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)

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