Salazar v. Ryan et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS ORDERED that the Report and Recommendation (Doc. 28 ) is accepted and adopted; the objections (Doc. 31 ) are overruled. The Petition is denied with prejudice, and the Clerk of the Court shall ente r judgment accordingly. IT IS FURTHER ORDERED that Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability, because dismissal of the Petition is based on a plain procedural bar, and jurists of reason would not find this Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Further, Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). (See document for complete details). Signed by Senior Judge James A Teilborg on 5/29/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Anthony Salazar,
Petitioner,

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ORDER

v.

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No. CV-17-1132-PHX-JAT (JFM)

Charles L. Ryan, et al.,

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Respondents.

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Pending before this Court is Petitioner’s Petition for Writ of Habeas Corpus

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(“Petition”). The Magistrate Judge issued a Report and Recommendation (“R&R”)

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recommending that the Petition be denied and dismissed because it is barred by the Anti-

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Terrorism and Effective Death Penalty Act’s (“AEDPA”) statute of limitations, (Doc. 28

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at 16), and, alternatively, is either procedurally defaulted or procedurally barred, (Id. at

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29). The R&R further recommended that a Certificate of Appealability be denied. (Id. at

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31). Petitioner filed objections to these recommendations. (Doc. 31).

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I.

REVIEW OF AN R&R

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that

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the district judge must review the magistrate judge’s findings and recommendations de

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novo if objection is made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not

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required to conduct “any review at all . . . of any issue that is not the subject of an

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1)

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(“the court shall make a de novo determination of those portions of the [report and

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recommendation] to which objection is made”). In this case, Petitioner filed Objections to

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the Report and Recommendation, (Doc. 31), and the Court will review those objections

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de novo.

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II.

FACTUAL AND PROCEDURAL BACKGROUND

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The R&R summarized the factual and procedural history of this case and neither

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party objected to this history. (Doc. 28 at 1–6). Therefore, the Court adopts that portion

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of the R&R.

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III.

STATUTE OF LIMITATIONS

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The R&R recommends that the Petition be denied as barred by the AEDPA’s

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statute of limitations. (Id. at 6-16). As explained by the Magistrate Judge, the AEDPA, 28

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U.S.C. § 2244(d), provides a one year statute of limitations for state prisoners to file a

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petition for writ of habeas corpus in federal court. (Id. at 6). That period generally

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commences on “the date on which the judgment became final by the conclusion of direct

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review or the expiration of the time for seeking such review.” (Id. at 7 (quoting 28 U.S.C.

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§ 2244(d)(1)(A))). Examining Petitioner’s procedural history in state court, the

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Magistrate Judge concluded that Petitioner’s conviction became final on July 24, 2015,

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when Petitioner’s time to file a Petition for Post-Conviction Review expired. (Id. at 8).

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The Magistrate Judge explained that Section 2244(d)(1)(D) does provide an

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alternative commencement date of “the date on which the factual predicate of the claim

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or claims presented could have been discovered through the exercise of due diligence.”

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(Id. at 9 (quoting 28 U.S.C. § 2244(d)(1)(D))). The Magistrate Judge noted that it is only

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the delayed discovery of the facts themselves, not their legal significance, that can trigger

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Section 2244(d)(1)(D). (Id. (citing Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir.

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2001))). Examining Petitioner’s factual and procedural background, the Magistrate Judge

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concluded that Petitioner has offered nothing to suggest that he has only recently

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discovered the relevant facts of his claims, only an understanding of their legal

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significance. (Id.). Therefore, the Magistrate Judge concluded that Petitioner’s claims are

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not sufficient to trigger a later commencement date under Section 2244(d)(1)(D). (Id.).

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The Magistrate Judge determined that July 24, 2015 is when the one-year statute

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of limitations began to run, thus expiring on July 24, 2016, absent any statutory or

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equitable tolling. (Id. at 9-10).

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A.

Statutory Tolling

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Regarding statutory tolling, the Magistrate Judge explained that “[t]he AEDPA

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provides for tolling of the limitations period when a ‘properly filed application for State

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post-conviction or other collateral review with respect to the pertinent judgment or claim

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is pending.’” (Id. at 10 (quoting 28 U.S.C. § 2244(d)(2))). An untimely application is

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never “properly filed” within the meaning of Section 2244(d)(2). (Id. (citing Pace v.

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DiGuglielmo, 544 U.S. 408 (2005))). Petitioner’s second PCR notice was not filed until

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November 21, 2016, nearly four months after the ADEPA’s statute of limitations had run.

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(Id. at 12). Therefore, the Magistrate Judge concluded that “Petitioner is not entitled to

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any statutory tolling.” (Id.).

