Medrano v. Ryan et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION 14 : IT IS FURTHER ORDERED that Petitioner's Writ of Habeas Corpus (Doc. 1 ) is DENIED and DISMISSED WITH PREJUDICE. The Clerk of Court is directed to terminate this action and enter judgment according ly. IT IS FURTHER ORDERED that the docket shall reflect that the Court certifies, pursuant to 28 U.S.C. ' 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. (See document for further details). Signed by Judge G Murray Snow on 8/21/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CV-12-02539-PHX-GMS Camillo Castillo Medrano, III, ORDER Petitioner, 10 11 v. 12 Arizona Attorney General, Charles L. Ryan, Sheryl Watkins, 13 Respondents 14 15 Pending before this Court is a Petition for Writ of Habeas Corpus filed by 16 Petitioner Camillo Castillo Medrano III. (Doc. 1). Magistrate Judge Mark Aspey has 17 issued a Report and Recommendation (“R&R”) in which he recommended that the Court 18 deny the petition with prejudice; Castillo has objected to the R&R. (Docs. 14, 15.) 19 Because objections have been filed, the Court will review the petition de novo. See 20 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the 21 following reasons, the Court accepts the R&R and denies the petition. 22 BACKGROUND 23 On June 19, 2006, a jury found Petitioner Camillo Castillo Medrano III guilty of 24 three counts of sexual abuse, four counts of child molestation, and ten counts of sexual 25 conduct with a minor, all felonies under state law, after an eight-day trial. (Doc. 13-1, Ex. 26 PP.) The trial court sentenced Petitioner on August 30, 2006, to five years imprisonment 27 for the three counts of sexual abuse, to seventeen years imprisonment for the four counts 28 of molestation of a child, and to twenty years imprisonment for the ten counts of sexual 1 conduct with a minor, all of the sentences to be served consecutively. (Id., Exs. UU, VV.) 2 Petitioner timely appealed his conviction. On appeal, Petitioner argued that the 3 trial court abused its discretion by denying his motion for a directed verdict one of the 4 counts of child molestation. (Doc. 13-2, Ex. WW.) On December 11, 2007, the Arizona 5 Court of Appeals affirmed the conviction. (Id., Ex. YY.) Petitioner filed a petition for 6 review with the Arizona Supreme Court on January 15, 2008, but the Court denied 7 review on April 1, 2008. (Id., Ex. ZZ; Doc. 13-3, Ex. AAA.) Petitioner’s conviction 8 became final on July 1, 2008, when the time expired for seeking certiorari in his direct 9 appeal. 10 On June 18, 2008, Petitioner brought an action for post-conviction relief under 11 Arizona Rule of Civil Procedure 32. In his petition, he alleged newly-discovered 12 evidence and ineffective assistance of counsel at trial and during his appeal. (Doc. 13-3, 13 Ex. BBB.) Petitioner was appointed counsel to represent him in his Rule 32 action. (Id., 14 Ex. CCC.) On November 12, 2008, counsel filed a notice of completion of her post- 15 conviction review in which she concluded that she was not able to find colorable claims 16 to raise in a petition for post-conviction relief. (Id., Ex. DDD.) On December 29, 2009, 17 the Superior Court sua sponte dismissed the Rule 32 action because it did not receive 18 from Petitioner a pro se petition or request for an extension of time to file a petition. (Id., 19 Ex. MMM.) Petitioner did not seek review by the Arizona Court of Appeals of the 20 Superior Court’s dismissal. 21 Petitioner brought this federal habeas action on November 28, 2012. In his 22 petition, he argues for relief based on four grounds: (1) violation of his right to Due 23 Process in connection with his criminal proceedings; (2) ineffective assistance of trial and 24 appellate counsel; (3) violation of his right to a fair trial; and (4) ineffective assistance of 25 counsel regarding the issue of his competence based on the failure to appoint an 26 interpreter for him. (Doc. 1 at 6–9.) Respondents contend that Petitioner’s claims are 27 barred by the one-year statute of limitations under the Antiterrorism and Effective Death 28 Penalty Act of 1996 (“AEDPA”) and that his claims are procedurally barred because -2- 