Angulo v. Ryan et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION 10 . The Petition for Writ of Habeas Corpus 1 is DENIED with prejudice. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appea l, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). IT IS FURTHER ORDERED that the Clerk of Court is DIRECTED TO TERMINATE this action and enter judgment accordingly. Signed by Judge G Murray Snow on 5/6/2015. (ACL)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Antonio Gandarvilla Angulo, Petitioner, 10 11 ORDER v. 12 No. CV-14-2047-PHX-GMS Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the Court are Petitioner Antonio Gandarvilla Angulo’s Petition for 16 Writ of Habeas Corpus (Doc. 1) and United States Magistrate Judge James F. Metcalf’s 17 Report and Recommendation (“R&R”), which recommends that the Court deny the 18 Motion. (Doc. 10.) Because Petitioner filed timely objections to the R&R, the Court will 19 review the Petition de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 20 Cir. 2003). For the following reasons, the Court adopts the R&R and denies the Petition. 21 BACKGROUND 22 In December 2007, Petitioner was indicted in separate actions in Maricopa County 23 Superior Court on charges of Aggravated Driving Under the Influence (Case Nos. 24 CR2007-119913 and CR2007-008989). On April 3, 2008, Petitioner entered a plea of 25 guilty. There was no plea agreement. Petitioner was sentenced to fifteen years for the 26 charges in the first case and seventeen years for the charges in the second, to run 27 concurrently. 28 /// 1 Petitioner unsuccessfully sought relief through post-conviction proceedings in 2 state court in July 2008 and, again, in January 2011. Petitioner commenced the instant 3 action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on 4 September 15, 2014. (Doc. 1.) The ground for his petition is that his state trial counsel 5 was ineffective for advising Petitioner that he would be sentenced to no more than twelve 6 years if he pled guilty. Respondents argue that the Petition is untimely and Petitioner’s 7 state remedies have been procedurally defaulted. Judge Metcalf issued an R&R on 8 February 11, 2015 in which he recommended denial of the Petition with prejudice. (Doc. 9 10.) Petitioner filed objections to the R&R on March 02, 2015. (Doc. 11.) 10 DISCUSSION 11 The writ of habeas corpus affords relief to persons in custody in violation of the 12 Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Review of 13 Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death 14 Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244 et seq. Congress provided a one- 15 year statute of limitations for all applications for writs of habeas corpus filed pursuant 16 to 28 U.S.C. § 2254 challenging convictions and sentences rendered by state courts. Id. 17 § 2244(d). Petitions filed beyond the one year limitations period are barred and must be 18 dismissed. Id. 19 The one-year statute of limitations on habeas petitions begins to run on “the date 20 on which the judgment became final by the conclusion of direct review or the expiration 21 of the time for seeking such review.” Id. § 2244(d)(1)(A). For an Arizona, non-capital, 22 pleading defendant, the conviction becomes “final” at the conclusion of the first “of- 23 right” post-conviction proceeding under Arizona Rule of Criminal Procedure 32. 24 Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). To bring an of-right proceeding 25 under Rule 32, a pleading defendant must file a notice of his intent to file a Petition for 26 Post-Conviction Review within ninety days of conviction and sentencing. Id. at 715 27 (citing Ariz. R. Crim. P. 32.4(a)). 28 /// -2- 1 Petitioner’s first post-sentence collateral relief proceeding concluded on June 16, 2 2009.1 Petitioner had 30 days after this date, plus five days for mailing, to seek review by 3 the Arizona Court of Appeals. See State v. Savage, 117 Ariz. 535, 573 P.2d 1388 (1978) 4 (applying Ariz. R. Crim. P. 1.3 (add five days after service by mail) to deadline for 5 motion of rehearing under Ariz. R. Crim. P. 32.9(c)). Therefore, Petitioner had until July 6 21, 2009 to file a petition for review. Petitioner did not, and his time for “direct review” 7 expired on that date and his 2008 convictions became final. Barring any applicable 8 tolling, Petitioner's limitations period would have expired one year later on July 22, 2010. 