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B.

Equitable Tolling

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Turning to equitable tolling, the Magistrate Judge explained that “[e]quitable

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tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit,

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but only when ‘extraordinary circumstances beyond a prisoner’s control make it

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impossible to file a petition on time’ and ‘the extraordinary circumstances were the cause

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of his untimeliness.’” (Id. (quoting Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.

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2003))). To receive equitable tolling, a petitioner “must establish two elements: (1) that

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he has been pursuing his rights diligently, and (2) that some extraordinary circumstances

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stood in his way.” (Id. at 12-13 (citing Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.

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2009))). The Magistrate Judge stated that Petitioner’s claim that he lacked access to legal

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resources may be an extraordinary circumstance warranting equitable tolling. (Id. at 14

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(citing Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000))). However, the

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Magistrate Judge went on to explain that in cases where courts have found that an

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extraordinary circumstance might exist, the petitioner always pointed to specific

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materials to which he did not have access. (Id. (citing Roy v. Lampert, 465 F.3d 964, 974

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(9th Cir. 2006))). Here, Petitioner points to no specific materials to which he lacked

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access, and provides no rationale for why he was able to file numerous state petitions, but

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not his federal petition. (Id.). The Magistrate Judge determined that Petitioner fails to

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show that his inability to file a timely federal habeas petition was the result of a lack of

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access to legal resources, and thus, Petitioner is not entitled to any equitable tolling. (Id.

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at 15).
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Actual Innocence

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Finally, regarding a claim of actual innocence, the Magistrate Judge noted that

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“the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude ‘a court

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from entertaining an untimely first federal habeas petition raising a convincing claim of

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actual innocence.’” (Id. (citing McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013))). To

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qualify for such an exception, a petitioner “‘must show that it is more likely than not that

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no reasonable juror would have convicted him in light of the new evidence.’” (Id.

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(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995))). The Magistrate Judge found that

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Petitioner made no such claim of actual innocence and is therefore not entitled to any

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such exception to the statute of limitations based on an actual innocence theory. (Id.).

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Based on Petitioner’s failure to file his habeas action within the statute of

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limitations and the finding that Petitioner failed to state a sufficient basis for statutory

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tolling, equitable tolling, or actual innocence, the Magistrate Judge determined that the

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Petition must be dismissed with prejudice as untimely. (Id. at 16).

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IV.

PETITIONER’S OBJECTIONS

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Petitioner objects to the Magistrate Judge’s application of the AEDPA’s statute of

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limitations, the Magistrate Judge’s determination that Petitioner’s one year statute of

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limitations expired on July 24, 2016, and the Magistrate Judge’s conclusion that the

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AEDPA one-year statute of limitations expired because Petitioner failed to establish that

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statutory and equitable tolling should apply. (Doc. 31 at 4-7).

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A.

Application of the AEDPA

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Petitioner argues that he should not be subject to the AEDPA’s statute of

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limitations because it was originally written for individuals who commit crimes of

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terrorism. (Id. at 4). However, the Magistrate Judge provided that “nothing in the

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AEDPA restricts the habeas statute of limitations to crimes of terrorism, or any other

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particular crimes.” (Doc. 28 at 7). The AEDPA’s one year time limit applies broadly to

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“an application for a writ of habeas corpus by a person in custody pursuant to the

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judgement of a State court.” 28 U.S.C. § 2244(d)(1). Moreover, “the title of a statute and

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heading of a section cannot limit the plain meaning of the text.” Bhd. Of R. R. Trainmen

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v. Baltimore O. R. Co., 331 U.S. 519, 528-29 (1947). Accordingly, Petitioner has failed to

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show that the AEDPA’s statute of limitations should not apply to his Petition.

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B.

Commencement Date

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Petitioner argues that the AEDPA’s one year statute of limitations should not have

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expired on July 24, 2016 because he has only recently become aware of his available

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claims when his access to legal resources was improved upon transferring prisons. (Doc.

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31 at 5). However, the Magistrate Judge found that, “Petitioner has proffered nothing to

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suggest that he has only recently discovered the relevant facts of his claims, only an

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understanding of their legal significance.” (Doc. 28 at 9). Petitioner’s objections do not

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point to any recently discovered facts that are relevant to his claims. Accordingly,

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Petitioner failed to show that he is entitled to a later expiration date for the AEDPA’s one

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year statute of limitations under Section 2244(d)(1)(D).

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C.

