Maytorena v. Ryan et al

Filing 50

ORDER that the reference to Magistrate Judge Bernardo P. Velasco is withdrawn. It is further Ordered that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is dismissed as untimely. The Clerk of Court is directed t o enter judgment accordingly and close this case. It is further Ordered that the Court declines to issue a certificate of appealability, because reasonable jurists would not find the Court's ruling debatable. Signed by Judge Rosemary Marquez on 2/6/2018. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cesar F Maytorena,
Petitioner,

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ORDER

v.

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No. CV-15-00296-TUC-RM (BPV)

Charles L Ryan, et al.,

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Respondents.

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On July 9, 2015, Petitioner Cesar F. Maytorena filed a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (“§ 2254 Petition”). (Doc. 1.) On August 10, 2015,

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the Court ordered Respondents to answer the Petition. (Doc. 12.)1 On November 23,

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2015, Respondents filed an Answer limited to affirmative defenses. (Doc. 22.) Petitioner

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filed a Reply on April 22, 2016. (Doc. 28; see also Doc. 29.) On September 10, 2016,

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Petitioner filed a memorandum titled Supplemental Case Law.

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Respondents filed a Response to the Supplemental Case Law (Doc. 37), Petitioner filed a

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Reply (Doc. 40), and Respondents filed a Surreply (Doc. 49).

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I.

(Docs. 30, 31.)

Factual & Procedural Background

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A.

Trial and Appeal

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Petitioner was found guilty after a jury trial of second-degree murder, eight counts

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In the August 10, 2015 Order, the Court referred this matter to Magistrate
Judge Bernardo P. Velasco for further proceedings and a report and recommendation.
(Doc. 12 at 3.) The Court now withdraws the magistrate-judge reference.

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of aggravated assault, and six counts of endangerment. (Doc. 1-2 at 26.)2 The trial court

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sentenced him to aggravated, concurrent and consecutive prison terms totaling 145 years.

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(Id.) Petitioner was represented by attorney Eric Larsen during his trial and sentencing.

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The Arizona Court of Appeals summarized the facts established at trial as follows:3

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The charges stemmed from two shooting incidents involving [Petitioner]
and his friends and the victim, A., and his friends. The first incident began
with a fist fight between the two groups in Rodeo Park in December 1998.
As the fight ended and the parties began to disperse, [Petitioner] fired a
shotgun at a car belonging to a member of the other group, leaving a large
hole in the driver’s-side door.

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The second incident occurred a few days later on New Year’s Eve.
[Petitioner] celebrated the new year at a friend’s house by drinking alcohol
with his group of friends and firing shots into the air at midnight. At the
same time, A. and his friends were celebrating by drinking alcohol and
firing shots into the air at a New Year’s Eve party in the back yard of a
friend’s house.
At some point during the evening, [Petitioner] and his friends drove to a
local convenience store where they saw A. and his friends in two cars.
After exchanging accusations about a prior shooting incident between them,
the two groups drove away. With first one car leading and then another, the
two groups fired multiple gunshots at each other before separating and
returning to their respective parties. At around 3:45 a.m., [Petitioner] and a
friend drove to the New Year’s Eve party A. was attending. Shots were
fired into the crowd, killing A and wounding seven others.
(Id. at 26-27.)
On appeal, Petitioner—represented by attorney R. Lamar Couser—presented the
following issues:

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1. The trial court erred in holding an in camera, ex parte hearing with the prosecutor.

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2. The trial court deprived Petitioner of his right to a speedy trial by granting a

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continuance due to the assigned prosecutor’s unavailability, which is a legally

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inadequate excuse in light of the size of the County Attorney’s staff.

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3. The State committed prosecutorial misconduct by improperly molding the

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All record citations refer to the page numbers generated by the Court’s
electronic filing system.
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The Arizona Court of Appeals’ factual findings are presumed to be correct,
and Petitioner bears the burden of rebutting that presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981).
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testimony of witnesses Omar Johansen and Ernesto Santa Maria through threats of

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prosecution for perjury.

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4. The trial court deprived Petitioner of a fair and impartial judge and a fair trial by

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badgering witnesses Omar Johansen and Ernesto Santa Maria, accusing them of

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perjury and threatening them with contempt and/or prosecution.

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5. The trial court erred in denying a mistrial after the State elicited testimony that

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witness DeAngelo Rivera had met Petitioner at the Department of Corrections.

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6. The trial court erred in denying Petitioner’s motion for judgment of acquittal as to

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counts 2, 3, and 4.

