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Arcineiga-Rangel v. Ryan

United States District Court, D. Arizona

May 23, 2016

Hildefonso Arcineiga-Rangel, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          David G. Campbell United States District Judge

         On October 28, 2015, Petitioner Hildefonso Arcineiga-Rangel 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 Michelle H. Burns. Doc. 5. On April 11, 2016, Judge Burns issued a report and recommendation (“R&R”) that the Court dismiss the petition as untimely. Doc. 13. Petitioner filed pro se objections to the R&R. Doc. 14. For the reasons set forth below, the Court will overrule the objections and adopt Judge Burns’s recommendation.

         I. Background.

         A. Petitioner’s Conviction.

         The Arizona Court of Appeals provided the following summary of Petitioner’s conviction:

Defendant was charged with kidnapping, a class two felony, sexual conduct with a minor, a class two felony, attempted sexual conduct, a class three felony, and molestation of a child, a class two felony. All four charges were alleged as dangerous crimes against children. At the jury trial the State presented, inter alia, testimony of victim Lucero H., and witnesses Eric R., Ruben H., and Lince T.
Lucero H., Defendant’s ten-year old daughter, testified that on the night of July 27, 2004 Defendant asked if she wished to accompany him to the store. She stated that instead of driving to the store, Defendant pulled the family van into the parking lot of an apartment complex. While parked, Defendant pulled down her pants and her underwear and put his hand on the inside of her genital area. Lucero asserted that Defendant also tried to lick her genital area and again touched the outside of her genital area. . . .
Ruben H. testified that he walked up to the van and took a look inside the passenger window using a flashlight . . . . Ruben stated that Lucero’s pants were pulled down and that Defendant was kneeling behind her with his pants partly down. . . . Lince T. testified similarly, asserting that after Ruben opened the door he saw Lucero between the front seats with Defendant behind her. Lince averred that Lucero’s pants were down.
Defendant testified in his own behalf. He asserted that Lucero had asked to drive the van that night and that he allowed her to drive a few blocks and that it was her idea to park the car at the apartment complex. He stated that they had just switched seats with Lucero so that he could drive the rest of the way to the store when Ruben and his friends approached the van. He denied touching Lucero in any sexual way.
The jury acquitted Defendant on the kidnapping charge but found him guilty of sexual conduct with a minor, attempted sexual conduct with a minor, and child molestation. The jury also found Lucero to be under the age of 12 at the time of the incident. . . . On the charge of sexual conduct with a minor, the court sentenced Defendant to a mandatory term of life imprisonment with no possibility of release until he has served 35 years . . . . As to the other two charges, the court imposed a consecutive 10-year sentence for child molestation and lifetime probation for attempted sexual conduct with a minor . . . .

Doc. 11-1 at 48-50.

         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 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 Petition ...


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