Andrada-Pastrano v. Maricopa County Probation et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge Anderson's Report and Recommendation 23 is accepted and adopted by the Court; the Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 13 is denied an d dismissed with prejudice; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable; the Clerk shall terminate this action. Signed by Judge Steven P Logan on 7/30/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gerardo Edmundo Andrada-Pastrano,

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Petitioner,
vs.

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Kathy Waters, et al.,
Respondents.

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No. CV-12-02401-PHX-SPL
ORDER

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Before the Court is Petitioner Gerardo Edmundo Andrada-Pastrano’s Second

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Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 13).

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The Honorable Lawrence O. Anderson, United States Magistrate Judge, issued a Report

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and Recommendation (“R&R”) (Doc. 23), recommending that the petition be denied with

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prejudice; Petitioner has objected to the R&R (Docs. 25, 29, 31). For the following

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reasons, the Court accepts and adopts the R&R, and denies the petition.

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I.

Background

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In 1991, Petitioner was indicted in the Maricopa County Superior Court, Case No.

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CR 1991-007525, of two counts of sexual conduct; one count for sexual conduct with a

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minor under the age of fourteen, and one count for sexual conduct with a minor over the

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age of fourteen. (Doc. 19-1, Exh. A.) On November 4, 1992, Petitioner entered in to a

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plea of no contest to an amended count of attempted sexual abuse, a dangerous crime

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against children in the second degree and class 4 felony. (Doc. 19-1, Exhs. I, J.) Pursuant

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to a stipulation in the plea agreement, on December 7, 1992, Petitioner was sentenced to a

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period of 4-months’ incarceration, followed by seven years’ probation. (Doc. 19-1, Exh.

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L.)

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On November 1, 2012, Petitioner filed a Petition for Writ of Habeas Corpus in

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District Court (Doc. 1), and filed a Second Amended Petition on August 19, 2013 (Docs.

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12, 13), in which he raises five grounds for relief. Respondents filed an Answer (Doc.

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19), arguing that the petition should be dismissed as untimely, and alternatively, that

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Petitioner’s claims are procedurally defaulted and barred from federal habeas corpus

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review.

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II.

Standard of Review

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The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. §

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636(b)(1). The Court must undertake a de novo review of those portions of the R&R to

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which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v.

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Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled

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as of right to de novo review of evidence and arguments raised for the first time in an

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objection to the R&R, and whether the Court considers the new facts and arguments

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presented is discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir.

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2000).

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III.

Having reviewed the objected to recommendations de novo, the Court finds that

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Discussion

the Magistrate Judge correctly concluded that Petitioner’s claims are time-barred.

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The writ of habeas corpus affords relief to persons in custody pursuant to the

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judgment of a State court in violation of the Constitution, laws, or treaties of the United

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States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).1 28 U.S.C. § 2244.

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The AEDPA imposes a 1-year statute of limitations in which “a person in custody

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The AEDPA applies to federal habeas petitions filed after its effective date, April
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pursuant to the judgment of a State court” can file a federal petition for writ of habeas

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corpus. 28 U.S.C. § 2244(d)(1).

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A.

Commencement of Limitations Period

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Petitioner was sentenced in 1992, and his conviction became final upon the

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expiration of the time for seeking an “of-right” petition for post-conviction review under

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Rule 32 of the Arizona Rules of Criminal Procedure in 1993. See Ariz. R. Crim. P.

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32.4(a), 32.9(c); Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007); Gonzalez v.

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Thaler, 565 U.S. __, 132 S. Ct. 641, 656 (2012). Because Petitioner’s conviction became

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final well before the enactment of the AEDPA however, the limitations period did not

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commence until the day after it became effective, April 25, 1996. See Patterson v.

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Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).

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Petitioner objects to the R&R on the basis that the limitations period should be

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calculated from the date of discovery of the factual predicate of his claim. See 28 U.S.C.

