Opinion
CV-23-02293-PHX-GMS (ESW)
07-09-2024
Armando Medrano Valenzuela, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Armando Medrano Valenzuela's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition (Doc. 1) as untimely.
I. BACKGROUND
In 2013, a jury sitting in the Superior Court of Arizona in and for Maricopa County convicted Petitioner of (i) one count of manslaughter by sudden quarrel or heat of passion; (ii) two counts of aggravated assault; (iii) one count of misconduct involving weapons; (iv) one count of influencing a witness; and (v) one count of attempted tampering with a witness. (Doc. 9-1 at 4, 11). The trial court sentenced Petitioner to twenty years in prison on the manslaughter conviction, followed by a combination of consecutive and concurrent prison terms totaling 9.75 years on the remaining counts. (Id. at 5, 11). On March 31, 2015, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 99-104). On September 16, 2015, the Arizona Supreme Court denied review. (Id. at 113).
The convictions arose from two separate criminal cases (Case Nos. CR2011-006301 and CR2012-006241) that were consolidated for trial.
On October 2, 2015, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id. at 106-08). The trial court appointed counsel, who could not find any colorable claims to raise. (Id. at 110, 117). The trial court ordered Petitioner to file a pro se PCR petition by March 18, 2016. (Id. at 118). In a minute entry filed on May 12, 2016, the trial court dismissed the PCR proceeding because Petitioner had not filed a petition or sought an extension. (Id. at 120).
In June 2020, Petitioner filed a “Motion for Discovery,” stating that prison officials had lost his legal documents when he was transferred to a different prison. (Id. at 122). On April 5, 2022, Petitioner filed a request to file an untimely PCR petition. (Id. at 129-31). In a minute entry filed on July 8, 2022, the trial court denied Petitioner's request. (Id. at 133-34). The Arizona Court of Appeals denied Petitioner's request for further review. (Id. at 160).
On July 8, 2022, Petitioner filed a PCR Petition. (Id. at 136-52). In a minute entry filed on October 7, 2022, the trial court dismissed the PCR Petition, concluding that Petitioner had not demonstrated that he was entitled to litigate his untimely claims. (Id. at 163-64). Petitioner sought review by the Arizona Court of Appeals. (Id. at 166-219). On April 6, 2023, the Arizona Court of Appeals granted review, but denied relief. (Doc. 9-2 at 2-3). Petitioner did not seek further review by the Arizona Supreme Court. (Id. at 5).
On October 31, 2023, Petitioner filed the Petition. (Doc. 1). The Court screened the Petition (Doc. 1) and required Respondents to answer. (Doc. 5). Respondents filed a Limited Answer (Doc. 9) on May 10, 2024, to which Petitioner replied (Doc. 10).
The Petition (Doc. 1) was docketed by the Clerk of Court on November 3, 2023. The Petition, however, contains a certificate of service declaring under penalty of perjury that Petitioner placed the Petition in the prison mailing system on October 31, 2023. (Id. at 21). The undersigned therefore has applied the prison mailbox rule and has used October 31, 2023 as the filing date. 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.”).
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, a state prisoner must file his or her federal habeas petition within one year of 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 petitioner was prevented from filing by the State action;
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the “time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) (“Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases.”). Yet equitable tolling is applicable only “if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. This Proceeding is Untimely
In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's 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).
The Arizona Supreme Court denied review of Petitioner's direct appeal on September 16, 2015. (Doc. 9-1 at 113). Petitioner's convictions became final 90 days later on December 15, 2015, upon the expiration of the time to seek a writ of certiorari from the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1159-60 (9th Cir. 1999) (holding that “the 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.”). Consequently, unless statutory or equitable tolling applies, Petitioner's one-year deadline to file a federal habeas petition expired on December 15, 2016. See Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (AEDPA's statute of limitations commences upon the expiration of the time for seeking review of petitioner's judgment in a state's highest court); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying the “anniversary method” of Rule 6(a) of the Federal Rules of Civil Procedure to calculate the expiration date of AEDPA's one-year statute of limitations).
1. Statutory Tolling
Statutory tolling does not apply to collateral review petitions that are not “properly filed.” Pace v. DiGuiglielmo, 544 U.S. 408 (2005); 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance comply with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th Cir. 2014) (court looked to Nevada state filing requirements in determining whether habeas petitioner's PCR petition was a “properly filed” application that is eligible for tolling). This includes compliance with filing deadlines. Hence, an untimely state collateral review petition is not “properly filed.” Pace, 544 U.S. at 417 (holding that “time limits, no matter their form, are ‘filing' conditions,” and that a state PCR petition is therefore not “properly filed” if it was rejected by the state court as untimely).
If the collateral review petition was “properly filed,” then the Court must determine the dates it was “pending.” In Arizona, a PCR petition becomes “pending” as soon as the notice of PCR is filed. Isley v. Ariz. Dep't of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004) (“The language and structure of the Arizona postconviction rules demonstrate that the proceedings begin with the filing of the Notice.”). It remains “pending” until it “has achieved final resolution through the State's post-conviction procedures.” Carey v. Saffold, 536 U.S. 214, 220 (2002). This includes “[t]he time between (1) a lower state court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing Carey, 536 U.S. 214).
Here, on October 2, 2015, before Petitioner's conviction became final, Petitioner initiated a PCR proceeding. (Doc. 9-1 at 106-08). The limitations period therefore was immediately tolled when Petitioner's conviction became final on December 15, 2015. On May 12, 2016, the trial court dismissed the PCR proceeding. (Id. at 120). Petitioner therefore had until May 12, 2017 to timely file his federal habeas petition. See Patterson, 251 F.3d at 1246 (applying the “anniversary method” to determine the timeliness of a habeas petition).