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(See Doc. 22-1 at 3-106.)

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On April 30, 2003, the Arizona Court of Appeals affirmed Petitioner’s convictions

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and sentences. (Doc. 1-2 at 25-41.) The appellate court found that the trial court’s ex

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parte conference with the prosecutor did not comply with Arizona’s Code of Judicial

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Conduct but that it did not require reversal of Petitioner’s convictions because Petitioner

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had not established that the error was prejudicial. (Id. at 27-30.) The appellate court

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similarly rejected Petitioner’s speedy trial claim for failure to establish prejudice. (Id. at

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30-31.) The appellate court found that the prosecutor’s conduct in relation to witnesses

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Johansen and Santa Maria was consistent with her ethical duties. (Id. at 38.) Although

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the appellate court criticized the trial court’s lengthy admonitions of those witnesses, it

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found that the admonitions “were neither coercive nor personally threatening” and

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therefore did not require reversal. (Id. at 31-37.) The appellate court found no abuse of

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discretion in the trial court’s denial of Petitioner’s motion for mistrial (id. at 38-39) and

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no error in the trial court’s denial of Petitioner’s motion for judgment of acquittal (id. at

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40-41).

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The Arizona Supreme Court summarily denied review on December 5, 2003.

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(Doc. 1-2 at 43.) Petitioner did not file a petition for writ of certiorari in the United

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States Supreme Court. The Arizona Court of Appeals issued its mandate on March 2,

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2004. (Doc. 1-2 at 45.)

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B.

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On May 11, 2001, Petitioner—represented by attorney R. Lamar Couser—filed a

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petition for post-conviction relief (“PCR Petition”) under Rule 32 of the Arizona Rules of

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Criminal Procedure. (Doc. 22-2 at 14-34.) In the PCR Petition, Petitioner argued that he

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was entitled to PCR relief by virtue of an in camera, ex parte hearing conducted by the

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trial judge with the prosecutor. (Id.) The Pima County Superior Court summarily denied

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post-conviction relief on November 19, 2001. (Doc. 1-2 at 49.) Petitioner did not file a

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petition for review of that decision in the Arizona Court of Appeals. (Doc. 1 at 10, 24.)

State Post-Conviction Proceedings

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On April 14, 2011, Petitioner—represented by attorney Thomas Higgins—filed a

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memorandum in support of Rule 32 PCR Petition. (Doc. 1-4 at 4-37.) Because there was

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no PCR Petition pending, the trial court ordered Petitioner’s counsel to clarify the

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situation. (Doc. 22-2 at 66-67.)4 On July 15, 2011, Petitioner filed a PCR Notice and

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PCR Petition. (Doc. 1-4 at 39-46; Doc. 22-2 at 67, 71-77.) On August 11, 2011, the

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Pima County Superior Court found that the PCR Petition was untimely under Rule

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32.4(a) of the Arizona Rules of Criminal Procedure and gave Petitioner 60 days to file a

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new petition containing arguments addressing timeliness.

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Petitioner filed a supplemental memorandum in support of his claims (Doc. 1-4 at 48-69)

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and later filed a new PCR Petition and supporting memorandum through current counsel,

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Stanley Bloom (Doc. 1-5 at 4-62; Doc. 1-6 at 1-21).

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ineffective assistance of trial counsel at the plea bargaining stage (Doc. 1-5 at 17-20);

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ineffective assistance of trial counsel for failing to object to Petitioner’s statements to

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police and failing to move for redaction of the statements (id. at 21-33); ineffective

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assistance of trial counsel for failing to prevent testimony that DeAngelo Rivera met

(Doc. 22-2 at 66-68.)

Petitioner raised claims of

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In support of his § 2254 Petition, Petitioner submits receipts indicating that
Higgins was paid $5,000.00 for “file review” in January 2009 and an additional $10,000
in May 2009. (Doc. 1-3 at 52, 54.) Petitioner also submits the first page of a document
purporting to be a memorandum in support of a Rule 32 PCR Petition. (Id. at 56.) The
document indicates it was submitted on September 4, 2009, but it is unsigned, reflects the
wrong case number, and does not bear a stamp indicating it was filed. (Id.) The record
also contains a copy of a letter sent by Petitioner to the Pima County Superior Court on
December 12, 2010, inquiring as to whether the court received a Rule 32 PCR Petition.
(Id. at 58.)
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Petitioner in prison and for mishandling a related motion for mistrial (id. at 34-37);

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ineffective assistance of trial counsel for failing to object to improper prosecutorial

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closing argument (id. at 38-42); ineffective assistance of trial counsel for failing to object

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to erroneous jury instructions (id. at 42-46); ineffective assistance of trial counsel at

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sentencing (id. at 46-59); and an assortment of additional, miscellaneous ineffective

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assistance of counsel claims (id. at 59-62; Doc. 1-6 at 1-21).

