Hernandez-Barraza v. Ryan et al

Filing 15

ORDER - Magistrate Judge Eileen S. Willett's 12 R&R is accepted. The 1 petition for writ of habeas corpus 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 4/19/18. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Israel Hernandez-Barraza,
Petitioner,

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

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ORDER

v.

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No. CV-17-00158-PHX-DGC (ESW)

Respondents.

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In August 2007, Petitioner was indicted on multiple counts of sexual conduct with

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a minor and kidnapping. Doc. 9-1 at 3-5. The charges arose from allegations that

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Petitioner forced his seven-year-old neighbor into his apartment and sexually assaulted

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her. Id. at 59. In July 2008, Petitioner pled guilty in state court to one count of sexual

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conduct with a minor and two counts of attempted child molestation. Id. at 30-58.

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He presently is confined in state prison serving a 27-year sentence. Id. at 64-75.

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He filed a petition for writ of habeas corpus on January 17, 2017, asserting three

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grounds for relief: a sixth amendment claim for ineffective assistance of counsel, a

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fourteenth amendment claim for trial court malfeasance, and a fifth amendment claim for

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an improper sentence. Doc. 1 at 6-8. The first two claims allege that the sentence was

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based on an amended plea agreement that the trial judge did not have a copy of at the

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time of sentencing. Id. at 6-7. The third claim alleges that Petitioner was not advised of

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his right to have a jury determine aggravating facts. Id. at 8.

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Magistrate Judge Eileen S. Willett has issued a Report and Recommendation

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(R&R) that the petition be denied as untimely because it was filed more than six years

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late. Doc. 12. Petitioner has filed an objection to the R&R, to which the State has

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responded. Docs. 13, 14. The Court will overrule the objection and accept Judge

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Willett’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 is available

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for the time during which a properly filed application for post-conviction relief is

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pending. § 2244(d)(2). For equitable tolling to apply, the petitioner “must show that

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(1) some ‘extraordinary circumstance’ prevented him from filing on time, and (2) he has

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diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015)

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(citing Holland v. Florida, 560 U.S. 631, 649 (2010)).

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II.

The R&R and Petitioner’s Objection.

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The AEDPA’s one-year limitation period began to run on December 12, 2009,

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after the conclusion of Petitioner’s initial post-conviction relief (“PCR”) proceeding.

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Doc. 12 at 4. Judge Willett found no statutory tolling of the limitation period. Id. at 5-6.

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Judge Willett further found that Petitioner is not entitled to equitable tolling because he

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has identified no extraordinary circumstance that prevented him from timely filing a

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petition. Id. at 6-8. Judge Willett concluded that Petitioner’s habeas petition is time-

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barred under the AEDPA because it was filed long after the limitation period expired on

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December 11, 2010. Id. at 4-5, 8.

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Petitioner does not specifically object to Judge Willett’s findings that the

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limitation period began to run on December 9, 2009, and expired one year later before

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Petitioner sought federal habeas relief.

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Respondents’ arguments that he has not diligently pursued his claims for relief. Doc. 13

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at 2. Petitioner contends that he has been diligently fighting his case for the past ten

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years, and he was not able to seek appellate review of his first PCR petition due to a

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language barrier and his unfamiliarity with the law. Id. at 2-3. The Court will consider

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this argument de novo, and adopt without further discussion the portions of the R&R to

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which Petitioner does not specifically object. See Fed. R. Civ. P. 72(b); 28 U.S.C.

Rather, Petitioner generally challenges

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§ 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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III.

Discussion.

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The standard for equitable tolling of the limitation period “is a very high bar, and

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is reserved for rare cases.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir.

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2014). Judge Willett found, correctly, that Petitioner’s ignorance of the law and status as

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a pro se inmate do not warrant equitable tolling. Doc. 12 at 7 (citing Chaffer v. Prosper,

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592 F.3d 1046, 1049 (9th Cir. 2010); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir.

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2006)).

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A petitioner’s difficulty with the English language can justify equitable tolling, but

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only where the language barrier actually prevents timely filing. Mendoza v. Carey, 449

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F.3d 1065, 1070 (9th Cir. 2006). A non-English-speaking petitioner seeking equitable

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tolling “must, at a minimum, demonstrate that during the running of the AEDPA time

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limitation, he was unable, despite diligent efforts, to procure either legal materials in his

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own language or translation assistance from an inmate, library personnel, or other

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source.” Id. Petitioner has made no such showing. Indeed, Petitioner does not even

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allege that he is unable to read and speak English. The Court agrees with Judge Willett’s

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findings that Petitioner has not shown a basis for equitable tolling of the AEDPA’s one-

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year limitation period.

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Petitioner does not assert an exception to the time bar based on a miscarriage of

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justice or actual innocence.

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wrongdoing but attributes it to his being “a young male adult whose feelings of attraction

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to the young female overstepped the boundaries.” Id. at 2. The victim Petitioner preyed

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upon and sexually assaulted was a seven-year old child.

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Petitioner to the stipulated maximum sentence of 27 years because of the age of the

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victim and the emotional trauma she experienced from sexual assault. Doc. 9 1 at 70-71.

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Even if the petition in this case were timely filed, Petitioner’s request for a sentence

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reduction as a first-time offender is without merit. Doc. 13 at 2-4

Doc. 13 at 4.

To the contrary, Petitioner admits his

The trial court sentenced

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IT IS ORDERED:

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1.

Magistrate Judge Eileen S. Willett’s R&R (Doc. 12) 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 19th day of April, 2018.

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