As Respondents correctly explain (Doc. 9 at 5), Petitioner's attempt to initiate subsequent PCR proceedings in 2022 did not restart the limitations period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock). Accordingly, this proceeding is untimely unless equitable tolling applies.
2. Equitable Tolling is Unavailable
Regarding equitable tolling, Petitioner has the burden to show that extraordinary circumstances beyond Petitioner's control made it impossible for him to file a timely federal petition. Roy, 465 F.3d at 969; Gibbs, 767 F.3d at 888 n.8. A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., Johnson v. United States, 544 U.S. 295, 311 (2005). In addition, a petitioner's miscalculation of when the limitations period expired does not constitute an “extraordinary circumstance” warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Alexander v. Schriro, 312 Fed.Appx. 972, 976 (9th Cir. 2009) (“Ultimately [the petitioner] made an incorrect interpretation of the statute and miscalculated the limitations period. This does not amount to an ‘extraordinary circumstance' warranting equitable tolling.”).
In his Reply, Petitioner recounts that his Petition asserts the ineffective assistance of counsel and argues that “[ineffective assistance of counsel or appellate counsel are grounds for tolling.” (Doc. 10 at 3). In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that ineffective assistance of post-conviction relief counsel can excuse a procedural default in some instances. Yet Martinez does not apply to the issue of equitable tolling. See Davila v. Davis, 137 S.Ct. 2058, 2062-63 (2017) (noting that Martinez applies “in a single context-where the State effectively requires a defendant to bring [an ineffective-assistance-of-trial counsel] claim in state postconviction proceedings rather than on direct appeal”); see also Lambrix v. Sec 'y, Florida Dept. of Corr., 756 F.3d 1246, 1249 (11th Cir. 2014) (“[T]he equitable rule in Martinez applies only to the issue of cause to excuse the procedural default of an ineffective assistance of trial counsel claim that occurred in a state collateral proceeding and has no application to the operation or tolling of the § 2244(d) state of limitations for filing a § 2254 petition”) (internal quotation marks and citation omitted); Madueno v. Ryan, No. CV-13-01382-PHX-SRB, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014) (“Martinez has no application to the statute of limitations in the AEDPA which governs Petitioner's filing in federal court.”); Leon-Sanchez v. Ryan, No. CV-18-00208-TUC-RM, 2019 WL 5653996, at *5 (D. Ariz. Aug. 27, 2019) (“Martinez does not provide a basis for equitable tolling for the AEDPA's statute of limitations.”).
Further, the Ninth Circuit has found that the ineffective assistance of counsel in calculating filing deadlines for federal habeas petitions is not ordinarily sufficient to constitute extraordinary circumstances to overcome AEDPA's time limit. See Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2003) (holding that a letter from counsel that gave a miscalculated date for filing a federal habeas corpus petition did not constitute extraordinary circumstances for purposes of equitable tolling). In Miranda, the Ninth Circuit explained that because the habeas petitioner did not have any right to assistance from his state counsel regarding post-conviction relief, “it follows that he did not have the right to that attorney's effective assistance, either.” Id.
In his Reply, Petitioner also asserts that he “did not have access to relevant legal material to adequately research factual basis [sic] for claim is ground [sic] for tolling.” (Doc. 10 at 4). In addition, Petitioner contends that he is “entitled to equitable tolling because he argues state courts acted wrongfully as matter of law [sic].” (Id.). However, there is no indication in the record that the circumstances of Petitioner's incarceration made it “impossible” for Petitioner to timely file a federal habeas petition. See Norwood v. Lockyer, 390 Fed.Appx. 762, 763 (9th Cir. 2010) (“limited law library access, being moved to different cells, temporary lockdowns” “do not show circumstances that are out of the ordinary for prison life or that would have made it ‘impossible' to file on time”). Chaffer, 592 F.3d at 1049 (finding that equitable tolling did not apply where there was “no indication in the record that [circumstances] made it ‘impossible' for [prisoner] to file on time”); Wilson v. Bennett, 188 F.Supp.2d 347, 353-54 (S.D.N.Y. 2002) (allegations that the petitioner lacked legal knowledge and had to rely on other prisoners for legal advice and in preparing his papers “cannot justify equitable tolling” as such circumstances are not “extraordinary”); Rasberry, 448 F.3d at 1154 (9th Cir. 2006) (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”).
“[T]he threshold necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (internal quotation marks and alterations omitted). Petitioner has failed to show the existence of “extraordinary circumstances” that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a “prisoner must show that the ‘extraordinary circumstances' were the cause of his untimeliness”). The undersigned concludes that equitable tolling is unavailable. Accordingly, this federal habeas proceeding is untimely.
B. The Actual Innocence/ Schlup Gateway Does Not Apply to Excuse the Untimeliness of this Proceeding
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the “actual innocence gateway” to federal habeas review that was applied 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. The “actual innocence gateway” is also referred to as the “Schlup gateway” or the “miscarriage of justice exception.”
Under Schlup, a petitioner seeking federal habeas review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). “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, 133 S.Ct. at 1927 (explaining the significance of an
“[u]nexplained delay in presenting new evidence”). 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, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327). 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. Thomas, 523 U.S. 538, 559 (1998)).
To the extent Petitioner asserts the actual innocence/Schlup gateway, Petitioner has not presented any new reliable evidence establishing that he is factually innocent of his convictions. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (“In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him “within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice.'”) (citations omitted); Shumway, 223 F.3d at 990 (“[A] claim of actual innocence must be based on reliable evidence not presented at trial.”); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (“[W]e have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt.”). Because Petitioner has failed to satisfy his burden of producing “new reliable evidence” of his actual innocence, the undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse the untimeliness of this federal habeas proceeding. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”).
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 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, 72. Thereafter, the parties have fourteen days within which to file a response to the 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 determinations 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.