Statutory Tolling

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Petitioner argues that he is entitled statutory tolling of the AEDPA statute of

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limitations through his improperly filed PCR Notices. (Doc. 31 at 6). In support of this

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contention, Petitioner asserts that he improperly filed repeated PCR Notices rather than

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the appropriate Petition due to his lack of legal knowledge and resources. (Id.). Because

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of his lack of legal knowledge and resources, Petitioner contends that his improper filing

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of PCR Notices in place of his Petition should entitle him to statutory tolling for the

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AEDPA’s statute of limitations. (Id.).

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However, the Magistrate Judge noted that Petitioner’s second PCR Notice was not

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filed until November 21, 2016, almost four months after the expiration of the AEDPA’s

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one year statute of limitations. (Doc. 28 at 12). Even if the second PCR Notice was

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deemed to entitle Petitioner to statutory tolling, the one year statutory period would still

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have expired as, “[o]nce the statute has run, a subsequent post-conviction or collateral

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relief filing does not reset the running of the one year statute.” (Id. (citing Jiminez v. Rice,

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276 F.3d 478, 482 (9th Cir. 2001))). Petitioner reiterates that his ability to file a timely

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PCR Notice was limited by a lack of legal resources, but does not dispute the filing date

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offered by the Magistrate Judge. Accordingly, Petitioner failed to show that he is entitled

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to statutory tolling of the AEDPA’s one year statute of limitations.

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D.

Equitable Tolling

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Petitioner also argues that he is entitled to equitable tolling of the AEDPA statute

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of limitations and objects to the Magistrate Judge’s finding to the contrary in the R&R.

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(Doc. 31 at 6-7). In support of this objection, Petitioner argues that he faced the kind of

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extraordinary circumstances that trigger equitable tolling by lacking legal resources and

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relocating to new prisons. (Id. at 7).

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As stated above, in order for Petitioner to qualify for equitable tolling, he must

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establish two elements: “(1) that he has been pursuing his rights diligently, and (2) that

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some extraordinary circumstances stood in his way.” Ramirez, 571 F.3d at 997. As a

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general rule, “equitable tolling is available where the prisoner can show extraordinary

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circumstances were the cause of an untimely filing.” Bills v. Clark, 628 F.3d 1092, 1097

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(9th Cir. 2010). Petitioner argues that he has satisfied this standard through his lack of

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legal resources due to his pro se status and lack of access to appropriate legal materials as

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a result of his imprisonment and multiple relocations. (Doc 31 at 7). However, the Ninth

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Circuit has held that “pro se status on its own, is not enough to warrant equitable tolling.”

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Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). Of course, the Magistrate Judge noted

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that a lack of access to legal resources may be an extraordinary circumstance warranting

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equitable tolling. (Doc. 28 at 14 (citing Whalem/Hunt, 233 F.3d at 1148)). Nevertheless,

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the Magistrate Judge went on to note that petitioners have always pointed to specific

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materials to which they did not have access to show that extraordinary circumstances

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might exist. (Id. (citing Roy, 465 F.3d at 974; Mendoza v. Carey, 449 F.3d 1065 (9th Cir.

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2006))). Here, Petitioner mentions only one specific resource that he is lacking, “[t]he

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Georgetown Law Journal,” and fails to address his need for this specific resource outside

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of its general helpfulness. (Doc. 33 at 3). Further, Petitioner was ultimately able to file his

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Petition even though “[t]he Georgetown Law Journal” was not made available to him.

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(Id.). Accordingly, Petitioner failed to show that he is entitled to equitable tolling of the

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AEDPA’s one year statute of limitations.

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V.

ALTERNATIVE RECOMMENDATION OF THE R&R

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The R&R alternatively recommends that even if the Petition was timely, the

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Petition should be denied because Petitioner’s state remedies on his claims are either

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procedurally defaulted or were procedurally barred, and thus are barred from federal

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habeas review. Petitioner objects to these findings by the Magistrate Judge.

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Because the Court has concluded that the Petition is untimely, the Court will not

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reach the alternative recommendations in the R&R regarding Petitioner’s state remedies

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on his claims being procedurally defaulted or procedurally barred. Accordingly, all of the

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objections are overruled without prejudice to re-asserting any such objection at a later

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time if appropriate.

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VI.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that the Report and Recommendation (Doc. 28) is accepted and

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adopted; the objections (Doc. 31) are overruled. The Petition is denied with prejudice,

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and the Clerk of the Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that Pursuant to Rule 11 of the Rules Governing

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Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a

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certificate of appealability, because dismissal of the Petition is based on a plain

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procedural bar, and jurists of reason would not find this Court’s procedural ruling

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debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Further, Petitioner has not

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made a substantial showing of the denial of a constitutional right. See 28 U.S.C.

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§ 2253(c)(2).

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Dated this 29th day of May, 2018.

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