9 Petitioner’s federal habeas Petition was not filed until September 15, 2014, and is, 10 therefore, untimely. Petitioner has shown no basis for statutory tolling under 28 U.S.C. 11 § 2244(d)(2). Moreover, the Petition does not rely on a new rule of constitutional law 12 made retroactive to cases on collateral review, see 28 U.S.C. § 2244(d)(1)(C), nor has 13 Petitioner presented evidence of “extraordinary circumstances” justifying the application 14 of equitable tolling. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). Petitioner’s pro 15 se status and his ineffective assistance of counsel claim are irrelevant to the untimeliness 16 of the instant petition, the latter because Petitioner’s IAC challenge solely involves 17 conduct relating to the state court proceedings. Finally, Petitioner makes no claim of 18 actual innocence that might warrant departure from the ordinary statute of limitations. 19 Petitioner’s reliance on Martinez v. Ryan, 132 S.Ct. 1309 (2012), is unavailing 20 because Martinez does not excuse untimeliness. In Martinez, the Supreme Court 21 recognized a narrow means by which a prisoner can show “cause” to excuse a state 22 procedural default based upon alleged IAC at trial by creating a narrow exception to the 23 well-established rule in Coleman v. Thompson, 501 U.S. 722, 731 (1991), that errors 24 committed by an attorney who is not constitutionally guaranteed to the defendant do not 25 establish cause. See id. at 1315. Under Martinez, a petitioner may establish cause for the 26 27 28 1 The Court dismissed the Rule 32 proceeding on June 15, 2009 after Defendant failed to file a Petition for Post-Conviction Relief. (Doc. 8, Ex. O.) The Order dismissing the proceeding was not filed until June 16. (See id.) Because it does not alter the outcome, the Court treats the matter as pending through June 16. -3- 1 procedural default of a claim of IAC by demonstrating two things: (1) “counsel in the 2 initial-review collateral proceeding, where the claim should have been raised, was 3 ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984)”; and 4 (2) “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, 5 which is to say that the prisoner must demonstrate that the claim has some merit.” Cook 6 v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 S.Ct. at 1318). 7 However, Martinez does not address or create an exception to the AEDPA statute of 8 limitations. Federal courts have consistently rejected the argument that Martinez provides 9 relief for time-barred petitions in the form of equitable tolling of the statute of 10 limitations. See Chavez v. Sec'y, Fla. Dep't Corr., 742 F.3d 940, 945 (11th Cir. 11 2014) (“Chavez's initial § 2254 petition was dismissed as untimely because it was filed 12 more than one year after his convictions became final on direct review, see 28 U.S.C. § 13 2244(d)(1)(A), and nothing in Martinez alters that fact.”); Manning v. Epps, 688 F.3d 14 177, 189 (5th Cir. 2012) (Martinez does not extend statute of limitations period under 28 15 U.S.C. § 2244(d)(1)(B); see also White v. Martel, 601 F.3d 882, 884 (9th Cir. 2010) (the 16 adequacy analysis used to decide procedural default issues is inapplicable to the 17 determination of whether a federal habeas petition was barred by the AEDPA statute of 18 limitations). Consequently, the Petition must be dismissed because it is time barred. 19 20 21 CONCLUSION Because the Court finds the Petition barred by the statute of limitations, it does not address the issues of IAC and procedural default. 22 IT IS THEREFORE ORDERED that Magistrate Judge Metcalf’s R&R (Doc. 23 10) is ACCEPTED and Petitioner Angulo’s Petition for Writ of Habeas Corpus (Doc. 1) 24 is DENIED with prejudice. 25 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 26 Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a 27 certificate of appealability because reasonable jurists would not find the Court’s 28 procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). -4- 1 2 3 IT IS FURTHER ORDERED that the Clerk of Court is DIRECTED TO TERMINATE this action and enter judgment accordingly. Dated this 6th day of May, 2015. 4 5 6 Honorable G. Murray Snow United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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