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The Pima County Superior Court dismissed Petitioner’s PCR Petition as untimely

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and successive. (Doc. 1-7 at 4-11.) The court later denied reconsideration of its decision.

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(Doc. 1-7 at 12-16.)

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The Arizona Court of Appeals granted review but denied relief in a memorandum

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decision filed on May 16, 2014. (Doc. 1-7 at 18-22.) The appellate court recognized

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that, pursuant to State of Arizona v. Bennett, 146 P.3d 63 (Ariz. 2006), ineffective

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assistance of appellate counsel claims can be raised in a successive Rule 32 proceeding if

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the defendant was represented by the same counsel both on appeal and in his first Rule 32

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proceeding. (Doc. 1-7 at 20.) However, the court held that Bennett did not apply to

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Petitioner’s second PCR Petition because the Petition was patently untimely. (Id.) The

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appellate court found that the untimeliness of the Petition precluded review of

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Petitioner’s ineffective assistance of counsel claims, and it rejected Petitioner’s claims

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under Rule 32.1(f) and 32.1(h). (Id. at 20-22.)

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The Arizona Supreme Court summarily denied review on January 6, 2015,
although Vice Chief Justice Pelander voted to grant review. (Doc. 1-7 at 24.)

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C.

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Petitioner filed the currently pending habeas Petition pursuant to 28 U.S.C. § 2254

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Petitioner’s Federal Habeas Petition

on July 9, 2015. (Doc. 1.) The Petition raises the following claims:
1. The Arizona courts erroneously denied Petitioner the right to challenge the
ineffectiveness of his post-conviction relief counsel.

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2. Ineffective assistance of trial counsel at the plea bargaining stage.

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3. Ineffective assistance of trial counsel for failing to object to the admissibility of

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statements made by Petitioner to the police and for failing to move for redaction of

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those statements.

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4. Ineffective assistance of trial counsel for failing to file pretrial motions regarding

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Petitioner’s incarceration history and for mishandling a motion for mistrial.

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5. Ineffective assistance of trial counsel for failing to object to the prosecutor’s

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improper closing argument.

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6. Ineffective assistance of trial counsel for failing to object to erroneous jury

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instructions.

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7. Ineffective assistance of trial counsel at sentencing.

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(Id. at 23-148.) Each of the above claims contains numerous, more specific sub-claims of

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ineffective assistance of counsel, as well as other asserted errors. In addition, at the end

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of his § 2254 Petition, Petitioner raises an assortment of “additional Rule 32 ineffective

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assistance of counsel arguments.” (Id. at 148-179.)

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II.

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Discussion
Respondents argue that Petitioner’s § 2254 Petition is untimely and that all of the

claims raised therein are procedurally defaulted.

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Because Petitioner’s federal habeas Petition was filed after April 24, 1996, the

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effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

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this case is governed by AEDPA. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th

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Cir. 2001).

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A.

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A one-year period of limitation applies to petitions for writ of habeas corpus filed

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by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1).

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AEDPA’s one-year limitation period runs from the latest of:

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Statute of Limitations

(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 initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
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collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.

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Id. § 2244(d)(1). The limitation period is tolled during the time period in “which a

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properly filed application for State post-conviction or other collateral review with respect

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to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). The limitation period is

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also subject to equitable tolling under certain circumstances. Holland v. Florida, 560

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U.S. 631, 634 (2010).

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Accrual Date

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On December 3, 2003, the Arizona Supreme Court denied review of the Arizona

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Court of Appeals’ affirmance of Petitioner’s convictions and sentences. Petitioner then

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had 90 days—or until March 2, 2004—to seek certiorari in the United States Supreme

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Court. Petitioner did not seek certiorari, and thus his conviction became final on March

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2, 2004. Accordingly, pursuant to 28 U.S.C. § 2244(d)(1)(A), the one-year period of

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limitation for filing a federal habeas corpus petition under 28 U.S.C. § 2254 expired on

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March 2, 2005. Petitioner concedes that he did not file his § 2254 Petition within one

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year of the date on which his conviction became final. (Doc. 28 at 3-4, 41, 48.)

