Samaniego-Lugo v. Ryan et al

Filing 24

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATIONS (Doc. 17 ). It is Ordered Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) is denied without leave to amend, and this action is dismissed with prejudice, and the Clerk should enter judgment and close this case. It is further Ordered striking Document 23 from the record. Signed by Judge Raner C Collins on 4/25/2013. (MFR)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Felipe Gabriel Samaniego-Lugo, Petitioner, 10 11 ORDER v. 12 No. CV-11-00623-TUC-RCC Charles L. Ryan, et al., Respondents. 13 14 15 Pending before the Court is the November 16, 2012 Report and Recommendation 16 (R & R) from Magistrate Judge Bernardo P. Velasco (Doc. 17), recommending that this 17 Court dismiss the action in its entirety as untimely. Petitioner timely filed objections to 18 the R & R (Doc. 21), and Respondents filed their response (Doc. 22). 19 As a preliminary matter, the Court notes that Petitioner also filed a Reply (Doc. 20 23) to Respondents’ response to Petitioner’s objections; however, replies are not 21 permitted unless leave is granted by the Court. Fed. R. Civ. P. 72(b)(2). Accordingly, the 22 Court will strike Petitioner’s Reply (Doc. 23) and will not consider any arguments stated 23 in the reply. In addition, the Court also notes Petitioner’s objections exceed the 10 page 24 limit allowed by the Local Rules. LRCiv 7.2(e)(3). For the following reasons, this Court will adopt the R & R. 25 26 I. BACKGROUND 27 The factual and procedural background in this case is thoroughly detailed in 28 Magistrate Judge Velasco’s R & R (Doc. 17). This Court fully incorporates by reference 1 the Background section of the R & R into this order. 2 II. LEGAL STANDARD 3 The duties of the district court in connection with a R & R are set forth in Rule 72 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may 5 “accept, reject, or modify the recommended disposition; receive further evidence; or 6 return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3); 28 7 U.S.C. § 636(b)(1). 8 The Court will not disturb a magistrate judge’s order unless his factual findings 9 are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 10 636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference by the 11 district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). Where the 12 parties object to an R & R, “[a] judge of the [district] court shall make a de novo 13 determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. § 14 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). 15 III. 16 DISCUSSION Magistrate Judge Velasco issued a R & R recommending that this Court enter an 17 order denying Petitioner’s Petition for Writ of Habeas Corpus without leave to amend. 18 Citing 28 U.S.C. § 2241, Judge Velasco found that the petition was untimely filed and 19 that Petitioner was not entitled to equitable tolling. (Doc. 17 at 5-6). Judge Velasco 20 considered Petitioner’s claim that he was entitled to equitable tolling due to alleged 21 mental illness, and thoroughly reviewed the medical evidence. However, Judge Velasco 22 found that “Petitioner has failed to show that his mental illness rendered him unable to 23 personally understand the need to timely file or that his mental state rendered him unable 24 to personally prepare the petition and effectuate its filing. Neither has Petitioner 25 demonstrated that he was adequately diligent in his efforts to file a petition given his 26 mental impairments and the assistance available to him.” (Doc. 17 at 15). 27 In his objections to the R & R, Petitioner argues three reasons that his § 2254 28 petition should not be dismissed: actual innocence of the charge of armed robbery, mental -2- 1 illness warranting equitable tolling, and the need for an evidentiary hearing to determine 2 the issue of feigning incompetency symptoms. 3 Petitioner did not allege actual innocence in his § 2254 petition; rather, he argued 4 there was insufficient evidence to support his conviction. (Doc. 1-1 pg. 2). Petitioner did 5 ask the Court for guidance as to whether his claim should be pursued for actual innocence 6 or insufficient evidence, (Doc. 1-1 pg. 37), but it is not the Court’s role to provide 7 guidance as to which legal theories should be pursued. Furthermore, because Petitioner 8 did not assert actual innocence in his petition, the argument was not properly raised 9 before the magistrate judge. This Court has discretion to refuse to consider arguments 10 raised for the first time by a petitioner in objections to the R & R. Akhtar v. Mesa, 698 11 F.3d 1202, 1208 (9th Cir. 2012). Accordingly, the Court will not consider Petitioner’s 12 actual innocence argument. 13 A one year statute of limitations applies to writs of habeas corpus filed by persons 14 in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The statute of 15 limitations may be tolled during the pendency of a state court action for post-conviction 16 relief, 28 U.S.C. § 2244(d)(2), and may also be equitably tolled when “extraordinary 17 circumstances beyond a prisoner’s control make it impossible to file a petition on time.” 18 Calderon v. U.S. Dist. Ct., 128 F.3d 1283, 1288 (9th Cir. 1997). 