Alvarado v. Escapule et al

Filing 22

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 20 - The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. A Certificate of Appealability and leave to proceed in forma pa uperis 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; and the Clerk of Court shall terminate this action. (See document for further details). Signed by Judge Steven P Logan on 7/29/16. (LAD)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Peter Junior Alvarado, 9 10 Petitioner, vs. 11 12 Charles L. Ryan, et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-13-02190-PHX-SPL (DKD) ORDER 15 Petitioner Peter Junior Alvarado, who is confined in the Arizona State Prison 16 Complex-Yuma in San Luis, Arizona, has filed a Petition for Writ of Habeas Corpus 17 pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable David K. Duncan, United States 18 Magistrate Judge, issued a Report and Recommendation (“R&R”) (Doc. 20), 19 recommending that the petition be denied. Petitioner has objected to the R&R. (Doc. 21.) 20 For the following reasons, the Court accepts and adopts the R&R, and denies the petition. 21 I. Background 22 Following a jury trial in the Maricopa County Superior Court, Case No. 2005- 23 118538, Petitioner was found guilty of first-degree murder, burglary in the first degree, 24 and aggravated assault. (Doc. 15-1, Exh. C.) 25 sentenced to concurrent terms of natural life for first degree murder, 10.5 years for 26 burglary in the first degree, and 7.5 years for aggravated assault. (Doc. 15-1, Exh. D.) 1 On December 14, 2007, Petitioner was 27 1 28 The Court assumes the parties’ familiarity with underlying facts of conviction which, for the reasons below, need not be reached on habeas review. 1 On October 28, 2013, Petitioner filed the instant Petition for Writ of Habeas 2 Corpus raising four claims for relief. (Doc. 1.) Respondents filed a limited answer, in 3 which they argue that the petition should be dismissed because the petition is untimely, 4 and the claims are either not cognizable or procedurally defaulted. (Doc. 15.) 5 II. Standard of Review 6 The Court may accept, reject, or modify, in whole or in part, the findings or 7 recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 8 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to 9 which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. 10 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). However, a party is not entitled as of 11 right to de novo review of evidence and arguments raised for the first time in an objection 12 to the R&R, and whether the Court considers the new facts and arguments presented is 13 discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000). 14 III. Having reviewed the objected to recommendations de novo, the Court finds that 15 16 Discussion the Magistrate Judge correctly concluded that Petitioner’s claims are time-barred. 17 The writ of habeas corpus affords relief to persons in custody pursuant to the 18 judgment of a State court in violation of the Constitution, laws, or treaties of the United 19 States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the 20 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).2 28 U.S.C. § 2244. 21 The AEDPA imposes a 1-year statute of limitations in which “a person in custody 22 pursuant to the judgment of a State court” can file a federal petition for writ of habeas 23 corpus. 28 U.S.C. § 2244(d)(1). 24 A. Commencement of Limitations Period 25 Here, the 1-year limitations period began to run when the time for seeking direct 26 review expired. See 28 U.S.C. § 2244(d)(1)(A) (the 1-year limitations period runs from 27 2 28 The AEDPA applies to federal habeas petitions filed after its effective date, April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). 2 1 the date on which judgment became final by the conclusion of direct review or the 2 expiration of the time for seeking such review). Following a timely direct appeal, the 3 Arizona Court of Appeals issued its decision affirming Petitioner’s convictions on 4 September 24, 2009. Petitioner did not file a petition for review. Therefore, judgment 5 became final on October 24, 2009, when the time for filing a petition for review by the 6 Arizona Supreme Court expired. See Ariz. R. Crim. P. 31.19(a) (“Within 30 days after 7 the Court of Appeals issues its decision, any party may file a petition for review with the 8 clerk of the Supreme Court”); White v. Klitzkie, 281 F.3d 920, 924, fnt. 4 (9th Cir. 2002) 9 (“it is the decision of the state appellate court, rather than the ministerial act of entry of 10 the mandate, that signals the conclusion of review”). It follows that, absent any tolling, 11 the one-year limitations period would have commenced on October 25, 2009. 12 B. Statutory Tolling of Limitations Period 13 Petitioner properly filed a notice of post-conviction relief on October 20, 2009. 14 (Doc. 15-1, Exh. J.) Petitioner’s post-conviction relief proceedings remained pending and 15 statutorily tolled the limitations period until August 1, 2012, when the Superior Court 16 summarily denied his motion for reconsideration of the denial of his post-conviction 17 relief petition. (Doc. 15-1, Exhs. O, Q.) See 28 U.S.C. § 2244(d)(2) (one-year limitations 18 period is tolled during the time that a “properly filed application for State post-conviction 19 or other collateral review with respect to the pertinent judgment or claim is pending”). 20 The limitations period therefore began to run the following day on August 2, 2012. 21 Petitioner objects to the R&R on the basis that the limitations period was 22 statutorily tolled pending the Arizona Court of Appeal’s denial of his subsequent petition 23 for review. (Doc. 21 at 4-5.) The Arizona Court of Appeals however, dismissed the 24 appeal as untimely. (Doc. 15-1, Exh. S.) Because Petitioner did not timely seek review, 25 no application for post-conviction relief was pending following the Superior Court’s 26 denial on August 1, 2012, and the limitations period began to run again the following day 27 on August 2, 2012. See Evans v. Chavis, 546 U.S. 189, 191 (2006) (an application for 28 state post-conviction review is “pending” during the period between a lower court’s 3 1 adverse determination and the filing of a timely appeal); Robinson v. Lewis, 795 F.3d 926, 2 928-29 (9th Cir. 2015). Further, Petitioner’s subsequent special action was not an 3 application for state post-conviction or other collateral review within the meaning of 28 4 U.S.C. § 2244(d)(2), and did not toll the limitations period. See Duncan v. Walker, 533 5 U.S. 167, 181 (2001). Thus, unless equitable tolling or an exception applies, the one-year 6 limitations period ran until it expired on August 2, 2013. 