Nouan v. Ryan et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION - Magistrate Judge Willett's 10 Report and Recommendation is accepted. Petitioner Nouan's 1 Petition for the Writ of Habeas Corpus is DENIED AND DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a Certificate of Appealability for the issue of equitable tolling is GRANTED. IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action and enter judgment accordingly. See document for complete details. Signed by Chief Judge G Murray Snow on 3/8/19. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas Nouan,

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No. CV 17-02743-PHX-GMS (ESW)
Petitioner,

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v.

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Charles L. Ryan, et al.,

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ORDER

Respondents.

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Pending before the Court is Magistrate Judge Eileen S. Willett’s Report and

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Recommendation (“R&R”) on the merits of Petitioner Thomas Nouan’s Petition for a Writ

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of Habeas Corpus. (Doc. 10).
BACKGROUND

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Because no party has objected to the procedural background as set forth in the R&R,

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the Court adopts the background as an accurate account. (Doc. 10 at 1–2). Magistrate

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Judge Willett recommends that Nouan’s Petition be denied. (Doc. 10 at 7). Nouan objected

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to the conclusions of the R&R, arguing that Judge Willett incorrectly determined that

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equitable tolling did not apply. (Doc. 11 at 3). But because the R&R correctly analyzed

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Nouan’s claims, his petition for habeas corpus will be denied.
DISCUSSION

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I.

Legal Standard

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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). “[T]he district

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judge must review the magistrate judge’s findings and recommendations de novo if

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objection is made, but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct

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“any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn,

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474 U.S. 140, 149 (1985).

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II.

Analysis

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Petitioner Nouan only objects to the R&R’s conclusion that equitable tolling does

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not apply to his petition. (Doc. 11 at 3). As a result, the Court will accept the other

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conclusions in the R&R and limit its analysis to whether equitable tolling applies

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A.

Equitable Tolling

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “imposes

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a one-year statute of limitation on habeas corpus petitions filed by state prisoners in federal

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court.” Jenkins v. Johnson, 330 F.3d 1146, 1149 (9th Cir. 2003) (internal citations omitted).

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Equitable tolling of AEDPA’s limitation period is not available in most cases. See

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Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997),

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overruled in part on other grounds, 163 F.3d 530 (9th Cir. 1998). To justify equitable

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tolling, a petitioner must show that “extraordinary circumstances beyond his control made

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

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of his untimeliness.” United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004); see

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Calderon, 128 F.3d at 1289; Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). The

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Court must “take seriously Congress’s desire to accelerate the federal habeas process” and

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may equitably toll the AEDPA’s limitation period only “when this high hurdle is

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surmounted.” Calderon, 128 F.3d at 1289.

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Nouan’s petition was not filed within the one-year statute of limitation. Because

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Nouan did not file his petition on time, he must demonstrate that equitable tolling applies

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for the Court to review his claims. After the Arizona Supreme Court denied review on

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December 13, 2016, Nouan only had six days to seek review with this Court. (Doc. 10 at

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4). Nouan did not file for relief here until July 25, 2017, several months after the deadline

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had passed. Magistrate Judge Willett properly found that Nouan was not entitled to
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equitable tolling due to his status as a pro se litigant, a lack of prison resources, or because

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of his ignorance of the law. (Doc. 10 at 5–6).

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In his objections to the R&R, Petitioner Nouan argues that his petition should

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nonetheless be accepted as timely for two reasons. First, Nouan notes that, due to the very

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limited time in which he had to file an habeas petition after the Supreme Court ruled on his

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state petition for post-conviction relief, he did not receive notice from the attorneys

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representing him in his state post-conviction relief proceedings that the Arizona Supreme

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Court had declined review until after his deadline for filing in federal court had passed.

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(Doc. 11 at 3). Nouan also notes that he simply believed that the one-year statute of

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limitations began running from his petition was denied by the Arizona Supreme Court—

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not from when the United States Supreme Court issued its decision in Miller. Neither of

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these reasons constitutes extraordinary circumstances.

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Liberally construed, Nouan’s objection here amounts to an ineffective assistance of

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counsel claim. Nouan is arguing that because his state post-conviction relief counsel failed

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to notify him that his time for filing a federal habeas corpus petition was about to expire

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until after the deadline had passed, the Court should find that extraordinary circumstances

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exist and equitably toll the statute of limitations. The Supreme Court’s recent decision in

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Martinez v. Ryan, which held that ineffective assistance of post-conviction relief counsel

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can excuse a procedural default in some instances, does not apply to the issue of equitable

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tolling. See Davila v. Davis, 137 S. Ct. 2058, 2062–63 (2017) (noting that Martinez applies

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“in a single context—where the State effectively requires a defendant to bring [an

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ineffective-assistance-of-trial counsel] claim in state postconviction proceedings rather

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than on direct appeal”); see also Lambrix v. Sec’y, Florida Dept. of Corr., 756 F.3d 1246,

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1249 (11th Cir. 2014) (“[T]he equitable rule in Martinez applies only to the issue of cause

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to excuse the procedural default of an ineffective assistance of trial counsel claim that

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occurred in a state collateral proceeding and has no application to the operation or tolling

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of the § 2244(d) state of limitations for filing a § 2254 petition”); Madueno v. Ryan, No.

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CV-13-01382-PHX-SRB, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014) (“Martinez
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has no application to the statute of limitations in the AEDPA which governs Petitioner's

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filing in federal court.”). Further, the Ninth Circuit has found that ineffective assistance of

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state counsel in calculating filing deadlines for federal habeas petitions is not ordinarily

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sufficient to constitute extraordinary circumstances to overcome AEDEPA’s time limit.

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See Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2003) (holding that a letter from

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counsel that gave a miscalculated date for filing a federal habeas corpus petition did not

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constitute extraordinary circumstances for purposes of equitable tolling). In Miranda, the

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Ninth Circuit explained that because the habeas petitioner did not have any right to

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assistance from his state counsel regarding post-conviction relief, “it follows that he did

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not have the right to that attorney’s effective assistance, either.” Id. Thus, Nouan is barred

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by Ninth Circuit precedent from claiming that his post-conviction relief counsel’s lack of

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advice on filing a timely petition for habeas corpus constituted extraordinary

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circumstances.

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Additionally, Nouan’s mistaken belief that the one-year clock started when his post-

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conviction relief petition was denied by the Arizona Supreme Court is not sufficient to

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establish extraordinary circumstances. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th

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Cir. 2006) (“[A] pro se petitioner’s lack of legal sophistication is not, by itself, an

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extraordinary circumstance warranting equitable tolling.”).

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demonstrated he is entitled to equitable tolling, the Court must deny his petition.

Because Nouan has not

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B.

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Reasonable jurists could disagree with this Court’s conclusion that extraordinary

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circumstances that could justify equitable tolling do not exist in this case. Thus, the Court

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will issue a Certificate of Appealability on issue of equitable tolling. See Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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Certificate of Appealability

IT IS THEREFORE ORDERED that Magistrate Judge Willett’s Report and
Recommendation (Doc. 10) is accepted.
IT IS FURTHER ORDERED that Petitioner Nouan’s Petition for the Writ of
Habeas Corpus (Doc. 1) is DENIED AND DISMISSED WITH PREJUDICE.
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IT IS FURTHER ORDERED that a Certificate of Appealability for the issue of
equitable tolling is GRANTED.
IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action
and enter judgment accordingly.
Dated this 8th day of March, 2019.

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