United States District Court, D. Arizona
David G. Campbell United States District Judge
On April 15, 2015, Petitioner Armin Calbo Velasco filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The Court referred the petition to Magistrate Judge John Z. Boyle. Doc. 2. On February 9, 2016, Judge Boyle issued a report and recommendation (“R&R”) that the Court dismiss the petition as untimely. Doc. 8. Petitioner filed a pro se objection to the R&R. Doc. 9. For the reasons set forth below, the Court will overrule his objection and adopt Judge Boyle’s recommendation that the petition be dismissed.
A. Velasco’s Conviction.
The Arizona Court of Appeals provided the following summary of the crime underlying Velasco’s conviction:
Late in the evening of August 2, 2003, [the perpetrator] went to the victim’s home and knocked loudly on the door. The knocking woke the victim’s ten-year-old brother who had been sleeping on the couch. The victim’s brother opened the door slightly. [The perpetrator] then pushed open the door and grabbed the victim’s brother by the shirt and threw him behind the couch. Because he had a sore throat, the victim’s brother did not yell out.
[The perpetrator] then went into the bedroom where the eight-year-old victim and her sister slept. After unzipping his pants, [the perpetrator] went to the victim’s bed, moved the victim so that she laid across the width of the bed, and removed the victim’s pants and underwear. [The perpetrator] then sexually touched and molested the victim. [The perpetrator] further proceeded to engage in sexual conduct with the victim. During this incident, the victim tried to get up, but [the perpetrator] was holding her legs down with his legs. [The perpetrator] signaled to the victim that she should be quiet and not tell anyone. The victim’s sister, who was sleeping in the bed next to the victim, witnessed [the perpetrator’s] conduct with the victim. Both the victim and her sister saw and recognized [the perpetrator] at the time because he was their aunt’s boyfriend. As [the perpetrator] was leaving the house, the victim’s brother also recognized him.
Doc. 7-1 at 83-84.
At trial, the victim’s sister identified Velasco as the perpetrator. Id. at 85. A police officer also testified. According to the officer, Velasco admitted to consuming eight beers, getting into a fight with his girlfriend, and going to the victim’s house on the day in question. Id. He denied engaging in any inappropriate touching of the victim, but stated that he “didn’t remember” what happened while he was at the victim’s house. Id. Based on this evidence, Velasco was convicted of child molestation, sexual conduct with a minor under the age of twelve, kidnapping, and burglary. Id. Velasco was sentenced to life without possibility of parole for 69 years. Id.
Petitioner’s conviction and sentence were affirmed by the Arizona Court of Appeals. Doc. 7-1 at 83. Petitioner’s appellate counsel then informed him that there was no reasonable probability that the Arizona Supreme Court would review his case, and he declined to seek further review. Doc. 1 at 21.
B. Statute of Limitations.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations for habeas petitions filed by state prisoners. 28 U.S.C. § 2244(d)(1). As relevant here, the limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). The limitations period is subject to both statutory tolling and equitable tolling. Statutory tolling is available for “[t]he 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.” § 2244(d)(2). Equitable tolling is available where “extraordinary circumstances beyond a prisoner’s control ma[d]e it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006). In addition, a petitioner is entitled to an equitable exception to the AEDPA’s statute of limitations if he makes “a credible showing of actual innocence.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013).
C. The R&R.
Judge Boyle determined that (1) the AEDPA limitations period began to run on September 15, 2005, the last day on which Velasco could have petitioned the Arizona Supreme Court for direct review of his conviction; (2) the limitations period was subject to statutory tolling from October 28, 2005 through April 26, 2006, during which Velasco’s petition for post-conviction review (“PCR”) was pending; and (3) the limitations period was not subject to any additional statutory tolling because Velasco did not have a “properly filed” PCR petition pending in state court at any time after April 26, 2006. Doc. 8 at 4. Next, Judge Boyle determined that Velasco was not entitled to equitable tolling because he had not shown that extraordinary circumstances made it impossible for him to file a timely habeas petition. Id. at 7. Finally, Judge Boyle determined that Velasco was not entitled to an equitable exception to the limitations ...