7 C. Equitable Tolling of Limitations Period 8 The Court finds that the Magistrate Judge also correctly found that Petitioner is 9 not entitled to equitable tolling of the limitations period. See Holland v. Florida, 560 U.S. 10 631, 649 (2010) (“a petitioner is entitled to equitable tolling only if he shows (1) that he 11 has been pursuing his rights diligently, and (2) that some extraordinary circumstance 12 stood in his way and prevented timely filing” his federal habeas petition (internal 13 quotations omitted)). 14 First, Petitioner objects to the R&R on the basis that he is entitled to equitable 15 tolling because he was pursuing his rights diligently in state court during that time. (Doc. 16 12 at 1.) This argument fails. Petitioner does not show that circumstances existed which 17 prevented him from timely filing a federal habeas petition. He offers nothing to suggest 18 that his failure to timely seek review in state court led to his ultimate failure to timely file 19 a federal habeas petition. See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010). 20 Absent an affirmative misstatement of law by a court, delays in court proceedings do not 21 rise to the level of an extraordinary circumstance. Cf. Ford v. Pliler, 590 F.3d 782, 788– 22 89 (9th Cir. 2009); Ortiz v. Stewart, 149 F.3d 923, 939, 941 (9th Cir. 1998). 23 Second, Petitioner argues that he received ineffective assistance of counsel and is 24 therefore entitled to equitable tolling pursuant to Martinez v. Ryan, 132 S. Ct. 1309 25 (2012). The equitable rule in Martinez “applies only to the issue of cause to excuse the 26 procedural default of an ineffective assistance of …counsel claim that occurred in a state 27 collateral proceeding” and “has no application to the operation or tolling of the § 2244(d) 28 statute of limitations” for filing federal habeas petitions. Chavez v. Sec’y, Fla. Dep’t of 4 1 Corr., 742 F.3d 940, 943 (11th Cir. 2014) (citing Arthur v. Thomas, 739 F.3d 611, 629- 2 631 (11th Cir. 2014)). See Manning v. Epps, 688 F.3d 177, 189 (5th Cir. 2012) (Martinez 3 does not extend to the statute of limitations period under 28 U.S.C. § 2244(d)(1)(B)); 4 Madueno v. Ryan, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014) (“Martinez has no 5 application to the statute of limitations in the AEDPA which governs Petitioner’s filing in 6 federal court”). 7 Third, Petitioner argues that he is entitled to equitable tolling due to his inability to 8 timely obtain copies of his legal documents from and make appointments with the prison 9 paralegal. True, in certain circumstances, a lack of access to legal resources or legal 10 records may rise to the type of extraordinary circumstance that warrants equitable tolling. 11 See Ramirez v. Yates, 571 F.3d 993, 1001-02 (9th Cir. 2009) (the petitioner “may be 12 entitled to equitable tolling during the period he was without his legal materials if the 13 deprivation of his legal materials made it impossible for him to file a timely § 2254 14 petition in federal court”); Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) 15 (finding that unavailability of a copy of the AEDPA in a prison law library could be 16 grounds for equitable tolling). However, this is not one of those instances. Petitioner does 17 not allege that he was prevented from obtaining his legal files, or that the deprivation of 18 his legal materials impeded his ability to timely file federal habeas petition. Rather, his 19 complaints are generalized, and the fact that Petitioner filed a lengthy special petition in 20 state court during the limitations period (Doc. 15-1 Exh. T) indicates that his access to 21 legal materials or lack of assistance did not prevent him from filing a timely federal 22 habeas petition. 23 Lastly, Petitioner argues that the limitations period should be equitably tolled 24 because mail delivery at the prison has been rerouted and he does not receive his mail on 25 time. (Doc. 21 at 6.) He fails to explain, however, how delayed receipt of mail or 26 notification made it impossible for him to timely file a federal habeas petition prior to the 27 expiration of the limitations period in October 2013. See Ramirez v. Yates, 571 F.3d 993, 28 997-98 (9th Cir. 2009). 5 Therefore, because the instant habeas petition was filed more than two months 1 2 after the limitations period expired, his claims are untimely. 3 D. Exception to the Limitations Period 4 Petitioner does not argue, nor does the record show, that the “fundamental 5 miscarriage of justice exception” is applicable and compels review of his time-barred 6 claims. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (“an actual-innocence 7 gateway claim” may serve as an exception to AEDPA’s limitations period) (adopting 8 Schlup v. Delo, 513 U.S. 298, 314-15 (1995). 9 IV. Conclusion 10 Having reviewed the record as a whole, Petitioner’s federal habeas claims are 11 time-barred and his objections are without merit. The R&R will therefore be adopted in 12 full. Accordingly, 13 IT IS ORDERED: 14 1. 15 16 17 18 That the Magistrate Judge’s Report and Recommendation (Doc. 20) is accepted and adopted by the Court; 2. That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice; 3. That a Certificate of Appealability and leave to proceed in forma pauperis 19 on appeal are denied because the dismissal of the Petition is justified by a plain 20 procedural bar and jurists of reason would not find the procedural ruling debatable; and 21 4. That the Clerk of Court shall terminate this action. 22 Dated this 29th day of July, 2016. 23 24 Honorable Steven P. Logan United States District Judge 25 26 27 28 6

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