ALMAZAN v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 18

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/20/15. 1/22/15 ENTERED AND COPIES MAILED TO PETITIONER AND EMAILED TO COUNSEL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROQUE GUTIERRES ALMAZAN,
Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA,
et al.,
Respondents.

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CIVIL ACTION
NO. 13-151

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

January 20, 2015

Roque Gutierres Almazan (“Petitioner”) is a prisoner
at State Correctional Institution — Benner in Bellefonte,
Pennsylvania. Petitioner filed a pro se application seeking
relief through a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (“Habeas Petition”). Magistrate Judge Lynne A. Sitarski
(“Judge Sitarski”) recommended denial of the Habeas Petition
without an evidentiary hearing and with no certificate of
appealability. Petitioner now objects. For the reasons that
follow, the Court will deny Petitioner’s Habeas Petition.

I.

BACKGROUND

The Pennsylvania Superior Court has offered the
following summary of the facts:
On Christmas Eve of 2005, at approximately 10:00
p.m., Gutierrez-Almazan and another man, Vincente
Carillo, went to Concepcion Arias Tellez’s apartment.
(Tellez was Gutierrez-Almazan’s estranged common law
wife.) Gutierrez-Almazan then forcibly removed Tellez
from her apartment. A neighbor heard a woman screaming
and looked out her window and saw Gutierrez-Almazan and
Carillo frog-marching Tellez to a van where yet another
man, Juan Carillo, was waiting in the driver’s seat.
The neighbor immediately called the police.
The trio then drove Tellez to an apartment
building where she was taken into an apartment.
Gutierrez-Almazan then struck and raped Tellez. The
police eventually entered the apartment and found
Gutierrez-Almazan completely nude and observed Tellez
also nude and in a fetal position; she was sobbing
uncontrollably and had bruises on her neck, face, lower
back, and legs. Tellez told the police that GutierrezAlmazan raped her. The police arrested GutierrezAlmazan and took Tellez to a local hospital where a
nurse completed a rape kit and recovered a white
substance inside Tellez’s vagina. The substance never
underwent DNA testing.
Commonwealth v. Gutierrez-Almazan, No. 319 EDA 2007, slip op. at
26-27 (Pa. Super. Ct. Feb. 23, 2009), ECF No. 5-2.
Petitioner was charged with rape, kidnapping, simple
assault, criminal conspiracy, and related offenses. On June 29,
2006, following a jury trial in the Bucks County Court of Common
Pleas, Petitioner was found guilty of rape, kidnapping, unlawful
restraint, and simple assault. On September 26, 2006, the trial
court sentenced Petitioner to five to ten years’ imprisonment.
Report & Recommendation (“R&R”) 2.
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Petitioner filed a counseled post-sentence motion,
asserting the following grounds for relief: (1) counsel was
ineffective for failing to call relevant witnesses and to
request DNA testing; (2) there was insufficient evidence in
support of the guilty verdict; and (3) the verdict was against
the weight of the evidence. R&R 2-3. The motion was denied.
On direct appeal, Petitioner raised one issue: whether
trial counsel was ineffective in failing to request testing of
the DNA evidence. The Pennsylvania Superior Court affirmed
Petitioner’s sentence on February 23, 2009, and denied allocatur
review on August 5, 2009. R&R 3.
On March 22, 2010, Petitioner filed a pro se petition
pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”).
PCRA counsel was appointed. A PCRA evidentiary hearing was held
on December 10, 2010, and Petitioner clarified that he was
seeking relief on the following grounds: (1) trial counsel was
ineffective for failing to effectively cross-examine one of the
police officers regarding differences between his court
testimony and his police report; (2) Juan and Vincente Carillo
had recanted testimony; (3) the Spanish interpreter at trial
provided incompetent translation services; (4) trial counsel was
ineffective for failing to obtain and present DNA evidence; (5)
Petitioner should have been judged by Mexican law since
Petitioner and his wife were Mexican citizens illegally residing
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in the United States; and (6) Petitioner’s arrest and
prosecution violated the Vienna Convention. R&R 4-5. At the
conclusion of the evidentiary hearing, the court denied
Petitioner PCRA relief and permitted PCRA counsel to withdraw.
R&R 5.
Petitioner appealed. On February 17, 2011, he filed a
pro se Statement of Matters Complained of on Appeal. The PCRA
court denied his claims and reappointed PCRA counsel for the
purposes of appeal. R&R 6. On September 23, 2011, the Superior
Court affirmed the PCRA court’s order denying relief and allowed
PCRA counsel to withdraw again. The Supreme Court then denied
several Petitions for Allowance of Appeal. Id.
On July 18, 2012, Petitioner filed the Habeas Petition
– written entirely in Spanish – in the United States District
Court for the Middle District of Pennsylvania. The case was then
transferred to the Western District of Pennsylvania, which
ordered Petitioner to file an amended petition in English on
October 9, 2012. Petitioner did so on October 31, 2012. On
January 13, 2013, the case was transferred to this District. ECF
No. 1. On February 19, 2013, the Government filed an Answer in
Opposition to the Habeas Petition. ECF No. 5. Judge Sitarski
entered a Report and Recommendation (“R&R”) on June 19, 2014
(ECF No. 15), and Petitioner filed a timely objection