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§ 2244(d)(1)(D) (the 1-year limitations period may also run from “the date on which the

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factual predicate of the claim or claims presented could have been discovered through the

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exercise of due diligence.”). (Doc. 31 at 2.) Namely, Petitioner points to his discovery of

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1992 police reports that show the victims in his case made similar allegations against two

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other men. He maintains that his federal habeas claims could not have been advanced

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until he obtained those police reports in 2008. As addressed by the Magistrate Judge

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however, Petitioner had listed these men as trial witnesses on his behalf (see Doc. 19-1,

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Exh. W), and was aware that charges had been brought against them (see Doc. 19-1, Exh.

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D) prior to accepting a plea. Thus, although Petitioner may not have obtained a copy of

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the police reports until 2008, he was aware of the facts underlying claims at the time his

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judgment became final. Petitioner therefore cannot benefit from calculation under 28

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U.S.C. § 2244(d)(1). Absent any tolling, it follows that the 1-year limitations period

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expired in April 1997.

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B.

Statutory Tolling of Limitations Period

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Petitioner’s first notice of post-conviction relief was not filed until January 30,
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2008 (Doc. 19-1, Exh. P), almost eleven years after the 1-year statute of limitations

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period had expired. As a result, neither the first notice of post-conviction relief, nor

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subsequent notices and petitions, tolled the limitations period under 28 U.S.C. §

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2244(d)(2). See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (once the AEDPA

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limitations period expires, a subsequently filed petition for post-conviction relief cannot

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restart the statute of limitations); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

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2003) (state petition filed after the expiration of AEDPA’s one-year period does not

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revive a limitations period that ended before state petition was filed).

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Even assuming the factual predicate of Petitioner’s habeas claims could not have

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been previously discovered and the limitations period commenced in 2008, he would not

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have benefited from statutory tolling, and his federal habeas petition would remain

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untimely. Petitioner’s post-conviction relief petitions were dismissed as untimely (Docs.

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19-1, Exh. W; 19-2, Exh. CC; 19-3, Exh. LL) and would not have tolled the limitations

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period. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state court

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rejected petitioner’s PCRA petition as untimely, it was not ‘properly filed,’ and he is not

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entitled to statutory tolling under § 2244(d)(2)”). Therefore, under this hypothetical, the

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limitations period would have expired one year later in 2009.

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C.

Equitable Tolling of Limitations Period

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Petitioner objects that the R&R wrongly found that he was not entitled to equitable

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tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010) (“a petitioner is entitled to

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equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and

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(2) that some extraordinary circumstance stood in his way and prevented timely filing”

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his federal habeas petition) (internal quotations omitted). Petitioner objects by essentially

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rearguing the underlying merits of his ineffective assistance of counsel and Brady claims,

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and complains of generalized injustice by the state court. (Docs. 25, 29.) These

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arguments however, have no bearing on whether extraordinary circumstances prevented

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Petitioner from filing a timely federal habeas corpus petition. Rather, they merely

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challenge conduct that occurred in state court. Petitioner’s challenges regarding whether
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he exhausted his claims and his reliance on Martinez v. Ryan, 566 U.S. __, 132 S. Ct.

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1309 (2012) are also unavailing, because Martinez does not excuse the failure to timely

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file a federal habeas petition within the statute of limitations period.

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Therefore, because Petitioner filed his original federal habeas petition in 2012,

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more than fifteen years after the deadline, and is not entitled to tolling, his claims are

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time-barred.2

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D.

Innocence Exception to Limitations Period

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Lastly, Petitioner objects to the R&R on the basis that his credible claim of actual

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innocence entitles him to have the merits of his petition considered. “[A]n actual-

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innocence gateway claim” may serve as an exception to AEDPA’s limitations period.

