Ortega v. Ryan et al

Filing 15

ORDER: The Petition (Doc. 1 ) is denied and dismissed with prejudice. The Clerk shall enter judgment accordingly. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal. Signed by Magistrate Judge Eric J Markovich on 11/17/2016. (See Order for complete details) (DPS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Luis Enrique Ortega,
Petitioner,

10
11

ORDER

v.

12

No. CV-14-00356-TUC-EJM

Charles Ryan, et al.,

13

Respondents.

14
15

Petitioner Luis Enrique Ortega filed a pro se Petition for a Writ of Habeas Corpus

16

(“PWHC”) pursuant to 28 U.S.C. § 2254 on November 29, 2013. 1 (Doc. 1). Petitioner

17

raises four grounds for relief: (1) double jeopardy; (2) ineffective assistance of trial

18

counsel; (3) ineffective assistance of Rule 32 counsel; and (4) due process and equal

19

protection violations. Respondents filed an Answer contending that the PWHC is

20

untimely, and further that all of Petitioner’s claims are procedurally defaulted or

21

otherwise not cognizable on habeas review. The Court concludes that Petitioner’s PWHC

22

is untimely, and that Petitioner has not shown that he is entitled to equitable tolling.

23

Accordingly, the petition will be denied.

24
25
26

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. Trial, Sentencing, and Appeal
On November 5, 2007, a Pima County Superior Court jury found Petitioner guilty

27
1

28

Although the Petition was docketed by the Clerk on January 10, 2014, the Court
assumes that Petitioner deposited his PWHC in the prison mailing system on November
29, 2013, as indicated by Petitioner’s signature on his Petition. (Doc. 1 at 11).

1

of two counts of sexual abuse of a minor under 15, two counts of molestation of a child,

2

two counts of sexual conduct with a minor under 15, and two counts of threatening or

3

intimidating. (Doc. 9 Ex. C). Petitioner was sentenced to a combination of concurrent and

4

consecutive presumptive prison terms for a total of 57 years. (Doc. 9 Ex. D).

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

The Arizona Court of Appeals (“COA”) summarized the facts of the case as
follows:
On August 20, 2006, thirteen-year old C.Q. was visiting her
mother in Tucson. That morning she was sleeping on a couch,
when she was awakened by Ortega touching her arms,
buttocks, and legs and trying to turn her over. She asked
Ortega what he was doing, and although he stopped touching
her, he did not answer. A few days later, on August 25, while
C.Q. was sleeping, Ortega turned her “face up” and began
touching her breasts and vagina over her clothes. Afterwards,
Ortega told her not to tell anyone what happened. C.Q.
returned home to Mexico the following day.
C.Q. next visited her mother in December 2006. On the 22nd
or 23rd, Ortega took C.Q. to an abandoned trailer where he
forcibly removed her clothes, touched her breasts, back, and
legs, and had sexual intercourse with her. She did not tell her
mother what had happened because Ortega had told both her
and her brother F.Q. that he would either kill their mother or
hurt them if they said anything.
On subsequent visits in February and March or April of 2007,
Ortega engaged in similar acts with C.Q. and each time he
threatened to harm her mother if C.Q. told her what he had
done. On April 9, C.Q.’s mother was lying on the couch when
she saw Ortega touch C.Q.’s buttocks over her pajamas.
Shortly thereafter, she heard him walk into C.Q.’s bedroom.
She screamed at him, and the two argued about what she had
seen. When the mother called the police, Ortega put his
clothes in his car and left the house.
(Doc. 9 Ex. J).

23

Following his conviction, Petitioner sought review in the Arizona COA.

