings; Petitioner's filings were written in English. (Doc. 9-2 at 29-145; Doc. 9-3 at 1-39) In the multiple successive PCR proceedings, relief was denied given the untimeliness of the PCR proceedings and/or for failure to state a claim upon which relief can be granted in successive PCR proceedings. (Id.)
II. PETITIONER'S HABEAS CLAIMS
In his October 5, 2023, Petition, Petitioner raises three grounds for relief. (Doc. 1) In Ground One, Petitioner alleges a violation of his Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights to due process and equal protection because he was not “provided all material involved” in his case. (Id. at 6) He contends he filed a petition for post-conviction relief, but the “sentencing attorney never provided the Petitioner . . . with any of his 15.1 and 15.2 discovery,” was “not interested in assisting the Petitioner with any investigations that the Petitioner requested,” and did not “provide any evidence to assist in any investigations to conduct.” (Id. at 6) In Ground Two, Petitioner raises a claim of “[m]anifest injustice, writ of coram nobis.” (Id. at 7) He asserts he was “coached by the attorney that if the Petitioner would enter into the plea agreement,” the attorney “would help him file [for] post-conviction relief because there were errors that the attorney would bring up.” (Id. at 7) Petitioner contends the attorney “has done nothing to rectify this case.” (Id. at 7) In Ground Three, Petitioner contends his due process rights “to obtain an impartial procedure in the Superior Court” were violated because his attorney and the prosecutor violated the Arizona Rules of Professional Conduct. (Id. at 8) Regarding timeliness of the Petition, the Petition states that the “untimeliness is that the lower courts [sic] tolling process” in “[t]he lower courts and the supreme courts and the court of appeals of Arizona Division One.” (Id. at 10) Petitioner requests that this Court remand to the superior court for an evidentiary hearing. (Id. at 10)
Noteworthy is that the Petition incorrectly states that Petitioner filed his first PCR proceedings in October 2010 and his second PCR proceedings in December 2010 (Doc. 1 at 4) Nevertheless, as set forth above, the record reflects that the first PCR proceedings were filed in August 2013, which was over a year after Petitioner's April 2012 sentencing.
In screening the Petition, the Court ruled that Petitioner's claim of/in “writ of coram nobis” is not cognizable:
Because the original criminal proceeding Petitioner is challenging arose in the state courts of Arizona, not in the federal courts, Petitioner is not entitled to a writ of error coram nobis. A “writ of error coram nobis affords a remedy to attack an unconstitutional or unlawful conviction in cases when the petitioner already has fully served a sentence. The petition fills a very precise gap in federal criminal procedure.” Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (emphasis added) (citations omitted).
“[A] petition for the writ of error coram nobis is a step in the original criminal proceedings, not the beginning of a separate civil action.” Id. at 46 (citing Yasui v. United States, 772 F.2d 1496, 1499 (9th Cir. 1985)). Because a petition for writ of error coram nobis is a step in the original criminal proceeding, it may only be maintained in federal court to challenge a federal conviction. This Court may not entertain a writ of error coram nobis to challenge a state criminal conviction because federal district courts have no direct authority or jurisdiction over original state criminal proceedings and, therefore, cannot take “steps” in furtherance of those proceedings. See Abado v. New Jersey, 328 F.3d 716, 718 (3rd Cir. 2003) (agreeing with four other federal appellate courts that “coram nobis is not available in a federal court as a means of attack on a state criminal judgment”); Yasui, 772 F.2d at 1498 (“The writ of error coram nobis fills a void in the availability of postconviction remedies in federal criminal cases.”) (emphasis added).(Doc. 4 at 2, footnote 3)
In their Limited Answer to the Petition, Respondents assert that the Petition is untimely. (Doc. 9 at 5-9) Respondents further argue that Ground Three is not cognizable. (Id. at 9-10) In addition, Respondents argue that each of Petitioner's claims is procedurally defaulted without excuse. (Id. at 10-17) Respondents request that the Court dismiss and deny Petitioner's claims as well as deny a certificate of appealability. (Id. at 17)
In his reply in support of the Petition, Petitioner argues in opposition to Respondents' arguments and requested relief. (Doc. 10) Regarding untimeliness, Petitioner states that Respondents have misconstrued the applicable law. (Id.) Petitioner argues that 28 U.S.C. § 1257(a) applies to render the Petition properly and timely filed in this Court. (Id. at 1-3)
Petitioner and Respondents each filed notices of Petitioner's communications with Respondents to try to reach an agreed upon resolution of these habeas proceedings. (Docs. 7, 8) These filings are irrelevant to the matters addressed herein.
