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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Peter Junior Alvarado,

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Petitioner,
vs.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-13-02190-PHX-SPL (DKD)
ORDER

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Petitioner Peter Junior Alvarado, who is confined in the Arizona State Prison

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Complex-Yuma in San Luis, Arizona, has filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable David K. Duncan, United States

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Magistrate Judge, issued a Report and Recommendation (“R&R”) (Doc. 20),

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recommending that the petition be denied. Petitioner has objected to the R&R. (Doc. 21.)

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

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I.

Background

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Following a jury trial in the Maricopa County Superior Court, Case No. 2005-

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118538, Petitioner was found guilty of first-degree murder, burglary in the first degree,

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and aggravated assault. (Doc. 15-1, Exh. C.)

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sentenced to concurrent terms of natural life for first degree murder, 10.5 years for

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burglary in the first degree, and 7.5 years for aggravated assault. (Doc. 15-1, Exh. D.)

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On December 14, 2007, Petitioner was

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The Court assumes the parties’ familiarity with underlying facts of conviction
which, for the reasons below, need not be reached on habeas review.

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On October 28, 2013, Petitioner filed the instant Petition for Writ of Habeas

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Corpus raising four claims for relief. (Doc. 1.) Respondents filed a limited answer, in

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which they argue that the petition should be dismissed because the petition is untimely,

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and the claims are either not cognizable or procedurally defaulted. (Doc. 15.)

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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 party is not entitled as of

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

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

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discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 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”).2 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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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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Here, the 1-year limitations period began to run when the time for seeking direct

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review expired. See 28 U.S.C. § 2244(d)(1)(A) (the 1-year limitations period runs from

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The AEDPA applies to federal habeas petitions filed after its effective date, April
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the date on which judgment became final by the conclusion of direct review or the

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expiration of the time for seeking such review). Following a timely direct appeal, the

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Arizona Court of Appeals issued its decision affirming Petitioner’s convictions on

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September 24, 2009. Petitioner did not file a petition for review. Therefore, judgment

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became final on October 24, 2009, when the time for filing a petition for review by the

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Arizona Supreme Court expired. See Ariz. R. Crim. P. 31.19(a) (“Within 30 days after

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the Court of Appeals issues its decision, any party may file a petition for review with the

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clerk of the Supreme Court”); White v. Klitzkie, 281 F.3d 920, 924, fnt. 4 (9th Cir. 2002)

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(“it is the decision of the state appellate court, rather than the ministerial act of entry of

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the mandate, that signals the conclusion of review”). It follows that, absent any tolling,

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the one-year limitations period would have commenced on October 25, 2009.

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B.

Statutory Tolling of Limitations Period

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Petitioner properly filed a notice of post-conviction relief on October 20, 2009.

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(Doc. 15-1, Exh. J.) Petitioner’s post-conviction relief proceedings remained pending and

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statutorily tolled the limitations period until August 1, 2012, when the Superior Court

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summarily denied his motion for reconsideration of the denial of his post-conviction

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relief petition. (Doc. 15-1, Exhs. O, Q.) See 28 U.S.C. § 2244(d)(2) (one-year limitations

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period is tolled during the time that a “properly filed application for State post-conviction

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or other collateral review with respect to the pertinent judgment or claim is pending”).

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The limitations period therefore began to run the following day on August 2, 2012.

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Petitioner objects to the R&R on the basis that the limitations period was

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statutorily tolled pending the Arizona Court of Appeal’s denial of his subsequent petition

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for review. (Doc. 21 at 4-5.) The Arizona Court of Appeals however, dismissed the

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appeal as untimely. (Doc. 15-1, Exh. S.) Because Petitioner did not timely seek review,

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no application for post-conviction relief was pending following the Superior Court’s

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denial on August 1, 2012, and the limitations period began to run again the following day

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on August 2, 2012. See Evans v. Chavis, 546 U.S. 189, 191 (2006) (an application for

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state post-conviction review is “pending” during the period between a lower court’s
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adverse determination and the filing of a timely appeal); Robinson v. Lewis, 795 F.3d 926,

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928-29 (9th Cir. 2015). Further, Petitioner’s subsequent special action was not an

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application for state post-conviction or other collateral review within the meaning of 28

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U.S.C. § 2244(d)(2), and did not toll the limitations period. See Duncan v. Walker, 533

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U.S. 167, 181 (2001). Thus, unless equitable tolling or an exception applies, the one-year

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limitations period ran until it expired on August 2, 2013.

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C.

Equitable Tolling of Limitations Period

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The Court finds that the Magistrate Judge also correctly found that Petitioner is

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not entitled to equitable tolling of the limitations period. See Holland v. Florida, 560 U.S.

