Gallegos v. Schriro et al

Filing 22

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus : Recommending that Petition be Denied and Dismissed With Prejudice. Signed by Magistrate Judge Mark E Aspey on 9/16/08. (MAP)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MICHAEL STANLEY GALLEGOS, Petitioner, v. DORA SCHRIRO and ARIZONA ATTORNEY GENERAL, Respondents. _______________________________ TO THE HONORABLE MARY H. MURGUIA: On § 2254. November 19, 2007, Petitioner filed a pro se petition seeking a writ of habeas corpus pursuant to 42 U.S.C. Respondents filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Docket No. 17) on July 11, 2008. Respondents argue the action for habeas relief was not timely filed and that Petitioner procedurally defaulted his claims in the state courts and, therefore, that the petition must be denied and dismissed with prejudice. See Docket No. 20. I Procedural History In 1998 Petitioner was charged with ten crimes, inter alia, one count of sexual conduct with a minor and one count of Petitioner filed a reply to Respondents' answer to his petition on September 12, 2008. ) ) ) ) ) ) ) ) ) ) )

CIV 07-02263 PHX MHM (MEA) REPORT AND RECOMMENDATION

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attempted molestation of a child. On July 31, 1998, Petitioner

See Answer, Exh. A & Exh. B. into a written plea

entered

agreement with regard to these charges, providing that he would plead guilty to two counts and that the other eight counts would be dismissed. See id., Exh. B. The plea agreement provided See Petitioner would plead guilty to one count of sexual conduct with a minor and one count of attempted child molestation. id., Exh. B. jury trial. Id., Exh. B. The plea agreement waived Petitioner's right to a The plea agreement states that the

sentencing court would impose a sentence within the minimum and maximum range provided for in the plea agreement, noting a presumptive sentence of 10 to 20 years imprisonment and a maximum sentence of 15 to 27 years imprisonment. 2. On October 23, 1998, Petitioner was sentenced to an aggravated term of 22 years imprisonment pursuant to his conviction for sexual conduct with a minor and to a consecutive term of lifetime probation pursuant to his conviction for attempted chid molestation. Id., Exh. C. Petitioner filed a timely action seeking state postconviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, on November 5, 1998. Id., Exh. D. Petitioner was Although appointed counsel, who averred to the state court that he could find no meritorious grounds for relief. Id., Exh. E. allowed extra time to do so by the state court, Petitioner did not file a pro se brief in this Rule 32 action. Exh. G. The state trial court
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Id., Exh. B at

Id., Exh. F & action for

dismissed

the

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Petitioner's failure to prosecute on September 3, 1999. id., Exh. G. Petitioner Exh. C. filed another state action for

See postId.,

conviction relief pursuant to Rule 32 in June of 2005.

Petitioner asserted he was entitled to relief from his Id., Exh. H. The state trial court The state court review and,

sentences based on the United States Supreme Court's decision in Blakely v. Washington. dismissed the Rule 32 action on June 30, 2005, concluding the action was not timely filed. was not retroactive to Id., Exh. H. on concluded Blakely did not apply to Petitioner's case because it cases collateral accordingly, that Petitioner's Rule 32 action did not fall within an exception to the state's timeliness rule. H. Petitioner belatedly sought review of this decision by the Arizona Court of Appeals, which dismissed his petition for review as untimely on January 19, 2006. Id., Exh. J. Petitioner sought review by the Arizona Supreme Court, which declined review on April 12, 2007. See id., Exh. K. In his federal habeas petition Petitioner asserts he is entitled to relief because his right to meaningful access to the courts has been are violated. helping Petitioner inmates states and that file prison legal officials laws. not prepare Id., Exh.

pleadings with regard to illegal sentences or illegal probation Petitioner also asserts his sentence was improperly also argues his sentence
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aggravated based on facts found by a judge rather than a jury. Petitioner of lifetime probation

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violates his right to due process because it is not authorized by Arizona state statutes. II Analysis Relevant statute of limitations The Petition for Writ of Habeas Corpus is barred by the applicable statute of limitations as found in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. 2002). pendency See Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. the AEDPA provides filed that a petitioner for is However, of a

entitled to tolling of the statute of limitations during the "properly application state post-conviction or other collateral review with respect to the pertinent judgment or claim." Supp. 2008). 28 U.S.C. § 2244(d)(2)(2006 & See also Artuz v. Bennet, 531 U.S. 4, 8, 121 S.