III. TIMELINESS
A threshold issue for the Court is whether these habeas proceedings are time-barred by the applicable statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2022).
A. Starting Date of AEDPA's One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas proceedings because he filed his Petition after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). Contrary to Petitioner's reply argument that 28 U.S.C. § 1257(a) provides this Court's jurisdiction, provisions of AEDPA found in and relating to 28 U.S.C. § 2254 provide this Court with jurisdiction in these proceedings.
28 U.S.C. § 1257(a) regards jurisdiction of the United States Supreme Court and states:
Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.Simply, 28 U.S.C. § 1257(a) does not apply here.
AEDPA provides a one-year statute of limitations period. See 28 U.S.C. § 2244(d)(1). Under AEDPA, there are four possible starting dates for the beginning of its one-year statute of limitations period:
(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(d)(1). The latest of the applicable possible starting dates is the operative start date. Id.
Because the Petition's claims arise from a final judgment and sentences, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless a later start date applies under 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Here, the record does not present any basis for a later start date pursuant to 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Thus, under 28 U.S.C. § 2244(d)(1)(A), AEDPA's one-year statute of limitations period runs from when the judgment and sentence became “final by the conclusion of direct review or the expiration of the time for seeking such review.”
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may seek review only by collaterally attacking his convictions through PCR proceedings under Ariz. R. Crim. P. 32 (now Rule 33). See Ariz. R. Crim. P. 17.2(3); A.R.S. § 13-4033(B). At the time of Petitioner's sentencing, Rule 32.4(a) required that an of-right PCR notice be filed within 90 days after entry of judgment and sentence. When the Rule 32 (now Rule 33) of-right proceeding concludes or the time for filing such expires, a conviction becomes “final” for purposes of § 2244(d)(1)(A) of AEDPA. Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007); see also A.R.S. § 13-4033(B). When an Arizona petitioner's PCR proceeding is of-right, AEDPA's statute of limitations does not begin to run until the conclusion of review or the expiration of the time for seeking such review. Summers, 481 F.3d at 711, 716-17.
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
Petitioner was sentenced in Maricopa County Superior Court case number CR2010-156887-001 on April 26, 2012. (Doc. 9-1 at 38-44) Following sentencing, Petitioner had 90 days, until July 25, 2012, to file a PCR notice in the superior court. Petitioner did not file a PCR notice within that timeframe. Thus, the Court adopts Respondent's assertion that Petitioner's convictions and sentences became final on July 26, 2012. (Doc. 9 at 7) AEDPA's one-year statute of limitations therefore commenced to run on July 27, 2012, and the period for Petitioner to file a timely habeas petition expired on Friday, July 26, 2013. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998...”). Petitioner did not file these habeas proceedings until October 5, 2023, over ten years after AEDPA's statute of limitations expired. (Doc. 1) Accordingly, these habeas proceedings were untimely filed unless statutory tolling, equitable tolling, and/or the actual innocence gateway apply to render these proceedings timely filed or excuse the over ten-year untimely filing of these proceedings.