24

Appointed counsel filed an opening brief raising two issues on appeal: (1) multiplicitous

25

indictment/double jeopardy, arguing that counts three and four are lesser included

26

offenses of count five, and (2) that the state exerted improper influence over F.Q.’s

27

testimony, making his testimony unreliable. (Doc. 9 Ex. E). Petitioner later withdrew his

28

argument that count three was a lesser included offense of count five, but continued to

-2-

1

argue that counts four and five were multiplicitous. (Doc. 9 Exs. G, H). On October 14,

2

2008, the COA issued its decision vacating Petitioner’s conviction and sentence on count

3

four of the indictment, and affirming Petitioner’s conviction and sentence on the

4

remaining counts. (Doc. 9 Ex. J).

5

B. First Petition for Post-Conviction Relief

6

On May 8, 2009, Petitioner initiated proceedings in Pima County Superior Court

7

for post-conviction relief (“PCR”). (Doc. 9 Ex. M). Appointed counsel filed the Rule 32

8

Petition on September 24, 2009, raising two claims of ineffective assistance of trial

9

counsel. (Doc. 9 Ex. O). Petitioner alleged that trial counsel was ineffective for failing to

10

interview the state’s expert witness and was further ineffective for failing to conduct any

11

pretrial interviews. Id.

12

The trial court denied PCR on December 7, 2009. (Doc. 9 Ex. R). Petitioner filed a

13

petition for review with the Arizona COA, and on April 27, 2010 the COA issued its

14

decision granting review and denying relief. (Doc. 9 Ex. S). Petitioner did not file a

15

petition for review in the Arizona Supreme Court. (Doc. 9 Ex. T).

16

C. Second Petition for Post-Conviction Relief

17

On August 20, 2010, Petitioner filed a second notice of PCR in Pima County

18

Superior Court. (Doc. 9 Ex. U). Petitioner’s notice stated that he was alleging a claim

19

pursuant to Ariz. R. Crim. P. 32.1 (d), (e), (f), (g) or (h), specifically: newly discovered

20

material facts, that his failure to timely file a notice of PCR was not his fault, a significant

21

change in the law, and actual innocence. Id. In support of his claim, Petitioner stated that

22

the trial court lacked subject matter jurisdiction to impose his sentence, that facts existed

23

that established by clear and convincing evidence that he was actually innocent, and that

24

he was also raising a claim of fundamental miscarriage of justice. Id.

25

Appointed counsel filed a Rule 32 Petition on January 4, 2012. 2 (Doc. 9 Ex. V).

26

Petitioner cited Ariz. R. Crim. P. 32.1(h) and argued that claims brought in successive

27
2

28

While the petition is date-stamped January 4, 2012, it was signed by counsel on
December 30, 2011. This discrepancy is not material to the Court’s decision in this
matter.
-3-

1

PCR petitions are not precluded if the defendant demonstrates by clear and convincing

2

evidence that no reasonable juror would have found the defendant guilty beyond a

3

reasonable doubt. Id. Petitioner specifically argued that his conviction on count nine of

4

the indictment should be vacated because there was no evidence that Petitioner threatened

5

F.Q. on the date stated in the indictment. Id.

6
7
8
9
10
11
12
13
14

On September 11, 2012, the trial court issued its order summarily dismissing the
second PCR petition. (Doc. 9 Ex. X). The court noted that:
[E]ven though Petitions based on Rule 32. l (h) are exempt
from preclusion, when a claim is raised under Rule 32.1(h)
in a successive or untimely post-conviction relief
proceeding, some other requirements must be met:
the notice of post-conviction relief must set forth the
substance of the specific exception and the reasons for not
raising the claim in the previous petition or in a timely
manner. If the specific exception and meritorious reasons
do not appear substantiating the claim and indicating why
the claim was not stated in the previous petition or in a
timely manner, the notice shall be summarily dismissed.

15

Id. The Court concluded that: “Here, the defendant failed to set forth the substance of

16

the specific exception, and the reasons for failing to raise this claim in his previous

17

Petition. As such, the Petition for Post-Conviction relief is summarily dismissed.” Id.

18

Petitioner filed a petition for review with the Arizona COA on January 10, 2013.