Ct. 361, 363-64 (2000); Harris v. Carter, 515 F.3d 1051, 1053 (9th Cir. 2008), petition for cert. filed 77 U.S.L.W. 3058 (July 15, 2008) (No. 08-76). Because Petitioner pled guilty and thereby waived his right to a direct appeal, Petitioner's convictions and sentences became final upon the completion of any timely action seeking state post-conviction relief from his convictions and sentences. See Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (holding that, in Arizona, the statute of limitations began to run upon "the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or [upon] the expiration of the time
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for seeking such proceeding or review."). The state trial court dismissed Petitioner's action for state post-conviction relief for Petitioner's failure to prosecute any specific claim for relief on September 3, 1999. Petitioner did not seek review of this decision by the Arizona Court of Appeals. Accordingly, Petitioner had one year from that date, i.e., until September 3, 2000, to seek federal habeas relief, not counting any time during which the statute of limitations was statutorily tolled by the pendency of a properly-filed state action for post-conviction relief. v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001). Petitioner did not file any action for state or federal post-conviction relief after September 3, 1999 and before September 3, 2000. Petitioner's second state action for state Bunney

post-conviction relief could not and did not re-start the expired statute of limitations regarding his federal habeas action. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003), citing Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001); Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). A state-court petition that is filed after the expiration of the statute of limitations under the AEDPA does not revive the running of the limitations period. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001). Additionally, the untimely-filed state petition for post-conviction relief did not toll the statute of limitations on Petitioner's federal habeas action because a
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state petition that is not filed within the state's required time limit is not "properly filed." Pace v. DiGuglielmo, 544 U.S. 408, 413, 125 S. Ct. 1807, 1811-12 (2005). Because Petitioner did not file his federal habeas action within the period specified by the AEDPA, his petition for habeas relief may only considered if the AEDPA's time limitation may be "equitably" tolled in his case. (9th Cir. 2001). See Harris, 515 F.3d at 1053-54 & n.4; Allen v. Lewis, 255 F.3d 798, 800 The Ninth Circuit Court of Appeals has determined that equitable tolling of the filing deadline for a federal habeas petition is available only if extraordinary circumstances beyond the petitioner's control make it impossible to file a petition on time. See Harris, 515 F.3d at 1055-56 (discussing standard and holding equitable tolling was warranted when the petitioner had relied on prior Circuit Court of Appeals precedent regarding the timely filing of his petition); Malcom v. Payne, 281 F.3d 951, 962 (9th Cir. 2002). is only appropriate when external Equitable tolling rather than a forces,

petitioner's lack of diligence, account for the failure to file a timely claim. See Harris, 515 F.3d at 1055 (stating a petitioner's "oversight, miscalculation," or "negligence" would not warrant equitable tolling); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). A federal habeas petitioner seeking equitable tolling must also act with "reasonable" diligence throughout the period he seeks to toll. See e.g., Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1061 (9th Cir. 2007); Warren v. Garvin, 219 F.3d
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111, 113 (2d Cir. 2000); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). It is Petitioner's burden to establish that equitable tolling is warranted in his case. See Bryant, 499

F.3d at 1059-60 (holding the petitioner must establish a causal connection between the cause of his delay and the delay itself). In his reply to the answer to his petition, Petitioner asserts the plea agreement was unconstitutional because, as a result, Petitioner was "twice convicted & sentenced to illegally enhanced multiple sentences for same offense committed, on July 31, 1998." counsel Id. Docket No. 20 at 2. Petitioner further contends his ineffective because counsel was unconstitutionally

"participated in this scheme, to the Petitioner's prejudice." In his reply Petitioner discusses his right to due process further a alleges that the State of Arizona has of law and the doctrine of procedural default of habeas claims. Petitioner "constructed Offenders.'" v. Lane. vague, complex, unconstitutional sentencing

scheme that is bias[ed] & prejudice[d] towards `Indigent Sex Id. at 7. Petitioner also argues that he is entitled to the benefit of the Blakely decision, citing Teague Id. at 8-9. Petitioner further alleges Rule 32 is unconstitutional for the fact that it denies the Petitioner's right for access to the courts by rejecting claims of illegal sentences imposed, allowing the Public Defenders Office to client shop; diluting the effectiveness of counsel, the probability exists rather than not for the Attorney General's office to prosecute selectively & vindictively.... Id. at 10.

