Velasco v. Ryan et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED accepting Magistrate Judge John Z. Boyle's R&R (Doc. 8 ). Velasco's petition (Doc. 1 ) is denied with prejudice. The Clerk of the Court is directed to terminate this action. Signed by Judge David G Campbell on 3/11/16. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Armin Calbo Velasco,
Petitioner,

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ORDER

v.

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No. CV-15-00735-PHX-DGC

Charles L. Ryan, et al.,

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Respondents.

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On April 15, 2015, Petitioner Armin Calbo Velasco filed a pro se petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The Court referred the petition

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to Magistrate Judge John Z. Boyle. Doc. 2. On February 9, 2016, Judge Boyle issued a

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report and recommendation (“R&R”) that the Court dismiss the petition as untimely.

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Doc. 8. Petitioner filed a pro se objection to the R&R. Doc. 9. For the reasons set forth

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below, the Court will overrule his objection and adopt Judge Boyle’s recommendation

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that the petition be dismissed.

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I.

Background.

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A.

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The Arizona Court of Appeals provided the following summary of the crime

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Velasco’s Conviction.

underlying Velasco’s conviction:

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Late in the evening of August 2, 2003, [the perpetrator] went to the victim’s
home and knocked loudly on the door. The knocking woke the victim’s
ten-year-old brother who had been sleeping on the couch. The victim’s
brother opened the door slightly. [The perpetrator] then pushed open the

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door and grabbed the victim’s brother by the shirt and threw him behind the
couch. Because he had a sore throat, the victim’s brother did not yell out.
[The perpetrator] then went into the bedroom where the eight-year-old
victim and her sister slept. After unzipping his pants, [the perpetrator] went
to the victim’s bed, moved the victim so that she laid across the width of
the bed, and removed the victim’s pants and underwear. [The perpetrator]
then sexually touched and molested the victim. [The perpetrator] further
proceeded to engage in sexual conduct with the victim. During this
incident, the victim tried to get up, but [the perpetrator] was holding her
legs down with his legs. [The perpetrator] signaled to the victim that she
should be quiet and not tell anyone. The victim’s sister, who was sleeping
in the bed next to the victim, witnessed [the perpetrator’s] conduct with the
victim. Both the victim and her sister saw and recognized [the perpetrator]
at the time because he was their aunt’s boyfriend. As [the perpetrator] was
leaving the house, the victim’s brother also recognized him.
Doc. 7-1 at 83-84.

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At trial, the victim’s sister identified Velasco as the perpetrator. Id. at 85. A

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police officer also testified. According to the officer, Velasco admitted to consuming

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eight beers, getting into a fight with his girlfriend, and going to the victim’s house on the

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day in question. Id. He denied engaging in any inappropriate touching of the victim, but

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stated that he “didn’t remember” what happened while he was at the victim’s house. Id.

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Based on this evidence, Velasco was convicted of child molestation, sexual conduct with

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a minor under the age of twelve, kidnapping, and burglary. Id. Velasco was sentenced to

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life without possibility of parole for 69 years. Id.

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Petitioner’s conviction and sentence were affirmed by the Arizona Court of

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Appeals. Doc. 7-1 at 83. Petitioner’s appellate counsel then informed him that there was

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no reasonable probability that the Arizona Supreme Court would review his case, and he

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declined to seek further review. Doc. 1 at 21.

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B.

Statute of Limitations.

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The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

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establishes a one-year statute of limitations for habeas petitions filed by state prisoners.

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28 U.S.C. § 2244(d)(1). As relevant here, the limitations period runs from “the date on

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which the judgment became final by the conclusion of direct review or the expiration of

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the time for seeking such review.” § 2244(d)(1)(A). The limitations period is subject to

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both statutory tolling and equitable tolling. Statutory tolling is available for “[t]he time

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during which a properly filed application for State post-conviction or other collateral

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

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Equitable tolling is available where “extraordinary circumstances beyond a prisoner’s

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control ma[d]e it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964,

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968 (9th Cir. 2006). In addition, a petitioner is entitled to an equitable exception to the

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AEDPA’s statute of limitations if he makes “a credible showing of actual innocence.”

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§ 2244(d)(2).

McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013).

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C.

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Judge Boyle determined that (1) the AEDPA limitations period began to run on

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September 15, 2005, the last day on which Velasco could have petitioned the Arizona

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Supreme Court for direct review of his conviction; (2) the limitations period was subject

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to statutory tolling from October 28, 2005 through April 26, 2006, during which

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Velasco’s petition for post-conviction review (“PCR”) was pending; and (3) the

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limitations period was not subject to any additional statutory tolling because Velasco did

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not have a “properly filed” PCR petition pending in state court at any time after April 26,

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2006. Doc. 8 at 4. Next, Judge Boyle determined that Velasco was not entitled to

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equitable tolling because he had not shown that extraordinary circumstances made it

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impossible for him to file a timely habeas petition. Id. at 7. Finally, Judge Boyle

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determined that Velasco was not entitled to an equitable exception to the limitations

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period because he had not made a credible showing of actual innocence. Id. at 8. Based

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on these findings, Judge Boyle concluded that the limitations period expired on April 27,

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2007, making Velasco’s petition almost eight years late. Id.

