Valenzuela v. Ryan et al

Filing 14

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 11 - 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 8/31/16. (LAD)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Victor Valenzuela, 9 10 Petitioner, vs. 11 12 Charles L. Ryan, et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-14-02469-PHX-SPL (DKD) ORDER 15 Petitioner Victor Valenzuela, who is confined in the Arizona State Prison 16 Complex- Kingman, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 17 28 U.S.C. § 2254 (Doc. 1). The Honorable David K. Duncan, United States Magistrate 18 Judge, issued a Report and Recommendation (“R&R”) (Doc. 11), recommending that the 19 petition be denied as untimely. Petitioner has objected to the R&R. (Docs. 12, 13.) For 20 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 Pinal County Superior Court, Case No. 2008-01519, 23 Petitioner was found guilty of possession of a dangerous drug for sale, possession of drug 24 paraphernalia, and possession of marijuana. (Doc. 8-1, Exh. C.) 1 On September 8, 2010, 25 Petitioner was sentenced to concurrent terms of incarceration, the longest of which was a 26 10-year term of imprisonment. (Doc. 8-1, Exh. D.) 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 November 6, 2014, 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 as procedurally defaulted and barred in the alternative. (Doc. 8.) 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 March 4 23, 2011. (Doc. 8-2, Exh. H.) Petitioner did not file a timely petition for review to the 5 Arizona Supreme Court. (Doc. 8-2, Exh. I.) Therefore, judgment became final on April 6 23, 2011, when the time for filing a petition for review by the Arizona Supreme Court 7 expired. See Ariz. R. Crim. P. 31.19(a) (“Within 30 days after the Court of Appeals 8 issues its decision, any party may file a petition for review with the clerk of the Supreme 9 Court”); White v. Klitzkie, 281 F.3d 920, 924, fnt. 4 (9th Cir. 2002) (“it is the decision of 10 the state appellate court, rather than the ministerial act of entry of the mandate, that 11 signals the conclusion of review”). It follows that, absent any tolling, the one-year 12 limitations period would have commenced the following day. 13 B. Statutory Tolling of Limitations Period 14 Petitioner properly filed a notice of post-conviction relief on April 15, 2011. (Doc. 15 8-2, Exh. J.) Petitioner’s first post-conviction relief proceeding remained pending and 16 statutorily tolled the limitations period until August 14, 2013, when the Superior Court 17 dismissed the petition. (Doc. 8-2, Exh. P.) See 28 U.S.C. § 2244(d)(2) (one-year 18 limitations period is tolled during the time that a “properly filed application for State 19 post-conviction or other collateral review with respect to the pertinent judgment or claim 20 is pending”). Because Petitioner did not timely seek review of the petition (see Doc. 8-3, 21 Exh. R), no application for post-conviction relief was pending following the Superior 22 Court’s denial and the limitations period began to run again the following day on August 23 15, 2013. See Evans v. Chavis, 546 U.S. 189, 191 (2006) (an application for state post- 24 conviction review is “pending” during the period between a lower court’s adverse 25 determination and the filing of a timely appeal); Robinson v. Lewis, 795 F.3d 926, 928-29 26 (9th Cir. 2015); Stewart v. Cate, 757 F.3d 929, 935 (9th Cir. 2014) (“The time between 27 the denial of a petition in a lower… court and the filing of a subsequent petition in the 28 next higher state court does not toll the statute of limitations pursuant to 28 U.S.C. § 3 1 2244(d)(2) if the latter petition is not timely filed”) (citing Carey v. Saffold, 536 U.S. 214, 2 225 (2002)).3 3 Because Petitioner’s second post-conviction relief petition was dismissed as 4 untimely, it was not properly filed and did not toll the limitations period. (Doc. 8-3, Exhs. 5 V, Y); State v. Valenzuela, 2014 WL 4629065, at *1 (Ariz. Ct. App. Sept. 16, 2014.4 See 6 Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state court rejected 7 petitioner’s PCRA petition as untimely, it was not ‘properly filed,’ and he is not entitled 8 to statutory tolling under § 2244(d)(2)”). Thus, unless equitable tolling or an exception 9 applies, the one-year limitations period ran until it expired just short of three months prior 10 to the filing of his federal habeas petition on November 6, 2014. 