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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Lorenzo Ramirez-Quintero, Petitioner, 11 12 ORDER v. 13 No. CV-16-04085-PHX-DGC (JZB) Charles L. Ryan; and the Attorney General of the State of Arizona, 14 Respondents. 15 16 17 18 In 2002, a state court jury found Petitioner guilty on multiple counts of sexual 19 activity with minors under the age of 14. He presently is confined in Arizona state prison 20 serving a 174-year sentence. On November 28, 2016, he filed a pro se petition for writ of 21 habeas corpus alleging four grounds for relief: prosecutorial misconduct, ineffective 22 assistance of counsel, racial profiling, and due process and equal protection violations. 23 Doc. 1. 24 Magistrate Judge John Z. Boyle has issued a Report and Recommendation (R&R) 25 that the petition be denied as untimely. Doc. 16. Petitioner has filed an objection to the 26 R&R, to which the State has responded. Docs. 17, 18. For reasons stated below, the 27 Court will overrule the objection and accept Judge Boyle’s recommendation. 28 1 I. Statute of Limitations. 2 Petitions for habeas corpus are governed by the Antiterrorism and Effective Death 3 Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq. The AEDPA establishes a one- 4 year statute of limitations for habeas petitions filed by state prisoners. § 2244(d)(1). The 5 limitation period generally begins to run when the state conviction becomes final by the 6 expiration or conclusion of direct review. § 2244(d)(1)(A). Statutory tolling of the 7 limitation period is available for the time during which a properly filed application for 8 post-conviction relief is pending. § 2244(d)(2). 9 petitioner “must show that (1) some ‘extraordinary circumstance’ prevented him from 10 filing on time, and (2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d 11 640, 646 (9th Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). In 12 addition, an equitable exception to the limitation period applies if the petitioner makes “a 13 credible showing of actual innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 14 (2013). 15 II. For equitable tolling to apply, the The R&R and Petitioner’s Objection. 16 Judge Boyle found that the AEDPA’s one-year limitation period began to run 17 on June 15, 2005, after conclusion of Petitioner’s post-conviction relief proceedings. 18 Doc. 16 at 6. Judge Boyle further found that Petitioner’s habeas petition is time barred 19 because it was filed more than ten years late, Petitioner is not entitled to equitable tolling 20 because he has shown no extraordinary circumstances, and he has presented no evidence 21 of actual innocence. Id. at 6-10. 22 Petitioner has no objection to the R&R’s background section or Judge Boyle’s 23 finding that the limitations period began to run on June 15, 2005. Doc. 17 at 1-2. 24 Petitioner objects only to Judge Boyle’s finding that equitable tolling is not warranted. 25 Id. at 2. 26 discussion the portions of the R&R to which Petitioner does not object. See Fed. R. Civ. 27 P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 28 Cir. 2003). The Court will review this objection de novo, and adopt without further -2- 1 III. Discussion. 2 Judge Boyle rejected Petitioner’s assertion that he is entitled to equitable tolling 3 due to his limited ability to speak and understand English and the lack of access to legal 4 materials in Spanish. Doc. 16 at 7-9. Judge Boyle found that Petitioner failed to 5 demonstrate diligence on his part and that his difficulties with the English language do 6 not explain why the present petition was filed ten years late. Id. at 8. Petitioner objects 7 to these findings for the reasons stated in his reply brief. 8 Respondents correctly note (Doc. 18 at 2), those arguments were fully addressed and 9 rejected by Judge Boyle (Doc. 16 at 8-9). Doc. 17 at 2. But as 10 In his reply brief, Petitioner cited Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 11 2006), for the proposition that language difficulties may warrant equitable tolling. 12 Doc. 15 at 2. 13 petitioner’s language limitations can justify equitable tolling.” Mendoza, 449 F.3d at 14 1069. Instead, “a non-English-speaking petitioner seeking equitable tolling must, at a 15 minimum, demonstrate that during the running of the AEDPA time limitation, he was 16 unable, despite diligent efforts, to procure either legal materials in his own language or 17 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 18 Judge Boyle considered Mendoza and similar cases cited by Petitioner in his reply 19 brief, and found that he failed to show that he diligently sought to acquire legal materials 20 or assistance to file the instant petition. Doc. 16 at 8-9 & n.4. Of particular note is the 21 fact that Petitioner was able to file numerous motions in state court during 2014 and 22 2015, but did not file his habeas petition until late 2016. Id. at 9. Petitioner fails to 23 explain why Judge Boyle’s analysis is not well founded. 24 This Circuit has made clear that “equitable tolling is ‘unavailable in most cases,’ 25 and is appropriate only ‘if extraordinary circumstances beyond a prisoner’s control make 26 it impossible to file a petition on time.’” Miranda v. Castro, 292 F.3d 1063, 1066 (9th 27 Cir. 2002) (citations omitted; emphasis in original). Indeed, “the threshold necessary to 28 trigger equitable tolling under the AEDPA is very high, lest the exceptions swallow the -3- 1 rule.” Id. The Court agrees with Judge Boyle that Petitioner has failed to meet this very 2 high threshold and therefore is not entitled to equitable tolling. Doc. 16 at 9. 3 IT IS ORDERED: 4 1. Magistrate Judge John Z. Boyle’s R&R (Doc.16) is accepted. 5 2. The petition for writ of habeas corpus (Doc. 1) is denied with prejudice. 6 3. A certificate of appealability is denied. 7 4. The Clerk is directed to terminate this action. 8 Dated this 28th day of September, 2017. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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