Roman-Lizarraga v. Ryan et al

Filing 31

REPORT AND RECOMMENDATION re: 1 Petition for Writ of Habeas Corpus (State/2254) filed by Florencio Roman-Lizarraga. Magistrate Judge recommends that the District Court, enter an order DISMISSING the 1 Petition for Writ of Habeas Corpus. It is tim e-barred. Any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. Local Rules permit a response to an objection; they do not permit a reply to a response without the permission of the District Court. Signed by Magistrate Judge Leslie A Bowman on 6/26/17.(BAC)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Florencio Roman-Lizarraga,
9

Petitioner,
10

vs.
11

Charles L. Ryan; et al.,
12

Respondents.
13

)
)
)
)
)
)
)
)
)
)
)

CV 16-0656-TUC-DCB (LAB)
REPORT AND RECOMMENDATION

14

Pending before the court is a petition for writ of habeas corpus filed in this court on
15

October 3, 2016, by Florencio Roman-Lizarraga, an inmate currently held in the Arizona State
16

Prison Complex in Tucson, Arizona. (Doc. 1)
17

Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate
18

Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
19

The Magistrate Judge recommends that the District Court, after its independent review
20

of the record, enter an order dismissing the petition. It is time-barred.
21
22

Summary of the Case
23

Roman-Lizarraga was convicted in absentia after a jury trial of “conspiracy to possess
24

a narcotic drug for sale, possession of a narcotic drug for sale, and sale of a narcotic drug.”
25

(Doc. 24-1, p. 3) The trial court sentenced him to “concurrent ten-year terms for each offense.”
26

Id.
27
28

1

Roman-Lizarraga filed a notice of appeal, but counsel filed an Anders brief being unable

2

to find any meritorious issues. (Doc. 24-1, p. 3) Roman-Lizarraga was given an opportunity

3

to file a supplemental brief pro se, but he failed to do so. Id.; (Doc. 24-9) The appellate court

4

independently searched the record for fundamental error and finding none, affirmed the

5

convictions and sentences on October 27, 2011. (Doc. 24-1, pp. 2-4) Roman-Lizarraga did not

6

file a petition for review with the Arizona Supreme Court. (Doc. 24-10)

7

On December 5, 2011, Roman-Lizarraga filed a notice of post-conviction relief (PCR).

8

(Doc. 25, p. 3) He argued trial counsel and appellate counsel were ineffective for failing to

9

prevent his being tried in absentia. (Doc. 25, p. 8) He further argued trial counsel failed to

10

transmit the state’s plea offer to him. Id. Had he been offered this plea agreement, he would

11

have accepted it. Id.

12

The PCR court found no evidence that trial counsel or appellate counsel were ineffective

13

and dismissed the petition on July 30, 2013. (Doc. 27, pp. 13-21) The court noted that trial

14

counsel met with Roman-Lizarraga three days after the plea offer was made. Id. And while

15

trial counsel refused to tell the court what transpired at that meeting, it is likely that the state’s

16

plea offer was a topic of discussion. Id. The court further noted that the defendant absconded

17

eleven days later on December 1, 2009. Id. The Arizona Court of Appeals granted review but

18

denied relief on February 25, 2014. (Doc. 27, pp. 48-50) The Arizona Supreme Court denied

19

review on November 7, 2014. (Doc. 27, p. 52)

20

Almost two years later on September 28, 2016, Roman-Lizarraga constructively filed in

21

this court his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 (Doc. 1) He filed

22

a supplement on October 20, 2016. (Doc. 6)

23

Roman-Lizarraga claims (1) his rights under the Fifth, Sixth, Eighth, and Fourteenth

24

Amendments were violated when he was tried in absentia, (2) trial counsel was ineffective for

25

failing to prevent his being tried in absentia, (3) his Constitutional rights were violated by his

26
27
28

1

September 28, 2016 is the date the petition was placed in the prison mailing system. (Doc.
1, p. 21), see Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010).
-2-

1

trial in absentia, trial counsel committed errors pretrial, at trial, and at sentencing, the trial court

2

committed errors at trial, appellate counsel failed to raise colorable claims, his Fourth

3

Amendment rights were violated by the police, and the appellate court failed to grant his

4

ineffective assistance of counsel claims, and (4) trial counsel failed to collect character

5

evidence. (Doc. 1); (Doc. 14, pp. 3-4)

6
7
8

On May 2, 2017, the respondents filed an answer arguing among other things that the
petition is time-barred. (Doc. 23) Roman-Lizarraga did not file a reply.
The respondents are correct; the petition is time-barred.

9
10

Discussion

11

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

12

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

13

however, must be filed within the applicable limitation period or it will be dismissed. The

14

statute reads in pertinent part as follows:

16

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--

17

(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 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.