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As described above, § 2244(d)(1) contains multiple provisions setting forth events

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that trigger the running of the limitations period. Petitioner argues that 28 U.S.C. §

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2244(d)(1)(B) is applicable; however, he fails to explain how “State action in violation of

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the Constitution or laws of the United States” impeded his ability to file a timely federal

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habeas petition. See 28 U.S.C. § 2244(d)(1)(B). To the extent that Petitioner is arguing

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that his ability to timely file his § 2254 Petition was impeded by his placement in a

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maximum security prison with limited access to legal materials and a law library, the

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Court notes that “[t]here is no constitutional right to file a timely § 2254 petition,” and

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therefore Petitioner can establish the applicability of § 2244(d)(1)(B) only by showing

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that State action “prevented him from presenting his claims in any form, to any court.”

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Ramirez v. Yates, 571 F.3d 993, 1000-1001 (9th Cir. 2009) (emphasis in original).

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Petitioner has not made this showing.

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Neither Petitioner’s § 2254 Petition (Doc. 1) nor his Reply (Doc. 28) mentions 28

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U.S.C. § 2244(d)(1)(C), and the Court finds the provision inapplicable. To the extent that

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Petitioner is arguing that the United States Supreme Court recognized new constitutional

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rights in Martinez v. Ryan, 566 U.S. 1 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012)

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(see Doc.1 at 29; Doc. 28 at 18, 26), that argument fails, as neither Martinez nor Lafler

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recognized a new constitutional right. See Buenrostro v. United States, 697 F.3d 1137,

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1139-40 (9th Cir. 2012).

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Petitioner argues that 28 U.S.C. § 2244(d)(1)(D) is applicable because he did not

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realize that he had meritorious ineffective assistance of counsel claims until he hired

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current counsel. (See Doc. 28 at 42-43.) However, the factual predicate of Petitioner’s

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ineffective assistance claims could have been discovered as soon as the ineffective

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assistance was rendered. The limitations period begins to run when a “‘prisoner knows

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(or through diligence could discover) the important facts, not when the prisoner

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recognizes their legal significance.’” Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir.

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2001) (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001)).

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In conclusion, AEDPA’s limitations period began to run on the date that

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Petitioner’s conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Accordingly,

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absent tolling, the limitation period expired on March 2, 2005—more than a decade

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before Petitioner filed his § 2254 Petition.

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2.

Statutory Tolling

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Petitioner argues that tolling under 28 U.S.C. § 2244(d)(2) accounts for the

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untimeliness of his § 2254 Petition. (See Doc. 28 at 4.) However, § 2244(d)(2) has no

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effect on the date that AEDPA’s limitation period expired in this case, because

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Petitioner’s initial Rule 32 PCR Petition was denied before his conviction became final,

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and his second PCR Petition was filed after the expiration of the limitation period under §

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2244(d)(1). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[W]e hold

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that section 2244(d) does not permit the reinitiation of the limitations period that has

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ended before the state petition was filed.”). Furthermore, the second PCR Petition was

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not properly filed, because it was denied as untimely pursuant to state law. (See Doc. 1-7

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at 18-22.)5 “[I]f a state court denies a petition as untimely, none of the time before or

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during the court’s consideration of that petition is statutorily tolled.” Bonner v. Carey,

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425 F.3d 1145, 1149 (9th Cir. 2005), as amended by 439 F.3d 993 (9th Cir. 2005); see

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also Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction petition is

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untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”).

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3.

Equitable Tolling

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“Equitable tolling is justified in few cases.” Spitsyn v. Moore, 345 F.3d 796, 799

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(9th Cir. 2003). The threshold necessary to trigger it is “very high, lest the exceptions

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swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal

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quotation marks omitted). “Determining whether equitable tolling is warranted is a fact-

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specific inquiry.” Spitsyn, 345 F.3d at 799 (internal quotation marks omitted). The party

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seeking to invoke equitable tolling “bears the burden of showing that this extraordinary

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exclusion should apply to him.” Miranda, 292 F.3d at 1065.