19

(Doc. 9 Ex. Y). On July 2, 2013, the COA issued its order granting review and denying

20

relief. (Doc. 9 Ex. Z). Petitioner then filed a petition for review with the Arizona

21

Supreme Court, which denied review. (Doc. 9 Ex. AA).

22

D. Habeas Petition

23

Petitioner deposited his PWHC in the prison mailing system on November 29,

24

2013. (Doc. 1). In Ground One, Petitioner claims that he was subject to double jeopardy

25

because there were multiple counts in the duplicitous indictment that resulted in multiple

26

sentences, and that the trial court lacked jurisdiction to impose illegal sentences. In

27

Ground Two, Petitioner alleges his trial counsel was ineffective for failing to object to the

28

illegal sentences, failing to present mitigating evidence, allowing the use of Petitioner’s

-4-

1

prior felony convictions, and performing an inadequate investigation. In Ground Three,

2

Petitioner alleges his Rule 32 counsel was ineffective because counsel made little effort

3

to communicate with Petitioner and ignored correspondence from Petitioner. In Ground

4

Four, Petitioner alleges his due process and equal protection rights were violated because

5

he was placed in double jeopardy and was charged for a single offense in multiple counts.

6

Respondents contend that the PWHC is untimely and that Petitioner has not shown

7

that he is entitled to equitable tolling. (Doc. 9). Respondents further contend that Grounds

8

One and Three of the Petition are not cognizable on federal habeas review, and that

9

Grounds Two and Four of the Petition are unexhausted and procedurally defaulted and

10

that Petitioner has not shown cause and prejudice or a fundamental miscarriage of justice

11

to excuse his default. Respondents thus conclude that the PWHC is not properly before

12

this Court for review.

13
14

II.

STATUTE OF LIMITATIONS

A. Timeliness

15

As a threshold matter, the Court must consider whether Petitioner’s PWHC is

16

barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir.

17

2002). The writ of habeas corpus affords relief to persons in custody pursuant to the

18

judgment of a state court in violation of the Constitution, laws, or treaties of the United

19

States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for habeas corpus are governed by the

20

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.

21

The AEDPA mandates that a one-year statute of limitations applies to applications for a

22

writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section

23

2244(d)(1) provides that the limitations period shall run from the latest of:

24
25
26
27
28

(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
-5-

initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or

1
2

(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005).
The other subsections being inapplicable here, Petitioner must have filed his
habeas petition within one year from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such review.” 28
U.S.C. § 2244(d)(1)(A); see also McQuiggin v. Perkins, ___ U.S. ____, 133 S.Ct. 1924,
1929, 185 L.Ed.2d 1019 (2013). The Ninth Circuit has held that when an Arizona
defendant does not file a petition for review in the Arizona Supreme Court on direct
review, his “direct appeal was final. . . [on] the date that he allowed his time for seeking
review in the [Arizona] Supreme Court to expire.” Hemmerle v. Schriro, 495 F.3d 1069,
1073‒74 (9th Cir. 2007) (holding that conclusion of proceeding on direct review under §
2244(d)(1)(A) occurred on the date that petitioner’s ability to seek review in the Arizona
Supreme Court elapsed and not when the mandate issued); Gonzalez v. Thaler, __ U.S.
__, 132 S.Ct. 641, 656 (2012) (For “a state prisoner who does not seek review in a State’s
highest court, the judgment becomes ‘final’ under § 2244(d)(1)(A) when the time for
seeking such review expires.”). In addition, “the period of ‘direct review’ in 28 U.S.C. §
2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ
of certiorari from the United States Supreme Court, whether or not the petitioner actually
files such a petition.” Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir. 1999).
Here, Petitioner was sentenced on December 10, 2007 and timely filed a direct
appeal. On October 14, 2008 the Arizona COA vacated Petitioner’s conviction and
sentence on count four of the indictment and affirmed Petitioner’s conviction and
sentence on the remaining counts. 3 (Doc. 9 Ex. J). Petitioner had 30 days from that date