15

(1)

18
19
20
21
22
23
24
25
26
27

(2)

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.

28
-3-

1

28 U.S.C. § 2244(d). The “one-year statute of limitations . . . applies to each claim in a habeas

2

application on an individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1170 (9th Cir. 2012).

3

The limitation period for each of Roman-Lizarraga’s claims was triggered on “the date

4

on which the judgment became final by the conclusion of direct review or the expiration of the

5

time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). None of the other statutory triggers

6

apply to this case. 28 U.S.C. § 2244(d)(1).

7

On October 27, 2011, the Arizona Court of Appeals affirmed Roman-Lizarraga’s

8

convictions and sentences. (Doc. 24-1, pp. 2-4) He then had 35 days to file a petition for

9

review with the Arizona Supreme Court. Ariz.R.Crim.P. 31.19(a) (30 days to petition the

10

Arizona Supreme Court); Ariz.R.Crim.P. 1.3(a) (5 days added for service). His judgment

11

became final when he failed to do so on December 1, 2011. See Hemmerle v. Schriro, 495 F.3d

12

1069, 1073-74 (9th Cir. 2007), cert. denied, 555 U.S. 829 (2008).

13

The one-year limitation period ran for four days until December 5, 2011 when Roman-

14

Lizarraga filed a notice of post-conviction relief. See 28 U.S.C. § 2244(d)(2). Tolling pursuant

15

to § 2244(d)(2) continued until the Arizona Supreme Court denied review on November 7,

16

2014. (Doc. 27, p. 52)

17

The limitation period began running the next day and expired 361 days later on

18

November 3, 2015. See Hemmerle, 495 F.3d at 1077. Roman-Lizarraga constructively filed

19

his petition on September 28, 2016. (Doc. 1, p. 21) It is time-barred.

20

In his petition, Roman-Lizarraga argues the limitation period should be equitably tolled

21

because he “did not have access to [his] legal material,” does not “read or speak English,” and

22

“was not advised of the statute of limitations.” (Doc. 1, p. 21)

23

“[A] petitioner is entitled to equitable tolling [of the limitation statute] only if he shows

24

(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

25

stood in his way and prevented timely filing.” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir.

26

2011) (punctuation modified), cert. denied, 131 S.Ct. 3039 (2011). “The petitioner must

27

additionally show that the extraordinary circumstances were the cause of his untimeliness and

28

that the extraordinary circumstances made it impossible to file a petition on time.” Id. “The
-4-

1

high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule.”

2

Id.

3

Roman-Lizarraga asserts first that he “did not have access to [his] legal material[s].”

4

(Doc. 1, p. 21) He further explains that he “was unable to obtain my legal materials from the

5

court or the department of correction[s] and my lawyer did not [] respond to my request.” Id.

6

Under certain circumstances, difficulties in obtaining one’s legal materials may justify equitable

7

tolling. See Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003) (Equitable tolling was justified

8

where the petitioner’s attorney retained the petitioner’s file for the duration of the limitation

9

period and more than two months beyond despite numerous demands that the attorney file a

10

timely petition.) Here, however, Roman-Lizarraga fails to explain specifically what difficulties

11

he experienced and what he did to overcome those difficulties. Accordingly, he has failed to

12

show that he acted diligently. Moreover, he does not explain what materials he sought and

13

when he finally received them, if he did. Accordingly, he has not shown that his lack of legal

14

materials “made it impossible to file [his] petition on time.” See Lakey v. Hickman, 633 F.3d

15

at 786.

16

Roman-Lizarraga further argues he is entitled to equitable tolling because he does not

17

“read or speak English.” (Doc. 1, p. 21) Again, he fails to show how this fact prevented him

18

from filing a timely petition despite his diligent efforts. The pending petition is written in

19

English, so he must have been able to find translation assistance at some point.

20

Finally, Roman-Lizarraga argues that he “was not advised of the statute of limitations.”

21

(Doc. 1, p. 21) While that may be the case, “a pro se petitioner’s lack of legal sophistication

22

is not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v.

23

Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
Roman-Lizarraga further states that he is “raising a claim of actual innocence.” (Doc.

24
25

1, p. 21) He does not, however, make any actual argument in support of this assertion.

26

//

27

//

28
-5-

1

RECOMMENDATION

2

The Magistrate Judge recommends that the District Court, after its independent review

3

of the record, enter an order DISMISSING the petition for writ of habeas corpus. (Doc. 1) It

4

is time-barred.

5

Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

6

14 days of being served with a copy of this report and recommendation. If objections are not

7

timely filed, they may be deemed waived. The Local Rules permit a response to an objection.

8

They do not permit a reply to a response without the permission of the District Court.

9
10

DATED this 26th day of June, 2017.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6-