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A petitioner is entitled to equitable tolling of the § 2244(d) statute of limitations

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only if he establishes: “(1) that he has been pursuing his rights diligently, and (2) that

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some extraordinary circumstance stood in his way and prevented timely filing.” Holland,

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560 U.S. at 649 (internal quotation marks omitted). The phrase “stood in his way” means

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that “an external force”—as opposed to the petitioner’s own oversight, miscalculation, or

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negligence— must cause the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008,

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1011 (9th Cir. 2009). “The word ‘prevent’ requires the petitioner to demonstrate a causal

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relationship between the extraordinary circumstances on which the claim for equitable

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tolling rests and the lateness of his filing.” Valverde v. Stinson, 224 F.3d 129, 134 (2d

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Cir. 2000). This causal connection cannot be established “if the petitioner, acting with

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Because the Arizona Supreme Court denied review without providing
written reasoning (Doc. 1-7 at 24), the Court looks to the Arizona Court of Appeals’
memorandum decision as the last-reasoned state-court decision. See Murray v. Schriro,
745 F.3d 984, 996 (9th Cir. 2014) (“When a state court does not explain the reason for its
decision,” a federal court must “look through to the last state-court decision that provides
a reasoned explanation capable of review.” (internal quotation marks omitted)).
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reasonable diligence, could have filed on time notwithstanding the extraordinary

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circumstances.” Id.; see also Ramirez, 571 F.3d at 997 (the petitioner must show that

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extraordinary circumstances “were the cause of his untimeliness” and “made it

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impossible to file a petition on time” (internal quotation marks and alteration omitted)).

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A prisoner’s lack of access to his legal file may warrant equitable tolling, but only

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if the lack of access made it impossible for the prisoner to timely file a federal habeas

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petition despite the prisoner’s diligent pursuit of his rights. See Ramirez, 571 F.3d at 998.

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“Ordinary prison limitations” on law-library access do not constitute extraordinary

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circumstances justifying equitable tolling, particularly where a prisoner “offers no

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explanation of how or why his restricted library access made it impossible for him to file

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a timely § 2254 petition.” Id.

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“[A] pro se petitioner’s lack of legal sophistication is not, by itself, an

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extraordinary circumstance warranting equitable tolling.” Raspberry v. Garcia, 448 F.3d

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1150, 1154 (9th Cir. 2006). Similarly, a “garden variety claim of attorney negligence”

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does not warrant equitable tolling.

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“egregious attorney misconduct . . . may serve as a basis for equitable tolling.” Luna v.

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Kernan, 784 F.3d 640, 649 (9th Cir. 2015).

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a.

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See Holland, 560 U.S. at 651-52.

However,

Extraordinary Circumstances

Petitioner argues that the record establishes his “due diligence . . . under

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extraordinary circumstances.”

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circumstances” alleged by Petitioner include placement in a maximum security prison,

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frequent transfers, limited access to legal materials, erroneous advice by prison

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paralegals, lack of legal sophistication, indigence, lack of representation, and errors by

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prior counsel.

(Doc. 28 at 54.)

It appears that the “extraordinary

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To support his argument that placement in maximum security confinement and

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frequent transfers interfered with his ability to timely file his § 2254 Petition, Petitioner

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submits copies of transfer records and an affidavit. (See Docs. 40-1 and 40-2.) The

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transfer records and affidavit indicate that from March 2004 to March 2005—the

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limitations period for filing a timely § 2254 Petition—Petitioner was transferred from the

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Arizona State Prison Complex (“ASPC”)-Florence to ASPC-Tucson, and then transferred

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several times to different units within ASPC-Tucson. (Doc. 40-1 at 2; see also Doc. 40-2

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at 2.) At least one of the unit transfers appears to have resulted from a disciplinary

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violation. (Doc. 40-1 at 2.) Petitioner’s affidavit describes the transfers, but it does not

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explain how they prevented Petitioner from timely filing his § 2254 Petition.

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Furthermore, Petitioner states that, after a July 2008 transfer, he “was finally able to settle

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in and seek out an attorney.” (Doc. 40-2 at 3.) Thus, even if Petitioner could show that

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frequent transfers interfered with his ability to file a § 2254 Petition prior to 2008, by his

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own admission the interference ended in July 2008, and yet Petitioner waited seven more

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years before filing his § 2254 Petition.

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Petitioner also complains that he lacked access to legal materials.6 (See, e.g., Doc.

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28 at 10.) In an affidavit, Petitioner states that he attempted “to obtain some legal course

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materials in 2001, but was not permitted to obtain them.” (Doc. 1-2 at 17.) Petitioner

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does not describe the materials that he attempted to obtain, nor does he explain how lack

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of access to those materials prevented him from timely filing his § 2254 Petition.

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Petitioner goes on to state that, “[f]rom 2004 to 2007, [he] sent letters to the resource law

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library requesting legal information, but was unable to receive any information.” (Id.)