27
28

3

Respondents incorrectly state that Petitioner’s direct appeal concluded on
October 4, 2008. (Doc. 9 at 4). However, the court’s decision is dated October 14, 2009.
-6-

1

to seek review in the Arizona Supreme Court. See Ariz. R. Crim. P. 31.19(a). Petitioner

2

was granted an extension to seek review until January 12, 2009, but did not file a petition

3

with the Arizona Supreme Court. (Doc. 9 Ex. K). However, the State did file a petition

4

for review, which the Supreme Court denied on April 20, 2009. (Doc. 9 Ex. BB). Thus,

5

Petitioner had 90 days from that date to seek a writ of certiorari in the United States

6

Supreme Court. See Bowen, 188 F.3d at 1159. Because no petition for certiorari was filed

7

in the United States Supreme Court, Petitioner’s judgment became final on July 20, 2009 4

8

within the meaning of 28 U.S.C. § 2244(d)(1)(A). Thus, absent any tolling, the one-year

9

limitations period would have commenced on July 21, 2009 and expired on July 21,

10

2010. See Bowen, 188 F.3d at 1159 (“when a petitioner fails to seek a writ of certiorari

11

from the United States Supreme Court, the AEDPA’s one-year limitations period begins

12

to run on the date the ninety-day period defined by Supreme Court Rule 13 expires.”).

13

B. Statutory Tolling

14

The one-year limitation period under AEDPA is statutorily tolled during the time

15

in “which a properly filed application for State post-conviction or other collateral review

16

with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see

17

also Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). An application for State post-

18

conviction relief is ‘“properly filed’ when its delivery and acceptance are in compliance

19

with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8

20

(2000). Moreover, if a state court rejects a petitioner’s PCR petition as untimely, it cannot

21

be “properly filed” and the petitioner is not entitled to statutory tolling. Pace v.

22

DiGuglielmo, 544 U.S. 408, 418 (2005).

23

In Arizona, post-conviction review is pending once a notice of post-conviction

24

relief is filed, even though the petition is not filed until later. Isley v. Arizona Department

25

of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004); see also Ariz. R. Crim. P. 32.4(a)

26
27

See Doc. 9 Ex. J.
4

28

The 90-day period ended on Sunday, July 19, 2009. The next court day was
Monday, July 20, 2009. See Ariz. R. Crim. P. 1.3(a) (tolling deadlines to the next
business day if the last day of the deadline falls on a Saturday, Sunday, or legal holiday).
-7-

1

(“A proceeding is commenced by timely filing a notice of post-conviction relief with the

2

court in which the conviction occurred.”). An application for state post-conviction relief

3

remains pending until it has achieved final resolution through the state’s post-conviction

4

procedure. Carey v. Saffold, 536 U.S. 214, 220 (2002). State law determines the

5

conclusion of collateral review and thus, state law also determines the conclusion of

6

statutory tolling under the AEDPA. See Hemmerle, 495 F.3d at 1077. “[W]hen the

7

Arizona Court of Appeals grants review of the trial court’s decision on a petition for post-

8

conviction relief but denies relief, and the petitioner does not seek further review, the

9

post-conviction proceeding is pending until the date the appellate court issues its

10

mandate.” Wells v. Ryan, 2015 WL 9918159, at *9 (D. Ariz. Aug. 13, 2015), report and

11

recommendation adopted by 2016 WL 319529 (D. Ariz. Jan. 27, 2016) (collecting cases

12

and citing Ariz. R. Crim. P. 31.23 and 32.9(g)); Ramon v. Ryan, 2010 WL 3564819, *6

13

(D. Ariz. July 23, 2010) (same).

14

Here, Petitioner timely filed his first notice of PCR on May 8, 2009. This PCR

15

notice was properly filed and therefore tolled AEDPA’s one-year statute of limitations.