The R&R.

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D.

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In his written objections, Velasco argues that (1) he is entitled to equitable tolling

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for the period between May 2006 and February 2008; (2) he is entitled to statutory tolling

Velasco’s Objections.

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for some period in March and April 2008; (3) he is actually innocent, and can show as

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much if an evidentiary hearing is held. Doc. 9 at 3-6. The Court reviews Velasco’s

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objections de novo; the portions of the R&R to which he does not object will be adopted

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without further discussion. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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II.

Analysis.

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A.

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Velasco contends that he is entitled to equitable tolling for the period between

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May 2006 and February 2008, when he diligently pursued his rights but was impeded by

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the fact that his legal materials were in the possession of an inmate legal assistant who

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had been transferred to another prison unit. Doc. 9 at 2-5. He also argues that he is

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entitled to statutory tolling for some period of time in March and April 2008, when he

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had a successive PRC petition pending. Id. at 3-4. Together, these periods constitute

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about two years. But Velasco’s petition is nearly eight years late, which means his claim

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would be untimely even if he were entitled to all of the tolling he claims. It is therefore

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unnecessary for the Court to determine whether Velasco would otherwise be entitled to

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tolling. See Watson v. Woodford, 247 F. App’x 938, 940 (9th Cir. 2007).

Tolling.

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B.

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The ADEPA’s statute of limitations does not apply to habeas petitions that make

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“a credible showing of actual innocence.” McQuiggin, 133 S. Ct. at 1931. To make such

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a showing, a petitioner must present “new reliable evidence – whether it be exculpatory

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scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that

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was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). The petitioner

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must show that, if the new evidence had been presented at trial, “it is more likely than not

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that no reasonable juror would have convicted the petitioner.” McQuiggin, 133 S. Ct. at

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1933 (citing Schlup, 513 U.S. at 325) (internal formatting omitted).

Actual Innocence.

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The Ninth Circuit has explained that “a habeas petitioner should receive an

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evidentiary hearing when he makes a good-faith allegation that would, if true, entitle him

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to equitable tolling.” Roy, 465 F.3d at 969. The Ninth Circuit has not specifically

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“articulat[ed] a legal standard regarding when an evidentiary hearing on a gateway

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Schlup claim is required.” Stewart v. Cate, 757 F.3d 929, 941 (9th Cir. 2014). It is clear,

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however, that conclusory allegations about the existence of new evidence do not suffice.

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As Schlup explained, habeas courts are entitled to consider the “credibility of the

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affiants” and “probable reliability of [new] evidence” in deciding whether to hold an

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evidentiary hearing.

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understanding that the petitioner’s allegations regarding the existence of new evidence

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must be plausible and substantiated by some sort of evidentiary submission.

Schlup, 513 U.S. at 325.

Implicit in this formulation is an

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Velasco contends that DNA found on the victim did not match his DNA, alibi

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witnesses who were not called at trial could testify to his whereabouts on the night of the

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crime, and other witnesses could identify the person who actually committed the crime.

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Docs. 1 at 6; 9 at 5. Although an evidentiary hearing would be justified if there were

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reason to believe that Velasco could produce this evidence, see House v. Bell, 547 U.S.

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518, 540 (2006) (petitioner who presented new DNA evidence was entitled to pass

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through Schlup gateway); Garcia v. Portuondo, 334 F. Supp. 2d 446, 455-56 (S.D.N.Y.

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2004) (petitioner who presented credible alibi evidence was entitled to pass through

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Schlup gateway), Velasco provides nothing to support his assertions. He does not point

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to anything in the record indicating that a DNA sample was ever taken from the victim.

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He asserts that the prosecutor withheld exculpatory DNA evidence, but provides nothing

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to support this assertion. Nor does Velasco identify the witnesses he intends to call or

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explain what their testimony would be. He attaches some 39 pages of documents to his

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petition (Doc. 1), but they contain nothing but court records from the trial and appellate

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courts in this case. Those records do not discuss or contain any of the evidence Velasco

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asserts in support of his actual innocence, and he presents nothing else to support or

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corroborate his bare allegations regarding DNA evidence and exculpatory witnesses.

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In short, Velasco does not present any “new reliable evidence – whether it be

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exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

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evidence – that was not presented at trial.” Schlup, 513 U.S. at 324. Nor does he explain

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where or how this evidence could be found. Velasco therefore is not entitled to an

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evidentiary hearing on his claim of actual innocence.

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IT IS ORDERED:

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1.

Magistrate Judge John Z. Boyle’s R&R (Doc. 8) is accepted.

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2.

Velasco’s petition (Doc. 1) is denied with prejudice.

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3.

The Clerk of the Court is directed to terminate this action.

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Dated this 11th day of March, 2016.

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