1 Petitioner did not exhaust relief available to him in the state courts. (Doc. 12 at 6–17.) DISCUSSION 2 3 I. STANDARD OF REVIEW 4 This Court “may accept, reject, or modify, in whole or in part, the findings or 5 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 6 the district judge must review the magistrate judge’s findings and recommendations de 7 novo if objection is made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 8 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 9 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna–Tapia, this Court concludes 10 that de novo review of factual and legal issues is required if objections are made, ‘but not 11 otherwise.’”). District courts are not required to conduct “any review at all . . . of any 12 issue that is not the subject of objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see 13 also 28 U.S.C. § 636(b)(1) (“[T]he court shall make a de novo determination of those 14 portions of the [R&R] to which objection is made.”). 15 The writ of habeas corpus affords relief to persons in custody in violation of the 16 Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006). The 17 writ may be granted by “the Supreme Court, any justice thereof, the district courts and 18 any circuit judge within their respective jurisdictions.” Id. § 2241(a). Review of petitions 19 for habeas corpus is governed by the AEDPA. Id. § 2244 et seq. (2006). 20 Under the AEDPA, the Court may not grant habeas relief unless it concludes that 21 the state’s adjudication of the claim (1) resulted in a decision that was contrary to, or 22 involved an unreasonable application of, clearly established federal law, as determined by 23 the Supreme Court of the United States, or (2) resulted in a decision that was based on an 24 unreasonable determination of the facts in light of the evidence presented in the state 25 court proceeding. 28 U.S.C. § 2254(d)(1)–(2). Nor may the Court grant habeas relief 26 under the AEDPA unless the petitioner has exhausted his claim in state court. 28 U.S.C. § 27 2254(b)(1)(A); see O’Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). 28 /// -3- 1 II. STATUTE OF LIMITATIONS 2 Pursuant to AEDPA, petitions for habeas corpus must be filed within one year of 3 the start of the limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) 4 (AEDPA “establishes a 1–year statute of limitations for filing a federal habeas corpus 5 petition”) (citing 28 U.S.C. § 2244(d)(1)). The limitations period begins to run when the 6 state conviction becomes final—either “upon ‘the conclusion of direct review or the 7 expiration of the time for seeking such review.’” White v. Klitzkie, 281 F.3d 920, 923 (9th 8 Cir. 2002) (quoting 28 U.S.C. § 2244(d)(1)(A)). The limitations period is subject to 9 statutory tolling under the terms of AEDPA or equitable tolling under extraordinary 10 circumstances. 11 A. 12 The one-year limitations period is statutorily tolled during any time in which a 13 “properly filed” state petition for post-conviction relief is “pending” before the state 14 court, and “must be tolled for the entire period in which a petitioner is appropriately 15 pursuing and exhausting his state remedies.” 28 U.S.C. § 2244(d)(2). Though Petitioner’s 16 conviction became final on July 1, 2008, the limitations period was tolled because he had 17 a pending petition for post-conviction relief in state court. The state trial court dismissed 18 Petitioner’s Rule 32 action on December 29, 2009. Because Petitioner had thirty days to 19 appeal the state court’s dismissal to the Arizona Court of Appeals, the statute of 20 limitations period began to run on January 30, 2010. Petitioner filed this habeas action on 21 November 28, 2012, approximately 22 months after the limitations period expired. (Doc. 22 1.) Unless there is good cause to extend the filing deadline for Petitioner’s federal habeas 23 action, the action is barred by the statute of limitations. Statutory Tolling 24 B. Equitable Tolling 25 In certain limited circumstances, the AEDPA’s one-year filing deadline may be 26 equitably tolled. See Holland v. Florida, ____ U.S. ____, ____, 130 S.Ct. 2549, 2590, 27 177 L.Ed.2d 130 (2010). A petitioner is entitled to equitable tolling if he can demonstrate 28 that “(1) he has been pursuing his rights diligently, and (2) that some extraordinary -4- 1 circumstance stood in his way” to prevent his timely filing. Pace, 544 U.S. at 418. 