Alcoser #120473 v. Ramos

Filing 26

ORDERED that the 12 Amended Petition for Writ of Habeas Corpus (State/2254) filed by Joseph Anthony Alcoser is dismissed as time-barred. It is further ordered denying the petitioner a certificate of appealability. The Clerk is directed to prepare a judgment and close the case. Signed by Magistrate Judge Leslie A Bowman on 4/29/2014. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joseph Anthony Alcoser,
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Petitioner,
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vs.
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Charles L. Ryan; et al.,
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Respondents.
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No. CIV 13-010-TUC-LAB
ORDER

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Pending before the court is an amended petition for writ of habeas corpus filed on May
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30, 2013, by Joseph Anthony Alcoser, an inmate confined in the Arizona State Prison Complex
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in Florence, Arizona. (Doc. 12) Alcoser claims (1) “They didn’t follow the due process of
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witnesses also sentencing procedures even the criminal procedures like double jeopardy falling
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again on the same witnesses,” (2) “The sentence was handed down to[o] harsh of times . . .,
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and (3) “The counsel was not discovering evidence, witnesses, colorable claims.” (Doc. 12)
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Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c).
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(Doc. 17) The petition will be denied. It is time-barred.
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Summary of the Case
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Alcoser was convicted after a jury trial of first degree murder. (Doc. 18-1, p. 12) On
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April 17, 1996, the trial court gave Alcoser a sentence of imprisonment for his natural life.
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(Doc. 13-1, p. 16)
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On direct appeal, Alcoser argued (1) his sentence was improper, (2) the evidence was

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insufficient to find felony murder, (3) the trial court should have given a lesser included

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instruction, (4) the trial court should have permitted impeachment of witness Montano, (5)

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the trial court erred by “death qualifying” the jury, and (6) the prosecutor’s closing argument

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was error. (Doc. 18-1, p. 23) Nevertheless, the Arizona Court of Appeals affirmed Alcoser’s

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conviction and sentence on May 29, 1997. (Doc. 18-2, p. 38) The Arizona Supreme Court

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denied Alcoser’s petition for review on December 16, 1997. (Doc. 18, p. 3) Alcoser did not

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file a petition for review with the U.S. Supreme Court. (Doc. 18, p. 4)

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On February 6, 1998, Alcoser filed notice of post-conviction relief. (Doc. 18, p. 3) He

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argued (A) trial counsel was ineffective for failing to present mitigating evidence at sentencing

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and (B) an intervening change in the law affected the burden of proof. (Doc. 18, p. 3) The trial

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court denied the petition on December 9, 1998. (Doc. 18-3, pp. 17, 21) The Arizona Court of

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Appeals granted review but denied relief on July 27, 1999. (Doc. 18-3, p. 55) Alcoser did not

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file a petition for review with the Arizona Supreme Court. (Doc. 18, p. 3)

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On May 30, 2013, Alcoser filed the pending amended petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. (Doc. 12) Alcoser claims (1) “They didn’t follow the due

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process of witnesses also sentencing procedures even the criminal procedures like double

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jeopardy falling again on the same witnesses,” (2) “The sentence was handed down to[o] harsh

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of times . . ., and (3) “[T]he counsel was not discovering evidence, witnesses, colorable

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claims.” (Doc. 12)

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On July 23, 2013, the respondents filed an answer arguing among other things that the

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petition is time-barred. (Doc. 18) Alcoser did not file a reply but did file two notices captioned

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“[New finding of probate cause] Rule 5.5” (Docs. 19, 21) He also filed what appears to be a

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notice of appeal with the Ninth Circuit, which apparently was forwarded to the district court.

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(Doc. 23) The respondents are correct. The petition is time-barred.

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Discussion

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The writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition,

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however, must be filed within the applicable statute of limitations or it will be dismissed. The

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statute of limitations reads in pertinent part as follows:

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A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of--

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(A)

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(1)

the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;

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* * *
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(2)
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The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.

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28 U.S.C. §§ 2244(d)(1) & (d)(2). The “one-year statute of limitations . . . applies to each claim

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in a habeas application on an individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1170 (9th

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Cir. 2012).

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The limitation period for each of Alcoser’s claims was triggered on “the date on which

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the judgment became final by the conclusion of direct review or the expiration of the time for

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seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Alcoser was sentenced on April 17, 1996.

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(Doc. 13-1, p. 16) His direct appeal was denied on May 29, 1997. (Doc. 18-2, p. 38) The

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Arizona Supreme Court denied his petition for review on December 16, 1997. (Doc. 18, p. 3)

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Alcoser then had 90 days to petition the U.S. Supreme Court for review. Sup. Ct. R. 13. When

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he did not do so, his judgment became final on March 16, 1998. See Bowen v. Roe, 188 F.3d

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1157, 1159 (9th Cir. 1999).

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The one-year limitation period did not begin to run immediately because Alcoser’s post-

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conviction relief petition was pending at this time. See 28 U.S.C. § 2244(d)(2). Tolling

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pursuant to § 2244(d)(2) continued until the Arizona Court of Appeals denied relief on July 27,

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1999. (Doc. 18-3, p. 55) The limitation period began to run the next day and expired July 27,

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2000. Approximately 13 years later, Alcoser filed his petition in this court. It is time-barred.
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Alcoser did not explain in his petition why the one-year statute of limitations does not

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bar his petition. (Doc. 11, p. 19) He did not file a reply arguing the limitation period should

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be equitably tolled.

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Certificate of Appealability

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Rule 11(a) of the Rules Governing Section 2254 Cases, requires that in habeas cases

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“[t]he district court must issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant.”

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Here, the court declines to issue a certificate of appealability because the petitioner has

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not “made a substantial showing of the denial of a constitutional right,” as required under 28

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U.S.C. § 2253(c)(2). Reasonable jurists would not find the court’s conclusions and ruling

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debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly,

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IT IS ORDERED that the amended petition for writ of habeas corpus filed on May 30,
2013, by Joseph Anthony Alcoser, is DISMISSED as time-barred.

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IT IS FURTHER ORDERED denying the petitioner a certificate of appealability.

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The Clerk is directed to prepare a judgment and close the case.

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DATED this 29th day of April, 2014.

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