19 Here, Petitioner filed a petition for review with the court of appeals in May 2009, 20 tolling the statute of limitations. The appellate court denied the petition and issued its 21 mandate on March 22, 2010, and Petitioner did not appeal. Thus, Petitioner had one year 22 from March 22, 2010 to file his § 2254 petition. However, Petitioner did not file his 23 petition until September 22, 2011, making the petition untimely by six months. 24 While the statute of limitations may be equitably tolled for extraordinary 25 circumstances, Petitioner bears the burden to establish circumstances warranting tolling. 26 Petitioner must establish “(1) that he has been pursuing his rights diligently, and (2) that 27 some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 28 418 (2005). In some cases, mental illness can constitute an extraordinary circumstance -3- 1 beyond a petitioner’s control that warrants equitable tolling. Laws v. Lamarque, 351 F.3d 2 919, 923 (9th Cir. 2003). The Court must consider how the mental illness impaired a 3 petitioner’s ability to timely file the petition, and whether the mental illness caused the 4 untimely filing. Bills v. Clark, 628 F.3d 1099, 1099-1100 (9th Cir. 2010). 5 Petitioner argues his petition should not be dismissed as untimely because he is 6 entitled to equitable tolling based on his mental illness. Petitioner contends that the R & 7 R improperly relies on a medical opinion by Dr. Pietz, which recommended Petitioner 8 was not incompetent and was exaggerating his mental illness. Petitioner further argues 9 that because Dr. Hinton found him legally incompetent, Petitioner was therefore 10 incapable of preparing his § 2254 petition prior to June 22, 2011 (Doc. 21 at 14). 11 Petitioner was evaluated by Dr. Hinton in September 2010. Dr. Hinton opined that 12 Petitioner suffered from a mental disease or defect which rendered him incompetent such 13 that he was unable to understand the nature and consequences of the proceeding against 14 him. After Petitioner was ordered to a medical facility for competency restoration, the 15 facility issued a certificate of competency on June 29, 2011. A report by Dr. Pietz was 16 attached to the certificate, and contained numerous statements suggesting Petitioner was 17 intentionally trying to misrepresent himself as impaired, and that he was exaggerating his 18 symptoms. (CR 00-1236, Doc. 210—Sealed). 19 Here, Petitioner fails to provide specific information in his petition explaining how 20 his mental illness affected his ability to timely file the petition. In his objections, 21 Petitioner suggests that Dr. Hinton’s initial finding of incompetency should be enough to 22 establish that Petitioner is entitled to equitable tolling up to the date the certificate of 23 competency was issued, and that the incompetency finding alone is enough to show 24 “Petitioner was in no position to prepare a § 2254 petition.” (Doc. 21 at 14-15). However, 25 equitable tolling does not apply in all cases where the petitioner is suffering from a 26 mental illness, nor does it apply in all cases where a petitioner has been found 27 incompetent. 28 Furthermore, a finding of incompetency does not excuse Petitioner from his -4- 1 burden of showing how the mental illness prevented him from timely filing the petition. 2 In his objections, Petitioner states he frequently repeats himself and goes over the same 3 points when discussing his various court cases. The Court finds this insufficient to 4 constitute an extraordinary circumstance preventing Petitioner from timely filing the 5 petition. Given all of the available evidence, and considering the arguments presented in 6 Petitioner’s objections to the R & R, the Court finds Petitioner has not met his burden in 7 showing his impairment was severe enough to constitute an extraordinary circumstance 8 warranting equitable tolling. 9 Petitioner also claims he is entitled to an evidentiary hearing to determine his 10 competency. (Doc. 21 at 10). Petitioner contends that the psychological reports submitted 11 by Drs. Hinton and Pietz are contradictory, and that he is entitled to a hearing to resolve 12 the conflicting reports and cross-examine the doctors. However, the issue presently 13 before the Court is not whether Petitioner was competent or not during his unrelated 14 criminal case, or whether there was conflicting medical evidence regarding Petitioner’s 15 competency. Rather, the question is whether Petitioner is entitled to equitable tolling 16 based on mental illness, which the Court finds he is not. 17 Accordingly, 18 IT IS HEREBY ORDERED that Magistrate Judge Velasco’s Report and 19 Recommendation (Doc. 17) is hereby ACCEPTED and ADOPTED as the findings of 20 fact and conclusions of law by this Court. 21 IT IS FURTHER ORDERED Petitioner’s Petition for Writ of Habeas Corpus 22 (Doc. 1) is denied without leave to amend, and this action is dismissed with prejudice, 23 and the Clerk should enter judgment and close this case. 24 25 IT IS FURTHER ORDERED striking Document 23 from the record. Dated this 25th day of April, 2013. 26 27 28 -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?