16

On April 27, 2010, the Arizona COA granted review but denied relief. Petitioner did not

17

petition the Arizona Supreme Court for review. Thus, Petitioner’s properly filed PCR

18

application remained pending until the Arizona COA issued the mandate concluding its

19

review of that petition on September 13, 2010. (Doc. 9 Ex. T). See Wells, 2015 WL

20

9918159 at *9; Celaya v. Stewart, 691 F.Supp.2d 1046, 1055, 1074–1075 (D. Ariz.

21

2010), aff’d 497 Fed.Appx. 744 (9th Cir. 2012); Ramon, 2010 WL 3564819, at *6.

22

Petitioner had one year from that date to file his federal habeas petition. Accordingly,

23

absent equitable tolling, the statute of limitations expired on September 13, 2011, making

24

Petitioner’s November 29, 2013 PWHC untimely.

25

Unlike the 2009 notice, Petitioner’s second notice of PCR, filed on August 20,

26

2010, was not “properly filed,” and did not statutorily toll the one-year limitations period.

27

“[A]n application is ‘properly filed’ when its delivery and acceptance are in compliance

28

with the applicable laws and rules governing filings,” including “the time limits upon its

-8-

1

delivery . . .” Artuz, 531 U.S. at 8. If a petitioner files an application after the generally

2

applicable state time limit, the application may nonetheless be considered “properly

3

filed” if it fits within any exception to that limit. Pace, 544 U.S. at 413; see also

4

Hemmerle, 495 F.3d at 1074 (“[W]here notice is filed in conformity with the pertinent

5

Arizona statutory provisions and contains a specific prayer for relief . . ., ‘it is sufficient

6

to toll the AEDPA statute of limitations.’”) (quoting Isley, 383 F.3d at 1056). “When a

7

post-conviction petition is untimely under state law, that is the end of the matter for

8

purposes of § 2244(d)(2).” Pace, 544 U.S. at 414 (internal brackets and quotation marks

9

omitted).

10

In Arizona, notices for PCR (other than in “of-right” or capital proceedings) “must

11

be filed within ninety days after the entry of judgment and sentence or within thirty days

12

after the issuance of the order and mandate in the direct appeal, whichever is the later.”

13

Ariz. R. Crim. P. 32.4(a). In the event that a notice is not timely filed, Rule 32.2(b) of the

14

Arizona Rules of Criminal Procedure sets forth conditions for filing, which if met,

15

exclude the claims contained in the untimely notice from preclusion. See Pace, 544 U.S.

16

at 413–14 (comparing conditions of filing with conditions of relief). This rule may permit

17

an untimely or successive petition if a petitioner can establish that (1) he “is being held in

18

custody after the sentence imposed has expired,” (2) “[n]ewly discovered material facts

19

probably exist and such facts probably would have changed the verdict or sentence,” (3)

20

his “failure to file a notice of post-conviction relief of-right or notice of appeal within the

21

prescribed time was without fault on the defendant’s part,” (4) “[t]here has been a

22

significant change in the law that if determined to apply to defendant’s case would

23

probably overturn the defendant’s conviction or sentence,” or (5) “[t]he defendant

24

demonstrates by clear and convincing evidence that the facts underlying the claim would

25

be sufficient to establish that no reasonable fact-finder would have found defendant guilty

26

of the underlying offense beyond a reasonable doubt.” Ariz. R. Crim. P. 32.1(d–h).

27

“[T]he notice of post-conviction relief must set forth the substance of the specific

28

exception and the reasons for not raising the claim in the previous petition or in a timely

-9-

1

manner.” Ariz. R. Crim. P. 32.2(b).

2

In the instant case, Petitioner’s second notice for PCR was untimely filed.

