Ramirez-Quintero #167695 v. Ryan et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION accepting 16 Report and Recommendation. The petition for writ of habeas corpus (Doc. 1 ) is denied with prejudice. A certificate of appealability is denied. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 9/28/17. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lorenzo Ramirez-Quintero,
Petitioner,

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ORDER

v.

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No. CV-16-04085-PHX-DGC (JZB)

Charles L. Ryan; and the Attorney General
of the State of Arizona,

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Respondents.

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In 2002, a state court jury found Petitioner guilty on multiple counts of sexual

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activity with minors under the age of 14. He presently is confined in Arizona state prison

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serving a 174-year sentence. On November 28, 2016, he filed a pro se petition for writ of

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habeas corpus alleging four grounds for relief: prosecutorial misconduct, ineffective

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assistance of counsel, racial profiling, and due process and equal protection violations.

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Doc. 1.

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Magistrate Judge John Z. Boyle has issued a Report and Recommendation (R&R)

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that the petition be denied as untimely. Doc. 16. Petitioner has filed an objection to the

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R&R, to which the State has responded. Docs. 17, 18. For reasons stated below, the

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Court will overrule the objection and accept Judge Boyle’s recommendation.

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I.

Statute of Limitations.

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Petitions for habeas corpus are governed by the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq. The AEDPA establishes a one-

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year statute of limitations for habeas petitions filed by state prisoners. § 2244(d)(1). The

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limitation period generally begins to run when the state conviction becomes final by the

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expiration or conclusion of direct review. § 2244(d)(1)(A). Statutory tolling of the

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limitation period is available for the time during which a properly filed application for

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post-conviction relief is pending. § 2244(d)(2).

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petitioner “must show that (1) some ‘extraordinary circumstance’ prevented him from

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filing on time, and (2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d

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640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). In

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addition, an equitable exception to the limitation period applies if the petitioner makes “a

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credible showing of actual innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931

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(2013).

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II.

For equitable tolling to apply, the

The R&R and Petitioner’s Objection.

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Judge Boyle found that the AEDPA’s one-year limitation period began to run

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on June 15, 2005, after conclusion of Petitioner’s post-conviction relief proceedings.

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Doc. 16 at 6. Judge Boyle further found that Petitioner’s habeas petition is time barred

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because it was filed more than ten years late, Petitioner is not entitled to equitable tolling

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because he has shown no extraordinary circumstances, and he has presented no evidence

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of actual innocence. Id. at 6-10.

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Petitioner has no objection to the R&R’s background section or Judge Boyle’s

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finding that the limitations period began to run on June 15, 2005. Doc. 17 at 1-2.

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Petitioner objects only to Judge Boyle’s finding that equitable tolling is not warranted.

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Id. at 2.

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discussion the portions of the R&R to which Petitioner does not object. See Fed. R. Civ.

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P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003).

The Court will review this objection de novo, and adopt without further

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III.

Discussion.

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Judge Boyle rejected Petitioner’s assertion that he is entitled to equitable tolling

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due to his limited ability to speak and understand English and the lack of access to legal

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materials in Spanish. Doc. 16 at 7-9. Judge Boyle found that Petitioner failed to

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demonstrate diligence on his part and that his difficulties with the English language do

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not explain why the present petition was filed ten years late. Id. at 8. Petitioner objects

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to these findings for the reasons stated in his reply brief.

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Respondents correctly note (Doc. 18 at 2), those arguments were fully addressed and

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rejected by Judge Boyle (Doc. 16 at 8-9).

Doc. 17 at 2.

But as

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In his reply brief, Petitioner cited Mendoza v. Carey, 449 F.3d 1065 (9th Cir.

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2006), for the proposition that language difficulties may warrant equitable tolling.

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Doc. 15 at 2.

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petitioner’s language limitations can justify equitable tolling.” Mendoza, 449 F.3d at

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1069. Instead, “a non-English-speaking petitioner seeking equitable tolling must, at a

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minimum, demonstrate that during the running of the AEDPA time limitation, he was

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unable, despite diligent efforts, to procure either legal materials in his own language or

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translation assistance from an inmate, library personnel, or other source.” Id. at 1070.

As the R&R makes clear, however, there is no “per se rule that a

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Judge Boyle considered Mendoza and similar cases cited by Petitioner in his reply

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brief, and found that he failed to show that he diligently sought to acquire legal materials

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or assistance to file the instant petition. Doc. 16 at 8-9 & n.4. Of particular note is the

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fact that Petitioner was able to file numerous motions in state court during 2014 and

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2015, but did not file his habeas petition until late 2016. Id. at 9. Petitioner fails to

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explain why Judge Boyle’s analysis is not well founded.

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This Circuit has made clear that “equitable tolling is ‘unavailable in most cases,’

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and is appropriate only ‘if extraordinary circumstances beyond a prisoner’s control make

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it impossible to file a petition on time.’” Miranda v. Castro, 292 F.3d 1063, 1066 (9th

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Cir. 2002) (citations omitted; emphasis in original). Indeed, “the threshold necessary to

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trigger equitable tolling under the AEDPA is very high, lest the exceptions swallow the

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rule.” Id. The Court agrees with Judge Boyle that Petitioner has failed to meet this very

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high threshold and therefore is not entitled to equitable tolling. Doc. 16 at 9.

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IT IS ORDERED:

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Magistrate Judge John Z. Boyle’s R&R (Doc.16) is accepted.

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The petition for writ of habeas corpus (Doc. 1) is denied with prejudice.

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3.

A certificate of appealability is denied.

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4.

The Clerk is directed to terminate this action.

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Dated this 28th day of September, 2017.

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