Respondents assert AEDPA's one-year limitations period elapsed a few days later, on July 29, 2013. (Doc. 9 at 7) This few-days discrepancy does not matter because Petitioner did not file his first PCR proceedings until August 2013. (Doc. 9-1 at 48-50)
B. Statutory Tolling
AEDPA expressly provides for statutory tolling of the limitations period when 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). A collateral review petition is “properly filed” when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). This includes compliance with filing deadlines. A state post-conviction relief 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 proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414). Once the statute of limitations has run, subsequent PCR petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Petitioner initiated his first PCR proceedings in late August 2013. (Doc. 9-1 at 4850) The superior court dismissed Petitioner's first PCR proceedings, finding such proceedings were untimely filed. (Id. at 52-53, 59) The Arizona Court of Appeals granted review but denied relief, determining that the superior court did not err in dismissing Petitioner's untimely first PCR proceedings. State v. Torres-Nevarez, 1 CA-CR 13-0875 PRPC, 2015 WL 3618137 (Ariz. App. June 9, 2015) (mem. decision). Because an untimely PCR notice does not statutorily toll AEDPA's limitations period, Pace, 544 U.S. at 414, Petitioner's untimely first PCR notice did not toll the limitations period. Moreover, because Petitioner's first and all subsequent PCR proceedings were filed after AEDPA's limitations period expired in July 2013, Petitioner's PCR proceedings could not restart AEDPA's limitations period. See Jiminez, 276 F.3d at 482; Ferguson, 321 F.3d at 823.
As such, there is no applicable statutory tolling of AEDPA's limitations period. Accordingly, these habeas proceedings were untimely filed by over ten years unless equitable tolling and/or the actual innocence gateway apply to excuse the over ten-year untimely filing of these proceedings.
C. Equitable Tolling
1. Applicable Law
The U.S. Supreme Court has held “that § 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. Id. at 645-46. Petitioner bears the burden of establishing that equitable tolling is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.”).
The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA's limitations period “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the first prong, Petitioner “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith, 953 F.3d at 59899 (expressly rejecting the “stop-clock” approach to equitable tolling). The second prong is met “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Id. at 600.
In the 2020 en banc decision in Smith v. Davis, 953 F.3d at 582, the Ninth Circuit resolved a discrepancy between prior decisions and eschewed the “stop-clock” method of applying equitable tolling (that requires diligence only during the course of the extraordinary circumstance, and not thereafter, resulting in a day-for-day pause of the running of the limitations clock). Instead, the Court adopted a rule which conditions equitable tolling on a question of causation. “As we have previously described it, whether an impediment caused by extraordinary circumstances prevented timely filing is a ‘causation question' that requires courts to evaluate a petitioner's diligence in all time periods-before, during, and after the existence of an ‘extraordinary circumstance'-to determine whether the extraordinary circumstance actually did prevent timely filing.” Id. at 595.
“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and quotations omitted). Whether to apply the doctrine of equitable tolling “is ‘highly fact-dependent,' and [the petitioner] ‘bears the burden of showing that equitable tolling is appropriate.'” EspinozaMatthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable in most cases,” and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted); Sossa v. Diaz, 729 F.3d 1225, 1237 (9th Cir. 2013) (“grounds for equitable tolling are highly fact-dependent”). A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where “it would have technically been possible for a prisoner to file a petition,” so long as the prisoner “would have likely been unable to do so.”).
Nevertheless, a petitioner's pro se status, indigence, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See Rasberry, 448 F.3d at 1154 (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”); see, e.g., Ballesteros v. Schriro, 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). A prisoner's “proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009); Baker v. Cal. Dep't of Corr., 484 Fed.Appx. 130, 131 (9th Cir. 2012) (“Low literacy levels, lack of legal knowledge, and need for some assistance to prepare a habeas petition are not extraordinary circumstances to warrant equitable tolling of an untimely habeas petition.”).
Further, the Ninth Circuit has “rejected the argument that lack of access to library materials automatically qualifie[s]” for equitable tolling. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Instead, a petitioner must establish that due to circumstances beyond the petitioner's control that the petitioner could not have filed “a basic form habeas petition” within the limitations period, despite exercising reasonable diligence. Waldron-Ramsey, 556 F.3d at 1014 (denying tolling when a petition was 340 days late because, for three years, the petitioner “had access to all of the documents necessary for his Faretta self-representation claim. He could have developed that argument, outlined the other arguments and the facts underlying those arguments on the form habeas petition, and then sought to amend his petition when he got more information.”). Even if a petitioner faces difficulties in accessing legal materials, the petitioner is not entitled to equitable tolling absent credible allegations that the petitioner was denied access to a particular document when needed. Id. Moreover, receipt of an actual case or statute is unnecessary to filing a habeas claim based on the facts and legal theory without citation to case law. Waldron-Ramsey, 556 F.3d at 1014.