3

Petitioner filed his second notice more than two years and eight months after sentencing,

4

well beyond the 90–day limitation period. Likewise, the notice was filed more than one

5

year and three months after the direct appeal mandate, well beyond the 30–day limitation

6

period. Furthermore, the record does not suggest that Petitioner complied with Rule

7

32.2(b) when he submitted his untimely notice. Petitioner merely stated that he was

8

raising subject matter jurisdiction and a claim of fundamental miscarriage of justice, and

9

although he asserted that “facts exist which establish by clear and convincing evidence

10

that the defendant is actually innocent,” Petitioner failed to cite any specific facts or

11

evidence to support his untimely filing. (Doc. 9 Ex. U). Nor did Petitioner explain why he

12

was not at fault for failing to timely file a notice of PCR, what newly discovered facts, if

13

any, would have changed the verdict, or what significant change in law had occurred that

14

would have overturned his conviction or sentence. Therefore, under state law, the second

15

notice for post-conviction relief was untimely and was not “properly filed” for purposes

16

of 28 U.S.C. § 2244(d)(2), and the time period during which Petitioner pursued his

17

untimely petition through the state courts it not subject to statutory tolling. See Pace, 544

18

U.S. at 414. 5

19

This conclusion is further supported by the trial court’s ruling summarily

20

dismissing the second PCR petition. (Doc. 9 Ex. X). The court concluded that Petitioner

21
5

22
23
24
25
26
27
28

The Ninth Circuit “employ[s] a two-part test to determine whether the period
between the denial of one petition and the filing of a second petition should be tolled.
First, we ask whether the petitioner’s subsequent petitions are limited to an elaboration of
the facts relating to the claims in the first petition. If the petitions are not related, then the
subsequent petition constitutes a new round of collateral attack, and the time between
them is not tolled. If the successive petition was attempting to correct deficiencies of a
prior petition, however, then the prisoner is still making proper use of state court
procedures, and habeas review is still pending. Second, if the successive petition was not
timely filed, the period between the petitions is not tolled.” Banjo v. Ayers, 614 F.3d 964,
968–69 (9th Cir. 2010) (internal quotations and citations omitted) (noting that because
the court concluded the petition was untimely under the second prong of King, the court
“need not determine whether the petition was a continuation of the first or the start of a
second round.”).

- 10 -

1

“failed to set forth the substance of the specific exception [under Rule 32. l (h)], and the

2

reasons for failing to raise this claim in his previous Petition. As such, the Petition for

3

Post-Conviction relief is summarily dismissed.” Id. In so doing, the court necessarily

4

found that the notice was untimely because Petitioner’s claims did not satisfy any

5

exception to the time limit for filing. See Ariz. R. Crim. P. 32.2(b) (“If the specific

6

exception and meritorious reasons do not appear substantiating the claim and indicating

7

why the claim was not stated in the previous petition or in a timely manner, the notice

8

shall be summarily dismissed.”). Accordingly, because the second notice was filed after

9

the time limit, and did not fit within any exceptions to that limit, it was not “properly

10

filed” and does not toll the limitations period under § 2244(d)(2). See Pace, 544 U.S. at

11

414, 417 (“it must be the case that a petition that cannot even be initiated or considered

12

due to the failure to include a timely claim is not ‘properly filed.’”); Trigueros v. Adams,

13

658 F.3d 983, 988 (9th Cir. 2011) (“An untimely state petition is not ‘properly filed’ and

14

does not trigger statutory tolling under AEDPA.”); see also Biggs v. Duncan, 339 F.3d

15

1045, 1048 (9th Cir. 2003) (the time between different rounds of collateral review is not

16

tolled because no application is “pending” during that period).