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Again, Petitioner does not explain what information he requested or how lack of access to

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that information made it impossible for him to timely file his § 2254 Petition. Petitioner

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complains generally that ADOC’s prison library is inadequate and that it lacks case law.

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(Doc. 40-2 at 3.) However, he also states that in August 2009, he was transferred to the

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Browning Unit, where he lived next door to a prisoner who possessed “a very healthy

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amount of case law.” (Id.) Because Petitioner has not adequately explained how a lack

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Petitioner’s arguments appear to be focused on a lack of access to legal
research materials, rather than a lack of access to his case file. In an affidavit, Petitioner
indicates that his family contacted attorney Susan Fox in or around February 2005 and
gave her all of Petitioner’s legal documents, and that Fox thereafter became unavailable
and unable to move forward on Petitioner’s case. (Doc. 40-2 at 2.) However, Petitioner
does not indicate that he lacked access to his case file as a result of Susan Fox’s conduct.
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of access to legal research materials made it impossible for him to file a timely § 2254

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petition, he has not shown that he is entitled to equitable tolling on this ground.

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Furthermore, even if he had shown that lack of law-library access prevented him from

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filing a timely § 2254 petition, by his own admission he had access to “a very healthy

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amount of case law” by August 2009, and yet he did not file his § 2254 Petition until

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almost six years later.

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Petitioner further complains that prison paralegals gave him erroneous legal advice

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regarding whether any sentencing issues existed in his case and whether Apprendi v. New

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Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), applied to

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him. (Doc. 1 at 18, 25; Doc. 1-2 at 17; Doc. 28 at 9-10.) According to his affidavits,

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from April 1, 2005 to November 1, 2005 and from January 1, 2007 to October 1, 2007,

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Petitioner requested information from prison paralegals regarding whether he had any

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sentencing issues and whether Blakely applied to him. (Doc. 1-2 at 17; see also Doc. 40-

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2 at 2.) He was told that he did not have any sentencing issues and that Blakely did not

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apply. (Doc. 1-2 at 17; Doc. 40-2 at 2.) Assuming that the advice of the prison

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paralegals was erroneous, that advice affected only sentencing claims premised on

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Blakely and Apprendi. Furthermore, in 2011, Petitioner filed a second Rule 32 PCR

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Petition that argued that Apprendi and Blakely applied to him. Accordingly, even if the

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advice of prison paralegals prevented Petitioner from filing a § 2254 petition challenging

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his sentencing prior to 2011, by his own admission, Petitioner was able to file court

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documents challenging his sentencing under Apprendi and Blakely by at least 2011, and

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yet he waited until 2015 before filing his § 2254 Petition.7

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Petitioner also asserts that equitable tolling is warranted on account of his lack of

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legal sophistication, his indigence, and the conduct of his prior attorneys. (See, e.g., Doc.

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1 at 16-18, 25, 29-30; Doc. 28 at 10, 49.) In his affidavits, Petitioner states that he was

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Petitioner argues that he was properly attempting to exhaust state remedies
prior to filing a federal habeas petition. However, that explanation is insufficient to
explain the untimeliness of his § 2254 Petition. Petitioner could have filed a protective
federal habeas petition and asked the federal court to stay and abey the federal habeas
proceedings while he attempted to exhaust state remedies. See Pace, 544 U.S. at 416.
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1

19 years old when he was arrested, and he had no legal background. (Doc. 1-2 at 16.)

2

He has been indigent throughout the relevant proceedings. (Id. at 17; see also Doc. 28 at

3

10.) Due to his lack of legal sophistication, he was unaware that he had meritorious

4

claims of ineffective assistance of counsel and plain errors, until attorney Thomas

5

Higgins and present counsel Stanton Bloom raised the issues.

6

Petitioner also complains that his appellate attorney told him that there were no

7

sentencing issues in his case. (Id. at 16-17.)8

(Doc. 1-2 at 17.)

8

“Petitioner’s ignorance of the law and indigent status do not distinguish him from

9

the great majority of inmates pursuing habeas corpus relief.” McMillan v. Ryan, No. CV-

10

15-02440-PHX-JJT (BSB), 2016 WL 1659131, at *4 (D. Ariz. Mar. 9, 2016). “If limited

11

resources, lack of legal knowledge, and the difficulties of prison life were an excuse for

12

not complying with the limitation period,” AEDPA’s statute of limitations “would be

13

meaningless since virtually all incarcerated prisoners have these same problems in

14

common.” Bolanos v. Kirkland, No. 1:06-cv-00808-AWI-TAG HC, 2008 WL 928252, at

15

*4 (E.D. Cal. Apr. 4, 2008). Petitioner’s lack of legal sophistication and indigent status

16

do not, on their own, entitle him to equitable tolling. See McMillan, 2016 WL 1659131,

17

at *4.

