Opinion
No. CV-17-04251-PHX-DGC (JZB)
07-19-2018
Ernesto Uriarte-Velazquez, Petitioner, v. Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
Petitioner Ernesto Uriarte-Velazquez has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner's trial convictions became final on February 18, 2016. This habeas Petition was due by February 19, 2017 but was not filed until November 16, 2017. Petitioner's untimely post-conviction review proceedings did not toll the date his habeas Petition was due. Because there are no grounds to warrant equitable tolling, the Court concludes the Petition is untimely. Therefore, the Court will recommend the Petition be denied and dismissed with prejudice.
II. Background.
A. Facts.
Petitioner was indicted by the State of Arizona on December 12, 2012. (Doc. 13-1, Ex. A, at 3.) The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court's opinion should not be afforded the presumption of correctness).
Defendant's convictions stem from a home-invasion robbery in which a group of masked men armed with handguns broke into a home occupied by the victims: Husband, Wife, Baby, and Cousin. After binding Husband and Cousin with tape and confining Wife and Baby to a bedroom at gunpoint, the robbers took Wife's cell phone and approximately $2,700 in cash. The intruders fled when police responded to a 911 call from Wife, but were apprehended in the neighborhood around the victims' home. Defendant, the get-away driver for the robbers, was taken into custody following a brief car chase.(Doc. 13-1, Ex. P, at 1186.)
Defendant was indicted on one count of burglary in the first degree, a class 2 felony and dangerous offense; three counts of kidnapping, class 2 felonies and dangerous offenses; one count of kidnapping, a class 2 felony and dangerous crime against children; three counts of armed robbery, class 2 felonies and dangerous offenses; and three counts of aggravated assault, class 3 felonies and dangerous offenses. At trial, the court granted judgment of acquittal on the charge of kidnapping Baby, and the state dismissed one of the armed robbery counts. The jury acquitted Defendant of one of the two remaining armed robbery counts but found him guilty of the eight remaining counts as charged. The trial court imposed concurrent and consecutive presumptive prison terms totaling eighteen years.
B. Direct Appeal.
On April 18, 2015, Petitioner filed a timely notice of appeal from the convictions and sentences. (Doc. 13-1, Ex. N, at 1134.) On January 14, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 13-1, Ex. P, at 1191.) On March 16, 2016, the mandate issued. (Id. at 1184.)
C. Post-Conviction Relief Proceedings.
On June 15, 2016, Petitioner mailed, and thus filed, a pro se notice of post-conviction relief ("PCR"). (Doc. 13-1, Ex. Q, at 1193.) On July 7, 2016, the trial court dismissed the PCR proceedings as untimely. (Doc. 13-1, Ex. R, at 1198.)
On September 8, 2016, Petitioner filed a Petition for Review. (Doc. 13-1, Ex. S, at 1200.) On September 14, 2017, the Arizona Court of Appeals granted review, but denied relief. (Doc. 13-2, Ex. T, at 4.)
III. Petitioner's Habeas Petition.
On November 16, 2017, Petitioner mailed, and thus filed, this habeas Petition. (Doc. 1 at 26.) "In Ground One, he claims the deportation of a key witness violated his rights under the Fifth, Sixth, and Fourteenth Amendments. In Ground Two, Petitioner asserts that he received ineffective assistance of counsel." (Doc. 8 at 2.)
See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) ("[w]hen a prisoner gives prison authorities a habeas petition or other pleading to mail to court, the court deems the petition constructively 'filed' on the date it is signed.").
On March 16, 2018, Respondents filed an Answer. (Doc. 13.) Petitioner did not file a Reply.
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244.
A. Time Calculation.
The AEDPA imposes a one-year limitation period, which begins to run "from the latest of . . . the date on which 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). When an Arizona defendant does not file a petition for review in the Arizona Supreme Court on direct review, his "direct appeal was final . . . [on] the date that he allowed his time for seeking review in the [Arizona] Supreme Court to expire." Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007) (holding that conclusion of proceeding on direct review under § 2244(d)(1)(A) occurred on the date that petitioner's ability to seek review in the Arizona Supreme Court elapsed and not when the mandate issued); Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (For "a state prisoner who does not seek review in a State's highest court, the judgment becomes 'final' under § 2244(d)(1)(A) when the time for seeking such review expires.").
On January 14, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 13-1, Ex. P, at 1185.) Petitioner then had 35 days to seek review in the Arizona Supreme Court. See Ariz. R. Crim. P. 31.19(a) (petition for review to the Arizona Supreme Court must be filed within 30 days after the filing of the decision by the Court of Appeals); Ariz. R. Crim. P. 1.3 (allowing an additional five days). Petitioner did not file for direct review with the Arizona Supreme Court. Therefore, his convictions became final on February 18, 2016, and Petitioner's AEDPA clock began running on February 19, 2016. The Petition was due by February 19, 2017 but was not filed until November 16, 2017.