17

C. Equitable Tolling

18

In certain limited circumstances, AEDPA’s one-year filing deadline may be

19

equitably tolled. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). A petitioner is entitled

20

to equitable tolling if he can demonstrate that “‘(1) that he has been pursuing his rights

21

diligently and (2) that some extraordinary circumstances stood in his way’” to prevent

22

him from timely filing a petition. Holland v. Florida, 130 S.Ct. at 2562 (quoting Pace,

23

544 U.S. at 418); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (generally,

24

equitable tolling may be applied only when “extraordinary circumstances beyond a

25

prisoner’s control make it impossible to file a petition on time.”). Further, a petitioner

26

must establish a “causal connection” between the extraordinary circumstance and his

27

failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056,

28

1060 (9th Cir. 2007). “‘[T]he threshold necessary to trigger equitable tolling [under

- 11 -

1

AEDPA] is very high, lest the exceptions swallow the rule.’” Spitsyn v. Moore, 345 F.3d

2

796, 799 (9th Cir. 2003) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.

3

2002)).

4

Here, Petitioner has failed to meet his burden. The record before this Court is

5

devoid of any evidence to demonstrate that Petitioner is entitled to equitable tolling.

6

While Petitioner asserts that AEDPA’s statute of limitations is tolled while a petitioner is

7

pursuing Rule 32 relief and claims that he timely filed all notices of PCR, as the Court

8

explained above, Petitioner’s second notice of PCR was not timely filed and did not toll

9

the statute of limitations. Further, Petitioner does not demonstrate any extraordinary

10

circumstances that prevented him from timely filing his federal habeas petition. Petitioner

11

alleges that ineffective assistance of trial counsel and Rule 32 counsel created an

12

extraordinary set of circumstances that resulted in a failure to properly identify, assemble,

13

and submit claims on direct appeal and PCR, and contends that this excuses any delay in

14

filing the PWHC and absolves Petitioner of any fault for the untimely filing. (Doc. 13).

15

However, while Petitioner alleges he is entitled to equitable tolling because he cannot be

16

held responsible for counsel’s failure to protect his constitutional rights, this does not

17

explain why Petitioner failed to timely file his PWHC. And, in any event, Petitioner’s pro

18

se status, indigence, limited legal resources, ignorance of the law, or lack of

19

representation during the applicable filing period do not constitute extraordinary

20

circumstances justifying equitable tolling. See, e.g., Rasberry v. Garcia, 448 F.3d 1150,

21

1154 (9th Cir. 2006); see also Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009) (“A

22

petitioner’s misunderstanding of accurate information cannot merit relief, as equitable

23

tolling requires a petitioner to show that some extraordinary circumstance[ ] beyond [his]

24

control caused his late petition, and this standard has never been satisfied by a

25

petitioner’s confusion or ignorance of the law alone.”) (internal quotations and citation

26

omitted) (citing Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (“To

27

apply the doctrine in extraordinary circumstances necessarily suggests the doctrine’s

28

rarity, and the requirement that extraordinary circumstances stood in his way suggests

- 12 -

1

that an external force must cause the untimeliness, rather than . . . merely oversight,

2

miscalculation or negligence on the petitioner’s part . . . .”) (internal quotation marks and

3

brackets omitted)).

4

Accordingly, the Court finds that Petitioner is not entitled to equitable tolling and

5

the PWHC is untimely.

6

III.

CONCLUSION

7

In sum, the statute of limitations began to run on September 13, 2010 and ran

8

uninterrupted until September 13, 2011. Petitioner did not file his federal habeas petition

9

until November 29, 2013, approximately two years and two months after the limitations

10

period expired. Therefore, based on the above analysis, the Court finds that Petitioner’s

11

PWHC is barred by the statute of limitations. Accordingly,

12
13

IT IS HEREBY ORDERED that the Petition (Doc. 1) is denied and dismissed
with prejudice. The Clerk shall enter judgment accordingly.

14

IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to

15

proceed in forma pauperis on appeal because the dismissal of the Petition is justified by a

16

plain procedural bar and jurists of reason would not find the procedural ruling debatable.

17

Dated this 17th day of November, 2016.

18
19
20
21
22
23
24
25
26
27
28

- 13 -