2 Nevertheless, equitable tolling is rare: the Court must “take seriously Congress’s desire to 3 accelerate the federal habeas process” and may equitably toll the AEDPA’s limitation 4 period only when the test’s “high hurdle is surmounted.” Calderon v. United States Dist. 5 Ct. (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1997), overruled in part on other grounds, 6 163 F.3d 530 (9th Cir. 1998). “Equitable tolling will not be available in most cases, as 7 extensions of time will only be granted if ‘extraordinary circumstances’ beyond a 8 prisoner’s control make it impossible to file a petition on time.” Id. at 1288. Petitioner 9 “must show that the ‘extraordinary circumstances’ were the but-for and proximate cause 10 of his untimeliness.” Allen v. Lewis, 255 F.3d 798, 801 (9th Cir. 2001). 11 Petitioner argues that equitable tolling is appropriate because he is a “Mexican 12 national who is unable to communicate, write or read English” and requires an interpreter 13 to explain legal and other matters to him. (Doc. 15 at 3.) Petitioner also contends that the 14 judicial system is too complex for him to navigate and hence, he was not able follow the 15 rules of procedure in order to timely file his appeal in state court or the habeas corpus 16 motion in this Court. 17 Petitioner’s reasons for delay do not constitute “extraordinary circumstances” that 18 merit equitable tolling. The Ninth Circuit has held that “a pro se petitioner’s lack of legal 19 sophistication is not, by itself, an extraordinary circumstance warranting equitable 20 tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Marsh v. 21 Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that ignorance of 22 the law, even for an incarcerated pro se petitioner, generally does not excuse prompt 23 filing.”). Further, a pro se prisoner’s illiteracy is insufficient to establish cause to toll the 24 statute of limitations. Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 25 1986); Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991). 26 Petitioner has not shown either that any external circumstances beyond his control 27 caused his habeas action to be untimely or that he diligently pursued his claims during the 28 time period in which tolling is needed. See Lott v. Mueller, 304 F.3d 918, 924–25 (9th -5- 1 Cir. 2002). He does not argue, for example, that he attempted to obtain assistance to 2 interpret the legal resources available to him to understand the procedure to file a habeas 3 action and was prevented from doing so. Accordingly, the pending Petition is barred 4 under the statute of limitations set out in the AEDPA. 5 III. PROCEDURAL DEFAULT 6 A petitioner is required to exhaust his claim in state court before seeking federal 7 habeas relief. 28 U.S.C. § 2254(b)(1)(A). To satisfy that requirement, a petitioner must 8 “give the state courts an opportunity to act on his claims before he presents those claims 9 to a federal court in a habeas petition.” O’Sullivan, 526 U.S. at 842. In Arizona, a 10 petitioner is required to “fairly present” all claims he seeks to assert in his habeas 11 proceeding first to the Arizona Court of Appeals either through direct appeal or the 12 state’s post-conviction relief proceedings. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th 13 Cir. 1999) (“[C]laims of Arizona state prisoners are exhausted for purposes of federal 14 habeas once the Arizona Court of Appeals has ruled on them.”). 15 For a petitioner to have fairly presented his claims to the appropriate state courts, 16 he must have described the operative facts and the federal legal theory that support his 17 specific claim. See Baldwin v. Reese, 541 U.S. 27, 29, 31 (2004); Scott v. Schriro, 567 18 F.3d 573, 582 (9th Cir. 2009) (per curiam) (“Full and fair presentation . . . requires a 19 petitioner to present the substance of his claim to the state courts, including a reference to 20 a federal constitutional guarantee and a statement of facts that entitle the petitioner to 21 relief.”), cert. denied, ___ U.S. ___, 130 S.Ct. 1014 (2009). The petitioner must alert the 22 state court to the federal nature of the right he claims, and broad appeals to “due process” 23 and similar concepts are insufficient. See Johnson v. Zenon, 88 F.3d 828, 830–31 (9th 24 Cir. 1996); Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). 25 If a petitioner has failed to “fairly present” his federal claims to the state courts— 26 and has therefore failed to fulfill AEDPA’s exhaustion requirement—the habeas court 27 must determine whether state remedies are still available for the petitioner; if not, those 28 claims are procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 -6- 1 (1991). 2 A habeas court will consider claims the petitioner has procedurally defaulted only 3 if he can demonstrate (1) cause for his failure to comply with state rules and actual 4 prejudice or, in the rare instance, (2) that a miscarriage of justice would occur. See Dretke 5 v. Haley, 541 U.S. 386, 388–89 (2004). “Cause” means “some objective factor external to 6 the defense impeded counsel’s efforts to comply with the State’s procedural rule.” 7 Murray v. Carrier, 477 U.S. 478, 488 (1986). Even if a petitioner demonstrates cause for 8 a procedural default, he must nevertheless show “prejudice” or that the supposed 9 constitutional error “worked to his actual and substantial disadvantage, infecting his 10 entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 11 170 (1982). Finally, a miscarriage of justice is shorthand for a situation “where a 12 constitutional violation has ‘probably resulted’ in the conviction of one who is ‘actually 13 innocent’ of the substantive offense.” Dretke, 541 U.S. at 393 (quoting Murray v. 14 Carrier, 477 U.S. 478, 496 (1986)). 15 Petitioner did not satisfy the requirement to “fairly present” his claims in his Rule 16 32 action. After the state trial court dismissed his action, Petitioner did not appeal the 17 dismissal to the Arizona Court of Appeals. His claims are procedurally defaulted because 18 he may not return to the state courts to pursue state remedies for those claims as they 19 would be untimely. 20 Further, Petitioner does not show cause for his procedural default. He contends 21 that he “had no way at the time to know that he was required by rule or procedure to avail 22 himself of these venues” because “no legal rule or procedure books are procured or 23 maintained in Spanish.” (Doc. 15 at 6.) Ignorance of the law and/or the lack of legal 24 knowledge do not constitute cause for a procedural default. See Tacho v. Martinez, 862 25 F.2d 1376, 1381 (9th Cir.1988) (pro se’s mental condition and reliance on incompetent 26 “jailhouse lawyers” is not cause); Hughes, 800 F.2d at 909 (pro se’s illiteracy is not 27 cause). Even if Petitioner cannot read English and legal resources were not available to 28 him in his native language, that fact also does not show cause for a procedural default. -7- 1 Vasquez v. Lockhart, 867 F.2d 1056, 1058 (9th Cir. 1988), cert. denied, 490 U.S. 1100 2 (1989). 3 The Court need not examine the existence of prejudice if the petitioner fails to 4 establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 5 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has failed to establish cause for his 6 procedural default. Because Petitioner’s claims are both barred under the AEDPA statute 7 of limitations and procedurally defaulted, the Court will not examine the merits of those 8 claims. 9 10 IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 14) is ADOPTED. 11 IT IS FURTHER ORDERED that Petitioner’s Writ of Habeas Corpus (Doc. 1) 12 is DENIED and DISMISSED WITH PREJUDICE. The Clerk of Court is directed to 13 terminate this action and enter judgment accordingly. 14 IT IS FURTHER ORDERED that the docket shall reflect that the Court certifies, 15 pursuant to 28 U.S.C. ' 1915(a)(3) and Federal Rules of Appellate Procedure 16 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. 17 Dated this 21st day of August, 2013. 18 19 20 21 22 23 24 25 26 27 28 -8-

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