Millan v. Ryan et al

Filing 22

ORDER ADOPTING 15 Magistrate Judge's Report and Recommendation. 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 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 1/31/17. (LSP)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Alfonso Lopez Millan, 9 10 Petitioner, vs. 11 12 Charles L. Ryan, et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-14-01486-PHX-SPL ORDER 15 Petitioner Alfonso Lopez Millan has filed a Petition for Writ of Habeas Corpus 16 pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable Deborah M. Fine, United States 17 Magistrate Judge, has issued a Report and Recommendation (“R&R”) (Doc. 15), 18 recommending that the petition be denied on the basis that it is time-barred, and in the 19 alternative, on the basis that Petitioner’s claims are procedurally defaulted and barred 20 from review. Petitioner has objected to the R&R. (Doc. 19.) For the following reasons, 21 the Court accepts and adopts the R&R, and denies the petition. 22 I. Background 23 Following a jury trial in the Maricopa County Superior Court, Case No. CR2007- 24 172912-004, Petitioner was found guilty on three counts of kidnapping, one count of 25 aggravated assault, three counts of theft by extortion, and one count of smuggling. (Doc. 26 11-1, Exh. A.)1 On January 9, 2009, Petitioner was sentenced to a total aggregate term of 27 1 28 The Court assumes the parties’ familiarity with underlying facts of conviction which, for the reasons below, need not be reached here. 1 26 years of imprisonment. (Doc. 11-6, Exh. T.) 2 On June 26, 2014, Petitioner filed the instant Petition for Writ of Habeas Corpus 3 raising four claims for relief. (Doc. 1.) Respondents filed a limited answer, in which they 4 argue that the petition should be dismissed as untimely, and as procedurally defaulted and 5 barred in the alternative. (Doc. 11.) 6 II. Standard of Review 7 A district judge “may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files 9 a timely objection to an R&R, the district judge reviews de novo those portions of the 10 R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection 11 requires specific written objections to the findings and recommendations in the R&R. See 12 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 13 636(b)(1). It follows that the Court need not conduct any review of portions to which no 14 specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. 15 Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is 16 judicial economy). Further, a party is not entitled as of right to de novo review of 17 evidence or arguments which are raised for the first time in an objection to the R&R, and 18 the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d 19 615, 621-622 (9th Cir. 2000). 20 III. Discussion 21 A. Statute of Limitations 22 The writ of habeas corpus affords relief to persons in custody pursuant to the 23 judgment of a State court in violation of the Constitution, laws, or treaties of the United 24 States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the 25 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244. 26 The AEDPA imposes a 1-year statute of limitations in which “a person in custody 27 pursuant to the judgment of a State court” can file a federal petition for writ of habeas 28 corpus. 28 U.S.C. § 2244(d)(1). Having reviewed the objected to recommendations de 2 1 novo, the Court finds that the Magistrate Judge correctly concluded that Petitioner’s 2 claims are time-barred. 3 Petitioner does not dispute the Magistrate Judge’s calculation of the limitations 4 period, but instead objects to the finding that he is not entitled to equitable tolling. (Doc. 5 19 at 4.) “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has 6 been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 7 his way and prevented timely filing” his federal habeas petition. See Holland v. Florida, 8 560 U.S. 631, 649 (2010) (internal quotations omitted). 9 Petitioner claims that counsel’s negligence and abandonment constitutes 10 extraordinary circumstances, in that counsel stated that “he could find no colorable claim, 11 thereby leaving petitioner in no position to properly prepare and file his state post- 12 conviction proceedings.” (Doc. 19 at 2.) This alleged negligent behavior however does 13 not rise to the level of abandonment or is sufficiently egregious to qualify as an 14 extraordinary circumstance that warrants equitable tolling. See Holland, 560 U.S. at 651– 15 52; Towery v. Ryan, 673 F.3d 933, 942 (9th Cir. 2012). Even if counsel failed to raise a 16 colorable claim making his performance inadequate, counsel nonetheless did not 17 “abandon” Petitioner; counsel reviewed the record, filed a notice of his finding of no 18 colorable relief, and moved the court for an extension of time for Petitioner to file a pro 19 se post-conviction relief petition. (Doc. 11-6, Exh. W.) See Holland, 560 U.S. at 659 20 (abandonment consists of “near-total failure to communicate with petitioner or to respond 21 to petitioner’s many inquiries and requests.”); Gibbs v. Legrand, 767 F.3d 879, 887 (9th 22 Cir. 2014) (“even if his performance was inadequate, his conduct did not constitute 23 abandonment of his client and did not justify the conclusion that extraordinary 24 circumstances existed”). Petitioner does not claim that post-conviction counsel was 25 engaged to pursue additional state post-conviction relief, was engaged to pursue federal 26 habeas relief, or refused to pursue relief despite Petitioner’s diligent and reasonable 27 requests. Petitioner makes no claim that counsel failed to communicate with him, keep 28 him informed of material developments in his case, affirmatively misled him, or engaged 3 1 in similar egregious behavior. Cf. Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015) 2 (counsel’s misconduct was an extraordinary circumstance where counsel affirmatively 3 mislead petitioner); Gibbs, 767 F.3d at 885 (an attorney’s failure to communicate about a 4 key development in a client’s case can constitute an extraordinary circumstance). 5 Petitioner does not show that the actions of post-conviction relief counsel 6 prevented him from preparing and filing a federal habeas petition at any time nor offers 7 any connection between counsel’s performance and his own failure to file a timely 8 federal habeas petition. Petitioner’s pro se status or “lack of legal sophistication is not, by 9 itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 10 448 F.3d 1150, 1154 (9th Cir. 2006). See also Robinson v. Kramer, 588 F.3d 1212, 1216 11 (9th Cir. 2009) (citing Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000)); Fisher v. 12 Johnson, 174 F.3d 710, 714 (5th Cir. 2000) (“[I]gnorance of the law, even for an 13 incarcerated pro se petitioner, generally does not excuse prompt filing.”). Nor does 14 Petitioner’s alleged lack of comprehension of the English language merit equitable 15 tolling. “Lack of English proficiency can constitute an extraordinary circumstance for 16 equitable tolling purposes, but only when the petitioner is unable to procure legal 17 materials in his own language or to obtain translation assistance.” Yow Ming Yeh v. 18 Martel, 751 F.3d 1075, 1078 (9th Cir. 2014). See also Mendoza v. Carey, 449 F.3d 1065 19 (9th Cir. 2006) (finding that lack of access to Spanish language legal materials or 20 assistance could entitle habeas petitioner to equitable tolling). Instead, Petitioner’s state 21 court filings during the limitations periods (see e.g, Doc. 11-6, Exhs. CC, EE) belies the 22 claim that language, or any other extraordinary circumstance, caused his federal habeas 23 petition to be untimely filed.2 In short, Petitioner’s complaints do not show how he was prevented from filing a 24 25 2 26 27 28 The Court notes that Petitioner passingly states in his objection that “[j]ustice can never be done, if an individual does not possess the mental capacity to comprehend the severity of punishment…” (Doc. 19 at 4.) Petitioner however offers no evidence or argument in his objection, petition, or traverse of incompetency, and the record does not reveal the presence of some mental impairment. Therefore, this contention does not serve as a basis for tolling or other relief. 4 1 federal habeas petition while the statute of limitations was running. Therefore, Petitioner 2 is not entitled to equitable tolling and his petition is time-barred.3 3 B. Certificate of Appealability 4 Petitioner next objects to the R&R on the basis that he is entitled to a certificate of 5 appealability. This objection is also without merit. Here, a plain procedural bar is present 6 – his petition is barred by the statute of limitations. Petitioner did not file his federal 7 habeas petition until June 26, 2014, almost one year after the statute of limitations had 8 expired on July 28, 2013. He is not entitled to statutory tolling, equitable tolling, or an 9 exception.4 The Court finds no basis to conclude that jurists of reason would find this 10 procedural ruling debatable or that Petitioner should be allowed to proceed further. See 11 Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014); Slack v. McDaniel, 529 U.S. 12 473, 484 (2000). 13 C. 14 Petitioner lastly objects to the failure to be provided with an evidentiary hearing. 15 This objection is also rejected. Because Petitioner has not made a good-faith allegation 16 that would, if true, entitle him to equitable tolling or to an exception to the time-bar, he 17 has not demonstrated that an evidentiary hearing is warranted. See Orthel v. Yates, 795 18 F.3d 935, 940 (9th Cir. 2015) (“further factual development may be required when a 19 petitioner makes a good-faith allegation that tolling is warranted, depending on the 20 sufficiency of the record that was before the district court”); Roy v. Lampert, 465 F.3d 21 964, 969 (9th Cir. 2006) (“A habeas petitioner...should receive an evidentiary hearing 22 3 23 24 25 26 27 28 Evidentiary Hearing In his objection, Petitioner “asks the District Court to excuse any procedural default asserted by the Magistrate due to cause and prejudice under S. Ct. standards.” (Doc. 19 at 3.) This is insufficient to trigger de novo review of findings in the R&R. See Gutierrez v. Flannican, 2006 WL 2816599, at *2 (D. Ariz. Sept. 29, 2006) (where a Petitioner does not identify which of the Magistrate Judge’s findings he or she specifically disagrees with, the general objections to the R&R “are tantamount to no objection at all.”). 4 While Petitioner challenges the fairness of the outcome, he does not assert an actual-innocence gateway claim for purposes of an exception to AEDPA’s limitations period. See McQuiggin v. Perkins, 569 U.S. __, 133 S. Ct. 1924, 1928 (2013) (also referred to as a “fundamental miscarriage of justice exception”) (adopting Schlup v. Delo, 513 U.S. 298, 314-15 (1995)). 5 1 when he makes ‘a good-faith allegation that would, if true, entitle him to equitable 2 tolling.’”) (quoting Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir. 2003)). 3 IV. Conclusion 4 Having reviewed the record as a whole, Petitioner’s federal habeas claims are 5 time-barred and his objections are without merit. The R&R will therefore be adopted in 6 full. Accordingly, 7 IT IS ORDERED: 8 1. 9 10 11 12 That the Magistrate Judge’s Report and Recommendation (Doc. 15) 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 13 on appeal are denied because the dismissal of the Petition is justified by a plain 14 procedural bar and jurists of reason would not find the procedural ruling debatable; and 15 4. That the Clerk of Court shall terminate this action. 16 Dated this 31st day of January, 2017. 17 18 Honorable Steven P. Logan United States District Judge 19 20 21 22 23 24 25 26 27 28 6

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