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The attorney errors asserted by Petitioner do not rise to the level of egregious

19

misconduct that may warrant equitable tolling. Furthermore, Petitioner has not shown the

20

requisite causation between the asserted attorney errors and his failure to timely file his §

21

2254 Petition.

22

ineffectiveness of his appellate and initial PCR attorney, R. Lamar Couser. Although

23

Couser’s conduct may be relevant to issues of exhaustion and procedural default,

The majority of Petitioner’s arguments pertain to the alleged

24
8

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26
27
28

Although Petitioner argues that he “was totally unaware of his right to file a
Rule 32 Petition alleging ineffective assistance of Trial and Appellate Counsel” (Doc. 1
at 14), this argument is contradicted by the record. In an affidavit, Petitioner concedes
that his appellate attorney informed him that he could raise the issue of ineffective
assistance of appellate counsel in a second Rule 32 proceeding if another attorney found
any sentencing issues. (Doc. 1-2 at 17.) Furthermore, the record reflects that in February
2004, Couser sent Petitioner a letter informing him that he could file a second Rule 32
petition and attempt to counter a waiver argument by claiming that Couser was
ineffective in not raising sentencing issues. (Doc. 1-3 at 6.)
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Petitioner has not explained how that conduct made it impossible for him to timely file a

2

§ 2254 Petition. See McMillan, 2016 WL 1659131, at *4 (rejecting argument that alleged

3

failures of Rule 32 counsel justified equitable tolling, as petitioner did “not explain how

4

those failures prevented him from filing a timely habeas corpus petition” in federal

5

court).

6

Petitioner indicates in an affidavit that, in or around February 2005, his family

7

contacted attorney Susan Fox but that she thereafter “had some sort of family problem

8

that caused her to be completely unavailable and unable to move forward on preparing

9

[Petitioner’s] 2254 petition.” (Doc. 40-2 at 2.) Petitioner does not provide sufficient

10

information from which the Court could determine whether attorney Fox’s conduct

11

constitutes client abandonment or other egregious conduct that could be categorized as

12

“extraordinary circumstances” for purposes of equitable tolling.

13

Petitioner were to provide more detailed information about Fox’s conduct, he could not

14

show that the conduct caused the untimeliness of his § 2254 Petition. After learning that

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Fox could not move forward with preparing a § 2254 petition, Petitioner could have

16

contacted another attorney and, even if he lacked the funds to hire a different attorney at

17

that time, he could have filed a § 2254 petition pro se.

However, even if

18

Petitioner also complains about delay in the initiation of his second PCR

19

proceedings allegedly caused by attorney Thomas Higgins, who apparently attempted to

20

file a Rule 32 PCR Petition in 2009 but erroneously filed it under the wrong case number.

21

However, “Petitioner’s difficulties in filing a petition for post-conviction relief in the

22

state court[] do not explain his failure to file a timely petition for writ of habeas corpus in

23

this Court.” McMillan, 2016 WL 1659131, at *4. Furthermore, as discussed above, the

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limitation period for filing Petitioner’s § 2254 Petition expired in March 2005, and thus

25

the limitation period would not have been tolled under 28 U.S.C. § 2244(d)(2) during the

26

time that Petitioner’s second PCR Petition was pending, even if the second PCR Petition

27

had been filed in 2009 rather than in 2011.

28

Petitioner’s reliance on Martinez v. Ryan to support equitable tolling is misplaced.

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Pursuant to Martinez, “[i]nadequate assistance of counsel at initial-review collateral

2

proceedings may establish cause for a prisoner’s procedural default of a claim of

3

ineffective assistance at trial.” 566 U.S. at 9. Martinez applies only to procedural default

4

issues and is inapplicable to the issue of equitable tolling of AEDPA’s statute of

5

limitations. See McMillan, 2016 WL 1659131, at *4; see also Wheelwright v. Wofford,

6

No. 2:13-cv-0787-GGH(HC), 2014 WL 3851155, at *3 (E.D. Cal. Aug. 5, 2014).

7

Petitioner has not shown that extraordinary circumstances caused the untimeliness

8

of his § 2254 Petition.

9

b.