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(“Objection”) (ECF No. 17). The matter is now ripe for
disposition.
II.

LEGAL STANDARD
The Court may refer an application for a writ of

habeas corpus to a U.S. Magistrate Judge for a report and
recommendation. 28 U.S.C. § 636(b)(1)(B). A prisoner may object
to the magistrate judge’s report and recommendations within
fourteen days after being served with a copy thereof. See
§ 636(b)(1); E.D. Pa. Civ. R. 72.1(IV)(b). The Court must then
“make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” § 636(b)(1). The Court does not review
general objections. See Brown v. Astrue, 649 F.3d 193, 195 (3d
Cir. 2011) (“We have provided that § 636(b)(1) requires district
courts to review such objections de novo unless the objection is
not timely or not specific.” (internal quotation marks
omitted)). The Court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate
judge.” § 636(b)(1).
On habeas review, the Court must determine whether the
state court’s adjudication of the claims raised was (1) contrary
to, or an unreasonable application of, clearly established
federal law, or (2) based on an unreasonable determination of

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the facts in light of the evidence presented. See 28 U.S.C.
§ 2254(d).
III. DISCUSSION
Judge Sitarski recommends that Petitioner’s habeas
claims be denied without consideration of his alleged
substantive grounds for relief because his claims are barred as
untimely and equitable tolling should not apply. Petitioner
objects, arguing that because he does not understand English and
has been denied legal assistance, he can show the “extraordinary
circumstances” required for equitable tolling to apply. These
arguments are analyzed below.
A.

Statute of Limitations
This Habeas Petition is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), which sets
forth a strict one-year deadline for the filing of new petitions
under 28 U.S.C. § 2254. The statute of limitations begins to run
from the latest of:
(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
application created
of the Constitution
is removed, if the
filing by such State

the impediment to filing an
by State action in violation
or laws of the United States
applicant was prevented from
action;
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(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.

28 U.S.C. § 2244(d)(1). There is a tolling exception: “The time
during which a properly filed application for State postconviction 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.”
§ 2244(d)(2).
Petitioner concedes that his Habeas Petition was
untimely and that his claims are barred unless they are subject
to equitable tolling (Objection 6). Therefore, the Court will
adopt the portion of the R&R concerning the statute of
limitations as it applies to this Habeas Petition:
In the instant case, the applicable starting point
for the statute of limitations is the “conclusion of
direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A). The Supreme
Court of Pennsylvania denied allocatur for Petitioner’s
direct appeal on August 5, 2009. (Resp. Ex. A at 17).
Petitioner then had ninety days to petition the Supreme
Court of the United States for a writ of certiorari,
which he did not do. See Kapral v. United States, 166
F.3d
565,
570-71
(3d
Cir.
1999).
Therefore,
Petitioner’s judgment of sentence became final on
November 3, 2009, when the time for seeking certiorari
expired. See id. at 575 (holding that where certiorari
is not sought, judgment of sentence becomes final when
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the time for seeking certiorari review expires).
Consequently, Petitioner had one year from that date,
or until November 3, 2010, to file his habeas petition.
See 28 U.S.C. § 2244(d)(1).
However, on March 22, 2010 – 139 days into the
federal statute of limitations – Petitioner filed his
PCRA petition. (Pet. Ex. 36.) Because this petition was
filed in accordance with Pennsylvania’s procedural
requirements, it is considered a properly filed
application for state post-conviction relief, thereby
tolling AEDPA’s one year limitation period. See 28
U.S.C. § 2244(d)(2) (“The time during which a properly
filed application for State post-conviction [review]
. . . is pending shall not be counted toward any period
of limitation under this subsection.”); see also Artuz
v. Bennett, 531 U.S. 4, 8 (2000) (“an application is
‘properly filed’ when its delivery and acceptance are
in compliance with the applicable laws and rules
governing filings”). Further, such a petition is
considered “pending” within the meaning of § 2244(d)(2)
during the time a state prisoner is pursuing his state
post-conviction remedies, including the time for
seeking discretionary review of any court decisions
whether or not such review was actually sought. See
Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000).
However, the time during which a state prisoner may
petition for a writ of certiorari from the denial of a
state collateral petition in the Supreme Court of the
United States does not toll the AEDPA’s statutory
period. Stokes v. Dist. Attorney of Phila., 247 F.3d
539, 542 (3d Cir. 2001).
In Petitioner’s case, the Superior Court denied
Petitioner’s PCRA petition on September 23, 2011.
Commonwealth v. Almazan, No. 78 EDA 2011 (Bucks Ct. Cm.
Pl., Sept. 23, 2011)). Thus, the AEDPA’s statute of
limitations began to run again on October 24, 2011 –
the expiration of the time for seeking review of the
decision to the Pennsylvania Supreme Court. See Jenkins
v. Superintendent of Laurel Highlands, 705 F.3d 80, 85
n.4 (3d Cir. 2013) (“A PCRA petition remains pending
“during the time a prisoner has to seek review of the
Pennsylvania Superior Court’s decision [by filing a
petition for allowance of appeal to the Pennsylvania
Supreme Court] whether or not review is actually
sought.”) (citation omitted). At this point, Petitioner
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had 226 days remaining, or until June 6, 2012, to file
a timely § 2254 petition.
Petitioner failed to meet this deadline, as he
filed the instant petition on July 18, 2012, over a
month after the expiration of the AEDPA’s statutory
period.
Consequently,
Petitioner
is
barred
from
presenting his claims, unless the instant petition is
subject to equitable tolling.
R&R 9-12 (footnote omitted).
B.

Equitable Tolling
AEDPA’s one-year statute of limitations period is

subject to equitable tolling. Holland v. Florida, 560 U.S. 631,
645 (2010); see also Alicia v. Karestas, No. 07-03183, 2008 WL
4108056, at *3 (E.D. Pa. Aug. 28, 2008) (Robreno, J.) (citing
Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.
1998)). A petitioner qualifies for equitable tolling only if he
is able to show: “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood
in his way’ and prevented timely filing.” Holland, 560 U.S. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
The Third Circuit has recognized that equitable
tolling may toll the one-year statute of limitations under the
following three circumstances: “(1) if the defendant has
actively misled the plaintiff; (2) if the plaintiff has in some
extraordinary way been prevented from asserting his rights; or
(3) if the plaintiff has timely asserted his rights, but has
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mistakenly done so in the wrong forum.” Jones v. Morton, 195
F.3d 153, 159 (3d Cir. 1999) (internal quotation marks omitted).
1.

Extraordinary Circumstances

Petitioner alleges that given his circumstances, his
inability to understand English triggers equitable tolling under
Pabon v. Mahanoy, 654 F.3d 385 (3d Cir. 2011). In Pabon, the
Third Circuit held that the “inability to read or understand
English, combined with denial of access to translation or legal
assistance, can constitute extraordinary circumstances that
trigger equitable tolling.” Id. at 400. The relevant inquiry
under Pabon “is not whether the circumstance alleged to be
extraordinary is unique to the petitioner, but how severe an
obstacle it creates with respect to meeting AEDPA’s one-year
deadline.” Id. at 401.
Petitioner alleges sufficient facts to demonstrate
that he was entitled to assistance due to his difficulties with
the English language: throughout his state court proceedings,
Petitioner required the services of an interpreter, and he has
made numerous filings in Spanish throughout all his postconviction proceedings, consistently noting that he does not
speak English.
Whether Petitioner received the translation or legal
assistance to which he was entitled is less clear. In his
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Objection to the R&R, Petitioner alleges that “no materials or
computer” were available in the Spanish language, and that he
was given a § 2254 form in English, not Spanish. Objection 3, 6.
However, the prison law library did provide Petitioner with an
interpreter named Marcos, who assisted Petitioner with language
translation throughout his direct appeal. Marcos also typed
Petitioner’s documents for him. Id. at 4. Petitioner does not
allege that Marcos’s assistance (or the assistance of a
replacement) ever ceased to be available to him, including when
it came time to file his Habeas Petition. But he does allege
that he was denied legal assistance after the conclusion of his
direct appeal. Id. at 6. It is somewhat unclear, therefore,
whether Petitioner did have translation or legal assistance
available to him throughout the duration of the time during
which he could have filed a timely habeas petition.
Petitioner’s allegations therefore fall somewhere
between the allegations of the petitioner in Pabon, who
affirmatively stated that he was “repeatedly denied legal
materials in Spanish or translation assistance,” 654 F.3d at
401, and many petitioners who have failed to allege such facts.
As Judge Sitarski notes, “[c]ourts in this District have found
that Pabon does not apply when the Petitioner fails to explain
the efforts he made to get AEDPA materials in his native
language and does not indicate how prison officials denied him
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access to such materials.” R&R 13-14.1
Here, Petitioner’s access to assistance from Marcos
distinguishes his allegations from those of the petitioner in
Pabon. In Pabon, the petitioner received an evidentiary hearing
because there was substantial evidence in the record showing
that he “consistently claimed to be a non-English speaker,
required a translator in his interactions with the police and
the court system, lacked access to legal materials or notice of
AEDPA in Spanish in the [restricted housing unit] where he was
housed for five years, and was repeatedly denied legal materials
1

See, e.g., Cruz-Ventura v. United States, No. 13-7230, 2014 WL
5023441, at *2 (E.D. Pa. Oct. 7, 2014) (denying habeas relief
where was “no indication that [Petitioner] lacked access to
materials in Spanish or that he was denied language assistance,”
and he “successfully met previous deadlines for direct appeals
and for a PCRA petition”); Santana v. Thomas, No. 13-5407, 2014
WL 2696502, at *5 (E.D. Pa. June 13, 2014) (denying habeas
relief where petitioner did not “discuss any efforts he made to
request AEDPA information or research materials written in
Spanish” and did not indicate how prison officials or anyone
else “thwarted his efforts to timely file” his habeas petition);
Mohammed v. Gavin, No. 13-2669, 2013 WL 6485904, at *5 (E.D. Pa.
Dec. 10, 2013) (denying habeas relief where the state court
record did not indicate that “[p]etitioner ever required or even
requested the aid of an interpreter or translator during his
interactions with the police or the state courts,” and pdid not
“discuss any efforts he made to request AEDPA information or
research materials written in his native language”); CruzHernandez v. Thomas, No. 11-2978, 2012 WL 2889664, at *7 (E.D.
Pa. July 11, 2012) (denying habeas relief where petitioner did
not allege “that he requested and was denied access to
translation or legal assistance” or that “his prison does not
provide Spanish materials,” and his “ability to write letters
and file legal documents, even if by proxy, in English,
foreclose[d] the argument that the language barrier, in
isolation, prevented his filing in a timely manner”).
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in Spanish or translation assistance.” 654 F.3d at 401. Here, in
contrast, Petitioner’s claims that he was denied access to legal
materials in Spanish, together with a lack of clarity around the
duration of Marcos’s translation assistance, merely establish
that Petitioner has alleged some denial of assistance. An
evidentiary hearing could be appropriate in order to determine
whether Petitioner truly was denied the assistance to which he
was entitled, rising to the level of “extraordinary
circumstances.”
2.

Reasonable Diligence

However, because an equitable tolling inquiry has two
prongs – extraordinary circumstances and reasonable diligence –
and both must be satisfied, even if Petitioner has alleged
enough to warrant an evidentiary hearing on the extraordinary
circumstances prong, he must also show that he was reasonably
diligent in bringing his claims. Without such a showing, he
would be unable to prove equitable tolling, and therefore an
evidentiary hearing on the other prong would ultimately be
fruitless.
Judge Sitarski concluded – without objection from
Petitioner – that Petitioner was not reasonably diligent in
pursuing his rights:

