Soto v. Schriro et al

Filing 13

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus : Recommending that the Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. Signed by Magistrate Judge Mark E Aspey on 10/30/09. (ESL, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MIGUEL A. SOTO, Petitioner, v. CHARLES L. RYAN, TERRY GODDARD, Respondents. _______________________________ ) ) ) ) ) ) ) ) ) ) CIV 09-00326 PHX FJM (MEA) REPORT AND RECOMMENDATION

TO THE HONORABLE FREDERICK J. MARTONE: On or about February 17, 2009, Petitioner filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Docket No. 12) on August 28, 2009. Respondents contend the action for habeas relief should be denied and dismissed because Petitioner failed to file his action within the applicable statute of limitations. to the answer to his petition. I Procedural History On August 26, 1999, Petitioner was indicted by a Maricopa County grand jury on one count of second degree murder. See Answer, Exh. A. On or about February 5, 2001, Petitioner entered into a written plea agreement allowing him to plead As of October 29, 2009, Petitioner has not filed a pleading in reply

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guilty to one count of manslaughter. would not be to sentenced an to a term of of

Id., Exh. B. more than 20

In the years

written plea agreement the state stipulated that Petitioner imprisonment. sentenced Exh. D. Petitioner timely initiated an action for state postconviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, the first appeal "of right" for an Arizona defendant who pleads guilty to the charges against them. (1) his sentence was improperly See id., Exh. E. on erroneous In his action for post-conviction relief Petitioner asserted: predicated information; (2) there were misrepresentations in the criminal history related in the presentence report; and (3) he received ineffective assistance of counsel. trial court denied relief. See id., Exh. G. 2003. See id., Exh. F. The state The state court summarily concluded Id., Exh. B. aggravated On June 26, 2001, Petitioner was term 15 years imprisonment

pursuant to his guilty plea to one count of manslaughter. Id.,

Petitioner had failed to present a colorable claim for relief. Petitioner sought review of this decision by Petitioner did not seek review of the the Arizona Court of Appeals which denied review on August 8, Id., Exh. H. denial of relief by the Arizona Supreme Court. More than five years later, on November 19, 2008, Petitioner filed a Petition for Review in the Arizona Appeals Court, however, he did not file a successive Rule 32 petition in the Maricopa County Superior Court. of Appeals denied review, See id., Exh. I. that the The Court successive concluding
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Petition for Review was untimely filed.

Id., Exh. I.

On February 17, 2009, Petitioner filed his pending Petition for Writ of Habeas Corpus. Petitioner contends he is entitled to relief from his conviction and sentence because, he argues, the state trial court erred by sentencing him in violation of Apprendi v. New Jersey and Blakely v. Washington. II Analysis The petition seeking a writ of habeas corpus is barred by the applicable statute of limitations found in the The Antiterrorism and Effective Death Penalty Act ("AEDPA").

AEDPA imposed a one-year statute of limitations on prisoners seeking federal habeas relief from their state convictions. See, e.g., Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002). The AEDPA provides that a petitioner is entitled to tolling of the statute of limitations during the pendency of a "properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim." U.S.C. § 2244(d)(2)(2006 & Supp. 2009). 28 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.), cert. denied, 129 S. Ct. 397 (2008). Because Petitioner pled guilty and thereby waived his right to a direct appeal, Petitioner's convictions and sentences became final at the conclusion of his first action for state post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. See Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (holding that, in Arizona, the statute of
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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 for seeking such proceeding or review."). The Arizona Court of Appeals denied relief in Petitioner's Rule 32 action on August 8, 2003. Therefore,

allowing for the time Petitioner could have sought review of this decision by the Arizona Supreme Court, the statute of limitations on Petitioner's federal habeas action began to run on or about September 10, 2003, and expired on or about September 11, 2004. See Tillema v. Long, 253 F.3d 494, 498 (9th

Cir. 2001); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Compare Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007); Riddle v. Kemna, 523 F.3d 850, 855 (8th Cir. 2008). Petitioner did not file his federal habeas action until February 17, 2009, more than four years after the statute of limitations expired. The action initiated by Petitioner in the state courts in 2008 could not and did not restart the alreadyexpired statute of limitations on Petitioner's federal habeas claims. 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).
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The Ninth Circuit Court of Appeals has recently stated that the Court should still determine whether a section 2254 petitioner is entitled to equitable tolling of the statute of limitations. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, A petitioner seeking equitable 1011 & n.2 (9th Cir. 2009).

tolling of the AEDPA's statute of limitations must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814-15 (2005). The Ninth Circuit Court of Appeals has determined 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 1054-55 & n.4; Gaston v. Equitable tolling is rather than a Palmer, 417 F.3d 1030, 1034 (9th Cir. 2003), modified on other grounds by 447 F.3d 1165 (9th Cir. 2006). only appropriate when external forces,

petitioner's lack of diligence, account for the failure to file a timely claim. Cir. 1999). Equitable tolling is to be rarely granted. F.2d 1298, 1300 (11th Cir. 2000) (holding this See Jones remedy is v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006); Stead v. Head, 219 "typically applied sparingly"). The petitioner must establish See Miles v. Prunty, 187 F.3d 1104, 1107 (9th

a causal connection between the alleged roadblock to their timely filing of their federal habeas petition and the actual
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failure to file the petition on time. 2005).

See Gaston, 417 F.3d at

1034; Lawrence v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. It is Petitioner's burden to establish that equitable Gaston, 417 F.3d at 1034. Petitioner has not responded to the assertion that his habeas claims are not timely. circumstance. Petitioner has Petitioner does not offer the not established that he is Court a reason why equitable tolling might be warranted in his entitled to equitable tolling of the statute of limitations because he has not presented evidence of due diligence or a factor outside the defense which resulted in his failure to timely file his habeas action. III Conclusion The federal habeas petition was not filed within the one-year statute of limitations and Petitioner has not provided a basis for equitable tolling of the statute of limitations. IT IS THEREFORE RECOMMENDED that Mr. Soto's Petition for Writ of Habeas Corpus 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. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of
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tolling is warranted in his case.

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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 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 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. 1121 (9th objections to See United States v. Reyna-Tapia, 328 F.3d 1114, 2003) any (en banc). or legal Failure to timely of file the factual determinations Cir.

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 30th day of October, 2009.

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