11 C. Equitable Tolling of Limitations Period 12 The Court finds that the Magistrate Judge also correctly found that Petitioner is 13 not entitled to equitable tolling of the limitations period. See Holland v. Florida, 560 U.S. 14 631, 649 (2010) (“a petitioner is entitled to equitable tolling only if he shows (1) that he 15 has been pursuing his rights diligently, and (2) that some extraordinary circumstance 16 stood in his way and prevented timely filing” his federal habeas petition (internal 17 quotations omitted)). 18 Petitioner objects to the R&R on the basis that he received ineffective assistance 19 of counsel and is therefore entitled to equitable tolling pursuant to Martinez v. Ryan, 132 20 S. Ct. 1309 (2012). (Doc. 12, 13.) This argument is without merit. The equitable rule in 21 Martinez “applies only to the issue of cause to excuse the procedural default of an 22 ineffective assistance of …counsel claim that occurred in a state collateral proceeding” 23 3 24 25 26 27 28 In the R&R, the Magistrate Judge found that the post-conviction petition remained pending until September 18, 2013, the last day on which Petitioner could timely petition review of the Superior Court’s dismissal of his post-conviction relief proceeding. However, the Court need not address this difference in calculation as Petitioner has not objected to this finding and the difference between the dates are immaterial to the outcome of this decision. 4 In dismissing Petitioner’s second post-conviction proceedings, both the Superior Court and the Arizona Court of Appeals found that Petitioner had not identified a ground that could be raised in an untimely proceeding. See Ariz. R. Crim. P. 32.1(g); 32.4(a). 4 1 and “has no application to the operation or tolling of the § 2244(d) statute of limitations” 2 for filing federal habeas petitions. Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d 940, 3 943 (11th Cir. 2014) (citing Arthur v. Thomas, 739 F.3d 611, 629-631 (11th Cir. 2014)). 4 See Manning v. Epps, 688 F.3d 177, 189 (5th Cir. 2012) (Martinez does not extend to the 5 statute of limitations period under 28 U.S.C. § 2244(d)(1)(B)); Madueno v. Ryan, 2014 6 WL 2094189, at *7 (D. Ariz. May 20, 2014) (“Martinez has no application to the statute 7 of limitations in the AEDPA which governs Petitioner’s filing in federal court”). 8 D. Exception to the Limitations Period 9 Lastly, Petitioner does not argue, nor does the record show, that the “fundamental 10 miscarriage of justice exception” is applicable and compels review of his time-barred 11 claims. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (“an actual-innocence 12 gateway claim” may serve as an exception to AEDPA’s limitations period) (adopting 13 Schlup v. Delo, 513 U.S. 298, 314-15 (1995)). 14 IV. Conclusion 15 Having reviewed the record as a whole, Petitioner’s federal habeas claims are 16 time-barred, and his objections are without merit. The R&R will therefore be adopted in 17 full. Accordingly, 18 IT IS ORDERED: 19 1. 20 accepted and adopted by the Court; 2. 21 22 That the Magistrate Judge’s Report and Recommendation (Doc. 11) is That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice; 3. 23 That a Certificate of Appealability and leave to proceed in forma pauperis 24 on appeal are denied because the dismissal of the Petition is justified by a plain 25 procedural bar and jurists of reason would not find the procedural ruling debatable; and 26 /// 27 /// 28 /// 5 1 4. That the Clerk of Court shall terminate this action. 2 Dated this 31st day of August, 2016. 3 4 Honorable Steven P. Logan United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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