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631, 649 (2010) (“a petitioner is entitled to equitable tolling only if he shows (1) that he

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has been pursuing his rights diligently, and (2) that some extraordinary circumstance

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stood in his way and prevented timely filing” his federal habeas petition (internal

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quotations omitted)).

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First, Petitioner objects to the R&R on the basis that he is entitled to equitable

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tolling because he was pursuing his rights diligently in state court during that time. (Doc.

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12 at 1.) This argument fails. Petitioner does not show that circumstances existed which

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prevented him from timely filing a federal habeas petition. He offers nothing to suggest

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that his failure to timely seek review in state court led to his ultimate failure to timely file

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a federal habeas petition. See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010).

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Absent an affirmative misstatement of law by a court, delays in court proceedings do not

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rise to the level of an extraordinary circumstance. Cf. Ford v. Pliler, 590 F.3d 782, 788–

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89 (9th Cir. 2009); Ortiz v. Stewart, 149 F.3d 923, 939, 941 (9th Cir. 1998).

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Second, Petitioner argues that he received ineffective assistance of counsel and is

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therefore entitled to equitable tolling pursuant to Martinez v. Ryan, 132 S. Ct. 1309

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(2012). The equitable rule in Martinez “applies only to the issue of cause to excuse the

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procedural default of an ineffective assistance of …counsel claim that occurred in a state

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collateral proceeding” and “has no application to the operation or tolling of the § 2244(d)

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statute of limitations” for filing federal habeas petitions. Chavez v. Sec’y, Fla. Dep’t of
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Corr., 742 F.3d 940, 943 (11th Cir. 2014) (citing Arthur v. Thomas, 739 F.3d 611, 629-

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631 (11th Cir. 2014)). See Manning v. Epps, 688 F.3d 177, 189 (5th Cir. 2012) (Martinez

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does not extend to the statute of limitations period under 28 U.S.C. § 2244(d)(1)(B));

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Madueno v. Ryan, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014) (“Martinez has no

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application to the statute of limitations in the AEDPA which governs Petitioner’s filing in

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federal court”).

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Third, Petitioner argues that he is entitled to equitable tolling due to his inability to

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timely obtain copies of his legal documents from and make appointments with the prison

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paralegal. True, in certain circumstances, a lack of access to legal resources or legal

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records may rise to the type of extraordinary circumstance that warrants equitable tolling.

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See Ramirez v. Yates, 571 F.3d 993, 1001-02 (9th Cir. 2009) (the petitioner “may be

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entitled to equitable tolling during the period he was without his legal materials if the

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deprivation of his legal materials made it impossible for him to file a timely § 2254

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petition in federal court”); Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000)

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(finding that unavailability of a copy of the AEDPA in a prison law library could be

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grounds for equitable tolling). However, this is not one of those instances. Petitioner does

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not allege that he was prevented from obtaining his legal files, or that the deprivation of

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his legal materials impeded his ability to timely file federal habeas petition. Rather, his

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complaints are generalized, and the fact that Petitioner filed a lengthy special petition in

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state court during the limitations period (Doc. 15-1 Exh. T) indicates that his access to

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legal materials or lack of assistance did not prevent him from filing a timely federal

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habeas petition.

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Lastly, Petitioner argues that the limitations period should be equitably tolled

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because mail delivery at the prison has been rerouted and he does not receive his mail on

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time. (Doc. 21 at 6.) He fails to explain, however, how delayed receipt of mail or

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notification made it impossible for him to timely file a federal habeas petition prior to the

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expiration of the limitations period in October 2013. See Ramirez v. Yates, 571 F.3d 993,

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997-98 (9th Cir. 2009).
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Therefore, because the instant habeas petition was filed more than two months

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after the limitations period expired, his claims are untimely.

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D.

Exception to the Limitations Period

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Petitioner does not argue, nor does the record show, that the “fundamental

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miscarriage of justice exception” is applicable and compels review of his time-barred

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claims. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (“an actual-innocence

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gateway claim” may serve as an exception to AEDPA’s limitations period) (adopting

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Schlup v. Delo, 513 U.S. 298, 314-15 (1995).

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IV.

Conclusion

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Having reviewed the record as a whole, Petitioner’s federal habeas claims are

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time-barred and his objections are without merit. The R&R will therefore be adopted in

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full. Accordingly,

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IT IS ORDERED:

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1.

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That the Magistrate Judge’s Report and Recommendation (Doc. 20) is

accepted and adopted by the Court;
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That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

(Doc. 1) 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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4.

That the Clerk of Court shall terminate this action.

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Dated this 29th day of July, 2016.

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Honorable Steven P. Logan
United States District Judge

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