Gonzales v. Ryan et al

Filing 33

ORDER adopting in whole the Report and Recommendation by Judge Willett 31 . IT IS FURTHER ORDERED dismissing as untimely the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 1 . The Clerk of Court shall terminate this matter. IT IS FURTHER ORDERED denying a certificate of appealability and leave to appeal in forma pauperis upon a finding that dismissal of the Petition here is justified by a plain procedural bar. Signed by Judge John J Tuchi on 2/26/2019. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Gonzales,
Petitioner,

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ORDER

v.

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No. CV-17-08087-PCT-JJT (ESW)

Charles Ryan, et al.,

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Respondents.

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At issue is the Report and Recommendation (“R&R”) (Doc. 31) entered in this

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matter by United States Magistrate Judge Eileen S. Willett, recommending that the Court

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dismiss the Petition writ of Habeas Corpus (Doc. 1) as untimely. Petitioner filed an

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Objection (Doc. 32) to the R&R 22 days after its entry, which, allowing for service and

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applying the mailbox rule, the Court will deem as timely and consider on its merits. The

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Court concludes that Judge Willett’s conclusions and her resulting recommendation are

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correct under the law.

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Defendant was sentenced in the underlying matter on August 12, 2015, after

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pleading guilty to two charges. Pursuant to Arizona Rule of Criminal Procedure 32.4, he

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had 90 days from that date—or until November 10, 2015—to file a notice seeking Post-

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Conviction Relief in the state court. He filed no such notice and thus his convictions

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became final on that day, commencing the limitations period under AEDPA the

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following day, November 11, 2015. That limitations period expired one year later, on

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November 10, 2016. Petitioner did not file his 2254 Petition until May 8, 2017—almost

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six months too late. Statutory tolling is unavailable because he never filed for post-

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conviction relief in the state court.

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The Court also finds equitable tolling does not apply because Petitioner has not

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met his burden to show any extraordinary circumstances beyond his control that made it

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impossible for him to timely file. While Petitioner argues in his Objection that his

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attorney never told him he could file a petition for post-conviction relief in the state court,

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that does not satisfy the requirement for equitable tolling. Petitioner’s pro se status after

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sentencing and his lack of legal knowledge do not satisfy the requirement that he was

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prevented form timely filing by some extraordinary force. See, e.g., Rasberry v. Garcia,

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448 F.3d 1150, 1154 (9th Cir. 2006). Petitioner thus does not qualify for equitable tolling,

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and for the reasons Judge Willet set forth in the R&R, neither does Petitioner make an

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actual innocence claim under Schlup v. Delo, 513 U.S. 298 (1995). Accordingly,

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IT IS ORDERED adopting in whole the Report and Recommendation by Judge
Willett (Doc. 31).

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IT IS FURTHER ORDERED dismissing as untimely the Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. §2254 (Doc. 1). The Clerk of Court shall terminate

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this matter.

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IT IS FURTHER ORDERED denying a certificate of appealability and leave to

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appeal in forma pauperis upon a finding that dismissal of the Petition here is justified by

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a plain procedural bar.

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Dated this 26th day of February, 2019.

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Honorable John J. Tuchi
United States District Judge

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