B. Statutory Tolling.
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed. See Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004); Ariz. R. Crim. P. 32.4(a) ("A proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred.").
On June 15, 2016, Petitioner mailed, and thus filed, a pro se notice of post-conviction relief ("PCR"). (Doc. 13-1, Ex. Q, at 1193.) On July 7, 2016, the trial court dismissed the proceeding as untimely. (Doc. 13-1, Ex. R, at 1198.) The court determined that because the mandate issued on March 15, 2016, then the filing deadline for the notice of post-conviction relief was April 14, 2016. (Id. at 1197.) In Arizona, notices for PCR (other than in "of-right" or capital proceedings) "must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later." Ariz. R. Crim. P. 32.4(a). Here, the trial court specifically found that Petitioner's notice was untimely filed (and failed to state a colorable claim for relief). Therefore, under state law, the notice for post-conviction relief was not "properly filed" for purposes of 28 U.S.C. § 2244(d)(2), and the time period during which Petitioner pursued his untimely PCR petition through the state courts it not subject to statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) ("When a post- conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)."); Trigueros v. Adams, 658 F.3d 983, 988 (9th Cir. 2011) ("An untimely state petition is not 'properly filed' and does not trigger statutory tolling under AEDPA."); Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) ("An untimely petition . . . is not 'properly filed' pursuant to 28 U.S.C. § 2254(d)(2), and so it does not toll the statute of limitations.").
C. Equitable Tolling.
"A petitioner who seeks equitable tolling AEDPA's 1-year filing deadline must show that (1) some 'extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights." Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The Petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must show that "the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). "Indeed, 'the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).
Here, Petitioner does not argue that equitable tolling applies to his case and the Court finds that equitable tolling is not merited. On July 7, 2016, the trial court dismissed Petitioner's PCR proceeding as untimely. (Doc. 13-1, Ex. R, at 1197-98.) Petitioner still had until February 20, 2017 to file a timely habeas petition. But Petitioner waited until November 16, 2017 to file his Petition. Petitioner presents no argument that an "extraordinary circumstance" prevented him from filing the Petition on time. Petitioner presents the same facts in the habeas Petition that he presented in PCR proceedings. Petitioner had sufficient command of the facts to file a petition. See Waldron-Ramsey, 556 F.3d at 1014 (affirming denial of equitable tolling and stating that petitioner "could have prepared a basic form habeas petition and filed it to satisfy the AEDPA deadline."); United States v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004) (even without access to his case file, petitioner must "at least consult his own memory of the trial proceedings."). Petitioner had sufficient documents and knowledge when he filed a PCR petition on June 15, 2016. (Doc. 13-1, Ex. Q, at 1193.) Petitioner does not argue that an external force prevented him from filing a timely Petition here. Petitioner is not entitled to equitable tolling.
In both proceedings, Petitioner submits that he was denied due process and a fair trial when a prosecution trial witness was deported after cross-examination but before the prosecutor's re-direct examination. (See Doc. 13-1, Ex. P, at 1186; Doc. 1 at 5-10.)
The Court notes that Petitioner filed a Motion to Reconsider on July 11, 2016 with the trial court (doc. 13-1, Ex. S, at 1215-16) and a Petition for Review in the Arizona Court of Appeals on September 8, 2016 (id. at 1200). But Petitioner should have filed a "protective petition" to avoid an untimeliness bar. See Lakey v. Hickman, 633 F.3d 782, 787 (9th Cir. 2011) (noting that Pace, 544 U.S. at 416 advised state prisoners to file a protective federal petition to avoid a possible timeliness bar); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding "Rasberry's inability correctly to calculate the limitations period is not an extraordinary circumstance warranting equitable tolling"); Sojka v. Ryan, 2016 WL 558535, at *4 (D. Ariz. 2016) (finding "nothing the Superior Court did prevented Sojka from filing a protective habeas petition within the limitations period. His decision not to do so is not an extraordinary circumstance justifying equitable tolling.").
IV. Evidentiary Hearing.
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). The Petition was due by February 19, 2017 but was not filed until November 16, 2017. The Petition should be dismissed regardless of the margin of untimeliness. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (federal habeas petition submitted one day late was properly dismissed as untimely under AEDPA, noting that a "missed" deadline "is not grounds for equitable tolling"); Hartz v. United States, 419 Fed. App'x. 782, 783 (9th Cir. 2011) (unpublished) (affirming dismissal of federal habeas petition where petitioner "simply missed the statute of limitations deadline by one day").
CONCLUSION.
Based on the above analysis, the Court finds that the Petition is untimely.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
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 shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely 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 (9th Cir. 2003). Failure to timely 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Dated this 19th day of July, 2018.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge