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Alvarez v. Ryan

United States District Court, Ninth Circuit

December 2, 2013

Carlos Mendez Alvarez, Petitioner,
v.
Charles L. Ryan et al., Respondents.

ORDER DISMISSING PETITION FOR HABEAS CORPUS

SHARON L. GLEASON, District Judge.

Before the Court is the Petition for Writ of Habeas Corpus ("the Petition"), filed pursuant to 28 U.S.C. § 2254, by petitioner Carlos Mendez Alvarez ("Petitioner" or "Alvarez").[1] On June 21, 2013, Respondents filed their response (a "Limited Answer").[2] Alvarez filed no reply. On August 2, 2013, Magistrate Judge James F. Metcalf issued a Report and Recommendation ("R&R"), recommending that the Petition be dismissed with prejudice and that a certificate of appealability be denied.[3] On August 15, 2013, Alvarez filed objections to the R&R.[4] For the following reasons, the Court will adopt the Magistrate Judge's R&R, dismiss the Petition with prejudice, and deny a certificate of appealability.

FACTUAL AND PROCEDURAL BACKGROUND

Alvarez was convicted on April 19, 2002 by a jury in Maricopa County Superior Court of attempted sexual conduct with a minor, kidnapping, and sexual conduct with a minor (Case No. CR-2001-010975).[5] The trial court sentenced Alvarez to consecutive sentences totaling life plus 27 years of imprisonment.[6] Alvarez appealed his conviction to the Arizona Court of Appeals, which affirmed on March 25, 2003.[7]

Alvarez previously filed three petitions for post-conviction relief in Arizona Superior Court; each was denied, the last as of May 5, 2004.[8] Alvarez filed this Petition on January 25, 2013, asserting four grounds for relief:

In Ground One, Petitioner alleges that he received ineffective assistance of counsel because he withdrew from a plea agreement based on his attorney's "persist[e]nce to go to trial" and because his attorney did not raise mitigating circumstances, object to the duplicity of the charges, or object to the sentence enhancement.
In Ground Two, Petitioner claims his Fifth, Sixth, and Fourteenth Amendment rights were violated. He asserts that he withdrew from the plea agreement and ultimately received the maximum sentence because of his attorney's "misadvice" and threat to withdraw from the case if Petitioner did not withdraw from the plea agreement. Petitioner asserts that he was "forcibly coerced by duress to withdraw his plea agreement."
In Ground Three, Petitioner contends he received ineffective assistance of appellate and post-conviction-relief counsel because they failed to communicate with Petitioner and failed to develop a claim regarding Petitioner's reason for withdrawing from the plea agreement.
In Ground Four, he asserts that his due process and equal protection rights were violated. He claims that "both appellant defense counsel rejecting the argu[]ment Petitioner presented that neither one pursue[d] to follow was compelled by jurisprudence pertaining to cause excusable procedural default. Failing to raise a claim on direct appeal and in P.C.R. proceeding, as was instructed by defendant." (citation omitted).[9]

Respondents filed a Limited Answer to the Petition in which they assert that the Petition is barred by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") one-year statute of limitations for habeas claims, that Alvarez failed to show cause for equitable tolling, that Alvarez failed to exhaust state remedies, and that his claim is procedurally defaulted.[10]

On August 2, 2013, the Magistrate Judge filed and served the R&R, recommending that the Petition be dismissed with prejudice and that a certificate of appealability be denied.[11] Specifically, the Magistrate Judge concluded that Alvarez's petition was untimely under AEDPA's one-year statute of limitations.[12] The Magistrate Judge explained that, taking into account statutory tolling for Alvarez's three state petitions, the statute of limitations ran on April 24, 2004; Alvarez did not file this Petition until January 25, 2013.[13] The Magistrate Judge also detailed why Alvarez did not qualify for equitable tolling.[14] As part of that analysis, the Magistrate Judge noted that "[t]he Ninth Circuit has concluded that the habeas statute of limitations is subject to an exception for claims of actual innocence, " but that Alvarez "makes no such claim in this proceeding."[15]

On August 15, 2013, Alvarez filed timely objections to the R&R, listing six numbered objections.[16] The first objection states, "Petitioner is actually innocent and has asserted this fact from the beginning of his incarceration."[17] Alvarez then asserts "that this case is an actual innocence case and the exception to [the] procedural bar rule should apply."[18] Objections two through six are essentially restatements of the grounds for relief that Alvarez had previously stated in the Petition.

STANDARD OF REVIEW

Under 28 U.S.C. § 636(b)(1), a court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."[19] However, a court must only "make a de novo determination of those portions of the [magistrate judge's] report or ...


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