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Petitioner’s PCRA appeal was denied by the Superior
Court on September 23, 2011. On []December 23, 2011,
Petitioner filed a “Petition for Allowance of Appeal
nunc pro tunc,” in which he recognized that he had
failed to file a timely petition, and explained the
reasons for said failure. (Resp. Ex. I.) Clearly,
Petitioner was aware at that time that there were
issues surrounding the timeliness of his state appeal
to the Pennsylvania Supreme Court. While this Court
recognizes that Petitioner was attempting to regain his
ability to petition for allowance of appeal, the
Supreme Court has made clear that a habeas petitioner
who is reasonably confused about whether a state filing
will be timely should file a protective habeas petition
in federal court and ask the court to stay and [hold in
abeyance] the federal habeas proceedings until state
proceedings are exhausted. See Heleva v. Brooks, 581
F.3d 187, 190-92 (3d Cir. 2009).
Given that Petitioner decided to wait almost seven
months
to
file
the
instant
petition
after
he
demonstrated his awareness of the timeliness issues
surrounding his state proceedings, this Court cannot
conclude that he pursued his federal rights diligently.
See Ortega v. Vaughn, No. 03-3693, 2004 U.S. Dist.
LEXIS 32029, at *14 (E.D. Pa. July 2, 2004) (decision
to file a second untimely PCRA instead of a timely
federal habeas petition did not constitute reasonable
diligence).
R&R 16. This Court agrees, and adds that Petitioner has failed
to allege facts that would demonstrate reasonable diligence.
In Pabon, for example, the Third Circuit found that
the petitioner had been reasonably diligent because he had
submitted at least ten separate instances, both before and after
his AEDPA deadline, where he sought assistance: he wrote several
letters to his PCRA attorney, submitted numerous requests for
materials or assistance within the prison system, requested
assistance from the law library paralegal on several occasions,
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filed an “Official Inmate Grievance” detailing his challenges
with English and requesting assistance, sought help from another
attorney, and requested an Inmate Legal Reference Aide. 654 F.3d
at 402.
In contrast, Petitioner’s own Objection suggests that
he was insufficiently diligent in pursuing his claims – and,
moreover, that when he made requests for assistance, they were
granted, at least to some extent. He says that between February
and March of 2007, he “was seeking help” from the institutional
law library. Objection 3. And though he was not given a legal
aide or paralegal, as he wanted, he was given a translator named
Marcos, who helped him throughout his state court proceedings.
Id. at 4. Petitioner seems to believe, though, that because he
was eligible for the prison’s “Rule 007” legal assistance which is available to uneducated inmates or inmates with
language difficulties - and got translation assistance alone, he
was denied assistance to which he was entitled. But he does not
allege that he applied for such assistance and it was denied. In
fact, he did apply for Rule 007 assistance in May 2014 – well
after he filed the Habeas Petition - and that request was
granted. ECF No. 13. He does not explain what prevented him from
making such a request sooner.
Furthermore, though Petitioner explains in detail the
assistance that he got from several inmates while appealing in
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state courts, his narrative essentially stops at the end of his
state court proceedings. At that time, Petitioner says, the
inmate who assisted him with portions of his appeal notified him
that the inmate would need more money to file Petitioner’s
Habeas Petition. Petitioner elected to “seek help elsewhere,”
but does not say if or how he did so – only that he filed a
notice of appeal in federal court, with the help of an unnamed
inmate, and that he eventually filed his Habeas Petition. Id. at
6. He does not say whether he sought help for that filing, or
whether he made any additional requests to the prison during
this time. Clearly, whether or not Petitioner was aware of his
AEDPA deadline, he knew that he needed to file a habeas
petition, and he has not shown that he was reasonably diligent
in doing so.
Therefore, because Petitioner has not shown enough to
satisfy the reasonable diligence prong of the equitable tolling
test, his claims are not subject to equitable tolling.

IV.

CERTIFICATE OF APPEALABILITY
A petitioner seeking a certificate of appealability

must demonstrate “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
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constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The
Court will not issue a certificate of appealability because
Petitioner has not made a substantial showing of the denial of
his constitutional rights. See Slack v. McDaniel, 529 U.S. 473,
483-84 (2000).

V.

CONCLUSION
For the foregoing reasons, the Court finds that

although Petitioner’s allegations may rise to the level of
extraordinary circumstances, he was not reasonably diligent in
bringing his claims. Therefore, his Habeas Petition is not
subject to equitable tolling and is barred as untimely. No
evidentiary hearing is warranted, and the Court will not issue a
certificate of appealability. An appropriate order follows.

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