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Petitioner also contends his right to double jeopardy and equal protection were violated, and that the state committed a "Crawford Rule violation," citing Arizona Revised Statutes § 13-801. Id. at 13-14. Petitioner further maintains that he was denied his right to the effective assistance of counsel, i.e., that his criminal and plea proceedings counsel had a conflict of interest and that his post-conviction counsel was ineffective for failing to raise his double jeopardy and Sixth Amendment claims in his first Rule 32 action. Id. at 16. Petitioner asks the Court "to review claims presented in this case on the merits in the interest of justice & ends of justice...," asserting there has been a fundamental miscarriage of justice in his case. Id. at 20. Petitioner is not entitled to the equitable tolling of the statute of limitations. 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, 125 S. Ct. at 1814-15. Petitioner has not met his burden of establishing that there were extraordinary circumstances beyond his control which made it impossible for him to file a timely federal habeas petition, or that any state action was the "but for" cause for his failure to timely file his federal habeas action. specific See Brown v. Barrow, 512 F.3d 1304, 1306-07 (11th Cir. facts supporting their claim of extraordinary 2008) (holding the petitioner has a strong burden to plead circumstances). See also Pace, 544 U.S. at 418-19, 125 S. Ct.
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at 1815 (concluding that the petitioner was not entitled to equitable tolling because he was not misled or confused about the exhaustion of his state remedies and filing his federal habeas petition). Petitioner has not met his burden of establishing that there were extraordinary circumstances beyond his control which made it impossible for him to file a timely federal habeas petition, or that any state action was the cause for his failure to timely file his federal habeas action. See Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005) ("Each of the cases in which equitable tolling has been applied have involved wrongful conduct, either by state officials or, occasionally, by the petitioner's counsel."). Compare Sanchez

v. Cambra, 137 Fed. App. 989, 990 (9th Cir. 2005), cert. denied, 126 S. Ct. 1333 (2006); Corjasso v. Ayers, 278 F.3d 874, 877-78 (9th Cir. 2002). Petitioner does not claim he was misled about the statute of limitations or that Respondents acted to inhibit the filing of his federal habeas petition. applicable constitute tolling. filing period, and A petitioner's pro se incapacity do not status, ignorance of the law, lack of representation during the temporary extraordinary circumstances justifying equitable

See, e.g., Fisher v. Johnson, 174 F.3d 710, 714­716

(5th Cir. 1999); Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004) (holding that petitioner's misunderstanding of state's "rules, statutes, and the time period set forth therein do not justify equitable tolling").

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In

2006

the

United

States

Supreme

Court

denied

certiorari from a decision of the Seventh Circuit Court of Appeals concluding federal habeas petitioners were not entitled to equitable tolling of the AEDPA's statute of limitations based on a claim of actual innocence, thereby resolving a split among the Circuit Courts of Appeal on this issue. See Araujo v. Chandler, 435 F.3d 678, 680 (2005) (noting the contention that actual innocence is a freestanding exception to the AEDPA's limitations period is "an argument which has caused the courts a good deal of consternation."), cert. denied, 127 S. Ct. 39 (2006).1 See also Lisker v. Knowles, 463 F. Supp. 2d 1008, 1032-33 (C.D. Cal. 2006) (delineating the positions adopted by the various Circuit Courts of Appeal). However, the Court has previously determined that a petitioner's claim of actual innocence should be examined to determine if the petitioner has stated a colorable claim which

Prior to 2006, the Sixth, Seventh, Eight and Tenth circuits had adopted either a full or restricted actual innocence exception to the limitations period. "We have recently decided that `[p]risoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action.'" Araujo v. Chandler 435 F.3d 678, 680 (2005), cert. denied, 127 S. Ct. 39 (2006), quoting Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir. 2005); Souter v. Jones, 395 F.3d 577 (6th Cir. 2005) (holding that "equitable tolling of the one-year limitations period based on a credible showing of actual innocence is appropriate."). The First and Fifth Circuits had rejected or found irrelevant any claim of actual innocence in consideration of whether a habeas petition is time-barred, an approached modified by the Second Circuit. See Whitley v. Senkowski, 317 F.3d 223 (2nd Cir. 2003) (requiring that the district court determine whether there is, in fact, a showing of actual innocence); David v. Hall, 318 F.3d 343, 347-48 (1st Cir. 2003) (finding no miscarriage of justice exception to the AEDPA statute of limitations in case where the petitioner did not make even a predicate showing of innocence). -10-

1

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might

provide

for

equitable

tolling

of

the

statute

of

limitations "because serious constitutional questions involving the Due Process Clause, Suspension Clause, and Eighth Amendment could arise from preventing a petitioner who may be actually innocent from pursuing untimely habeas claims." Schriro, 2007 WL 2320535, at *3 (D. Ariz. 2007). Petitioner does not assert his actual innocence of the crimes of conviction, but asserts he was improperly sentenced and that the plea agreement violated his right to due process and was completed in violation of his right to the effective assistance of counsel. Petitioner, in essence, provides the Court with an argument regarding any procedural default of his claims, rather than a basis for the equitable tolling of the statute of limitations. III Conclusion Petitioner's petition for a writ of habeas corpus is barred by the statute of limitations applicable to it pursuant to the AEDPA. Petitioner has not shown that the circumstances of his case warrant application of equitable tolling so that this Court may address the merits of his petition for a writ of habeas corpus. IT IS THEREFORE RECOMMENDED that Mr. Gallegos' Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. Lindley v.

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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. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. the objections. Thereafter, the parties have ten (10) days within which to file a response to Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, Failure to 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge. DATED this 16th day of September, 2008.

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