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McQuiggin v. Perkins, 569 U.S. __, 133 S. Ct. 1924, 1928 (2013) (also referred to as a

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“fundamental miscarriage of justice exception”) (adopting Schlup v. Delo, 513 U.S. 298,

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314-15 (1995), holding actual innocence is an exception to procedurally defaulted

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claims). Petitioner must establish that a constitutional error in his plea proceeding “has

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probably resulted in the conviction of one who is actually innocent.” Bousley v. United

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States, 523 U.S. 614, 623 (1998) (internal quotation omitted). This exception is applied in

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rare instances, and a “tenable actual-innocence gateway” claim will not be found unless

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the petitioner “persuades the district court that, in light of the new evidence, no juror,

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acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”

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McQuiggin, 133 S. Ct. at 1928 (citing Schlup, 513 U.S. at 329). “To be credible, such a

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claim requires petitioner to support his allegations of constitutional error with new

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reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

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accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Lee v. Lampert,

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In 2010, Petitioner was indicted for failure to register as a sex offender, and
subsequently entered in to a guilty plea to an amended count of presentment of false
instrument for filing. (Doc. 19-2, Exh. AA.) Prior to his plea and sentencing, in 2011,
Petitioner filed a federal habeas petition in District Court, which was dismissed as
premature (Doc. 19-3, Exh. II). The Court notes that, under the same reasoning here, the
2011 petition was also untimely at the time it was filed, and would not have produced a
different outcome. Cf. Sossa v. Diaz. 729 F.3d 1225, (9th Cir. 2013) (discussing when a
federal court’s order may warrant equitable tolling).
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653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 133 S. Ct. at 1927 (explaining the

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significance of an “[u]nexplained delay in presenting new evidence”).

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The Court agrees with the Magistrate Judge’s reasoning, and finds Petitioner does

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not present a gateway claim that meets the Schlup threshold. Petitioner maintains that

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there is a variety of evidence that existed in other cases involving the same victims and

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different men that should have been available to Petitioner in state court that would have

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proved his innocence and deterred him from accepting a plea. He argues that testing of

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medical evidence taken from a victim in one of the related cases, when considered in

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conjunction with the police reports from others, would have made his innocence evident.

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Assuming, without deciding, that this evidence would cast doubt on the victims’

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credibility, it does not present a tenable actual innocence claim. The evidence does not

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disprove the victims’ allegations against the other men, prove that the victims’

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accusations against Petitioner were fabricated, or is otherwise exonerating. In order to

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qualify for the innocence gateway exception, Petitioner must present “evidence of

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innocence so strong that a court cannot have confidence in the outcome of the trial”

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should he have rejected his plea, not evidence that is merely favorable and might have

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lessened the strength of the prosecution’s case. Schlup, 513 U.S. at 316. This Court

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cannot say that, in assessing the likely impact of this evidence, that no reasonable juror

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could have voted to find him guilty. See Lee v. Lampert, 653 F.3d 929, 945 (9th Cir.

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2011); McQuiggin, 133 S. Ct. at 1936. Therefore, Petitioner has not shown that there is

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new evidence of actual innocence that justifies review of his time-barred claims.

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IV.

Conclusion

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Having reviewed the record as a whole, and finding none of Petitioner’s objections

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have merit, the R&R will be adopted in full. For the same reasons the Court finds that the

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petition is time-barred and that he has not presented a tenable innocence gateway claim,

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Petitioner’s request for an evidentiary hearing and objection to the Magistrate Judge’s

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denial of his request to conduct discovery equally fails. See Stewart v. Cate, 757 F.3d

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929, 942 (9th Cir. 2014) (evidentiary development is not required where, even if the new
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evidence is fully credited, it would not entitle him to relief). Accordingly,

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IT IS ORDERED:

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1.

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That Magistrate Judge Anderson’s Report and Recommendation (Doc. 23)

is accepted and adopted by the Court;
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That the Second Amended Petition for Writ of Habeas Corpus pursuant to

28 U.S.C. § 2254 (Doc. 13) is denied and dismissed with prejudice;
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That a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because the dismissal of the Petition is justified by a plain

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procedural bar and jurists of reason would not find the procedural ruling debatable; and

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That the Clerk of Court shall terminate this action.

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Dated this 30th day of July, 2015.

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Honorable Steven P. Logan
United States District Judge

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