The Ninth Circuit has recognized that equitable tolling “may be justified if language barriers actually prevent timely filing.” Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2006). In order to obtain equitable tolling due to a language barrier, the “non-English-speaking petitioner ... 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.” Id. at 1070; see also Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008) (diligence requirement of equitable tolling imposes on the prisoner a substantial obligation to make all reasonable efforts to obtain assistance to mitigate language difficulties).
2. Analysis
In the untimeliness section of his Petition, Petitioner generally references tolling due to the state (“lower”) court process, including at the superior court, Arizona Court of Appeals, and Arizona Supreme Court. (Doc. 1 at 10). Yet Petitioner had no pending proceedings in the state courts during the AEDPA limitations period, undermining any tolling argument based on state court proceedings. Further, contrary to Petitioner's reply argument that 28 U.S.C. § 1257(a) provides this Court's jurisdiction, 28 U.S.C. § 2254 of AEDPA provides this Court's jurisdiction in these proceedings, and the principles set forth above regarding tolling apply to the timeliness of the Petition's filing in this Court. Additionally, Petitioner has not shown that any illiteracy in English prevented Petitioner from filing a timely habeas petition in this Court. Petitioner's language did not prevent Petitioner from sending letters, written in English, to his attorneys in late 2012; Petitioner's language did not prevent Petitioner from making state court filings in English in late 2013. Thus, Petitioner has not shown and cannot show that Spanish being his primary (or only) language prevented Petitioner from filing these habeas proceedings during the statute of limitations period between July 2012 and July 2013, let alone in the over ten years after that time before Petitioner filed these proceedings in October 2023.
Petitioner does not argue that he is entitled to equitable tolling or assert any basis to support equitable tolling. Further, the record does not demonstrate that Petitioner could not timely bring the present habeas claims in this Court. Because Petitioner has not met his burden of demonstrating that equitable tolling applies, these proceedings were untimely filed unless the actual innocence gateway applies to excuse Petitioner's over ten-year late filing of these proceedings.
D. Actual Innocence
In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the “actual innocence gateway” to federal habeas review that applies to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995), and House v. Bell, 547 U.S. 518 (2006), extends to petitions that are time-barred under AEDPA. See Schlup, 513 U.S. at 329 (petitioner must make a credible showing of “actual innocence” by “persuad[ing] 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.”).
To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). 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 v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). “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. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
In none of Petitioner's filings does Petitioner argue that he is actually innocent of the convictions underlying his claims in the Petition. Nor does Petitioner present new evidence in these proceedings, let alone new evidence that more likely than not would have prevented a jury from convicting him of the offenses underlying the Petition.
Petitioner does not argue actual innocence and does not present new reliable evidence that would more likely than not prevent a jury from convicting him. Nor does the record otherwise contain such evidence. Thus, the actual innocence gateway does not apply to excuse Petitioner's over ten-year late filing of these proceedings.
E. These Proceedings Are Untimely Under AEDPA
As explained above, these habeas proceedings were untimely filed, and neither statutory tolling, equitable tolling, nor the actual innocence gateway render these proceedings timely filed or excuse the over ten-year late filing.
IV. CONCLUSION
For the reasons set forth above, the October 5, 2023, Petition was untimely filed by over ten years without adequate excuse for the untimely filing. Because the Petition was untimely filed without excuse, the Court does not reach Respondents' arguments regarding procedural default and non-cognizability. Therefore, it is recommended that the Petition be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
Assuming the recommendations herein are followed in the District Judge's judgment, it is recommended that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253.
Accordingly, IT IS THEREFORE RECOMMENDED that Petitioner Octaviano Torres-Nevarez's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists 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) of the 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); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any 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 determination 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.