Diligence

10

Even if Petitioner could establish extraordinary circumstances, he cannot establish

11

diligence. Petitioner’s § 2254 Petition is over ten years late. Although Petitioner makes

12

conclusory arguments regarding diligence (see, e.g., Doc. 28 at 51-52, 54, 58) and

13

indicates that he made intermittent attempts to obtain legal information and/or legal

14

representation at various points in time, he has fallen far short of establishing that he has

15

been pursuing his rights diligently for over ten years. Even prior to hiring counsel in

16

2009, Petitioner could have filed a § 2254 petition pro se. Nothing in the record indicates

17

that he made any attempt to do so. Petitioner’s intermittent attempts to obtain legal

18

information and legal representation are a far cry from the efforts of petitioners who have

19

successfully established diligence in prior case law. See, e.g., Holland, 560 U.S. at 652-

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54 (petitioner repeatedly contacted his attorney, emphasizing the need to file a timely

21

federal habeas petition and identifying the applicable legal rules, and he prepared a

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habeas petition pro se the very day that he discovered that AEDPA’s statute of limitations

23

had expired due to his attorney’s failings).

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4.

Miscarriage of Justice—Actual Innocence

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“[A]ctual innocence, if proved, serves as a gateway through which a petitioner

26

may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute

27

of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). However, “tenable

28

actual-innocence gateway pleas are rare.” Id. “To invoke the miscarriage of justice

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exception to AEDPA’s statute of limitations . . . , a petitioner ‘must show that it is more

2

likely than not that no reasonable juror would have convicted him” in light of “new

3

evidence.” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). A petitioner

4

cannot merely assert that the evidence presented at trial was insufficient; he must prove

5

his innocence with “new reliable evidence—whether it be exculpatory scientific

6

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not

7

presented at trial.” Schlup, 513 U.S. at 324.

8

In the present case, Petitioner asserts his innocence, but he has not identified any

9

new evidence that was not presented at trial. Without any new evidence of actual

10

innocence, Petitioner cannot make the showing required to invoke the miscarriage of

11

justice exception to AEDPA’s statute of limitations.

12

5.

Conclusion

13

For the reasons stated above, the Court finds that the one-year limitation period

14

expired on March 2, 2005. Petitioner’s currently pending § 2254 Petition (Doc. 1)—filed

15

more than ten years late, on July 9, 2015—is barred by AEDPA’s statute of limitations.

16

Petitioner has requested an evidentiary hearing on the issue of the statute of

17

limitations. The Court finds that an evidentiary hearing would be futile because it is clear

18

that Petitioner’s § 2254 Petition is time-barred.

19

B.

20

A habeas petition filed on behalf of a person in custody pursuant to the judgment

21

of a state court cannot be granted unless the petitioner satisfies AEDPA’s exhaustion

22

requirements. See 28 U.S.C. § 2254(b)(1); Coleman v. Thompson, 501 U.S. 722, 731

23

(1991). To satisfy the exhaustion requirements, a petitioner must “fairly present” his

24

claims to the state’s highest court in a procedurally appropriate manner. See O’Sullivan

25

v. Boerckel, 526 U.S. 838, 848 (1999). A claim is considered procedurally defaulted if

26

(1) the claim was presented in state court but found to be precluded based on an

27

independent and adequate state procedural bar, or (2) the claim was not presented in state

28

court and no state remedies are currently available because the court to which the

Exhaustion and Procedural Default

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petitioner would be required to present the claim in order to meet the exhaustion

2

requirement would find the claim procedurally barred under state law. See Coleman, 501

3

U.S. at 729-30, 732, 735 n.1. Federal courts may consider the merits of procedurally

4

defaulted claims only if the petitioner demonstrates cause and prejudice, or a fundamental

5

miscarriage of justice. Id. at 750.

6

It appears that most or all of Petitioner’s claims are procedurally defaulted.

7

However, having concluded that Petitioner’s § 2254 Petition is clearly untimely, the

8

Court declines to reach the parties’ arguments concerning procedural default.

9
10

IT IS ORDERED that the reference to Magistrate Judge Bernardo P. Velasco is
withdrawn.

11

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus

12

pursuant to 28 U.S.C. § 2254 (Doc. 1) is dismissed as untimely. The Clerk of Court is

13

directed to enter judgment accordingly and close this case.

14

IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing

15

Section 2254 Cases, the Court declines to issue a certificate of appealability, because

16

reasonable jurists would not find the Court’s ruling debatable. See Slack v. McDaniel,

17

529 U.S. 473, 478, 484 (2000).

18

Dated this 6th day of February, 2018.

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