United States District Court, D. Arizona
J. MarKovich, United States Magistrate Judge
Luis Enrique Ortega filed a pro se Petition for a Writ of
Habeas Corpus ("PWHC") pursuant to 28 U.S.C. §
2254 on November 29, 2013.(Doc. 1). Petitioner raises four grounds
for relief: (1) double jeopardy; (2) ineffective assistance
of trial counsel; (3) ineffective assistance of Rule 32
counsel; and (4) due process and equal protection violations.
Respondents filed an Answer contending that the PWHC is
untimely, and further that all of Petitioner's claims are
procedurally defaulted or otherwise not cognizable on habeas
review. The Court concludes that Petitioner's PWHC is
untimely, and that Petitioner has not shown that he is
entitled to equitable tolling. Accordingly, the petition will
FACTUAL AND PROCEDURAL BACKGROUND
Trial, Sentencing, and Appeal
November 5, 2007, a Pima County Superior Court jury found
Petitioner guilty of two counts of sexual abuse of a minor
under 15, two counts of molestation of a child, two counts of
sexual conduct with a minor under 15, and two counts of
threatening or intimidating. (Doc. 9 Ex. C). Petitioner was
sentenced to a combination of concurrent and consecutive
presumptive prison terms for a total of 57 years. (Doc. 9 Ex.
Arizona Court of Appeals ("COA") summarized the
facts of the case as follows:
On August 20, 2006, thirteen-year old C.Q. was visiting her
mother in Tucson. That morning she was sleeping on a couch,
when she was awakened by Ortega touching her arms, buttocks,
and legs and trying to turn her over. She asked Ortega what
he was doing, and although he stopped touching her, he did
not answer. A few days later, on August 25, while C.Q. was
sleeping, Ortega turned her "face up" and began
touching her breasts and vagina over her clothes. Afterwards,
Ortega told her not to tell anyone what happened. C.Q.
returned home to Mexico the following day.
C.Q. next visited her mother in December 2006. On the 22nd or
23rd, Ortega took C.Q. to an abandoned trailer where he
forcibly removed her clothes, touched her breasts, back, and
legs, and had sexual intercourse with her. She did not tell
her mother what had happened because Ortega had told both her
and her brother F.Q. that he would either kill their mother
or hurt them if they said anything.
On subsequent visits in February and March or April of 2007,
Ortega engaged in similar acts with C.Q. and each time he
threatened to harm her mother if C.Q. told her what he had
done. On April 9, C.Q.'s mother was lying on the couch
when she saw Ortega touch C.Q.'s buttocks over her
pajamas. Shortly thereafter, she heard him walk into
C.Q.'s bedroom. She screamed at him, and the two argued
about what she had seen. When the mother called the police,
Ortega put his clothes in his car and left the house.
(Doc. 9 Ex. J).
his conviction, Petitioner sought review in the Arizona COA.
Appointed counsel filed an opening brief raising two issues
on appeal: (1) multiplicitous indictment/double jeopardy,
arguing that counts three and four are lesser included
offenses of count five, and (2) that the state exerted
improper influence over F.Q.'s testimony, making his
testimony unreliable. (Doc. 9 Ex. E). Petitioner later
withdrew his argument that count three was a lesser included
offense of count five, but continued to argue that counts
four and five were multiplicitous. (Doc. 9 Exs. G, H). On
October 14, 2008, the COA issued its decision vacating
Petitioner's conviction and sentence on count four of the
indictment, and affirming Petitioner's conviction and
sentence on the remaining counts. (Doc. 9 Ex. J).
First Petition for Post-Conviction Relief
8, 2009, Petitioner initiated proceedings in Pima County
Superior Court for post-conviction relief ("PCR").
(Doc. 9 Ex. M). Appointed counsel filed the Rule 32 Petition
on September 24, 2009, raising two claims of ineffective
assistance of trial counsel. (Doc. 9 Ex. O). Petitioner
alleged that trial counsel was ineffective for failing to
interview the state's expert witness and was further
ineffective for failing to conduct any pretrial interviews.
trial court denied PCR on December 7, 2009. (Doc. 9 Ex. R).
Petitioner filed a petition for review with the Arizona COA,
and on April 27, 2010 the COA issued its decision granting
review and denying relief. (Doc. 9 Ex. S). Petitioner did not
file a petition for review in the Arizona Supreme Court.
(Doc. 9 Ex. T).
Second Petition for Post-Conviction Relief
August 20, 2010, Petitioner filed a second notice of PCR in
Pima County Superior Court. (Doc. 9 Ex. U). Petitioner's
notice stated that he was alleging a claim pursuant to Ariz.
R. Crim. P. 32.1 (d), (e), (f), (g) or (h), specifically:
newly discovered material facts, that his failure to timely
file a notice of PCR was not his fault, a significant change
in the law, and actual innocence. Id. In support of
his claim, Petitioner stated that the trial court lacked
subject matter jurisdiction to impose his sentence, that
facts existed that established by clear and convincing
evidence that he was actually innocent, and that he was also
raising a claim of fundamental miscarriage of justice.
counsel filed a Rule 32 Petition on January 4,
2012. (Doc. 9 Ex. V). Petitioner cited Ariz. R.
Crim. P. 32.1(h) and argued that claims brought in successive
PCR petitions are not precluded if the defendant demonstrates
by clear and convincing evidence that no reasonable juror
would have found the defendant guilty beyond a reasonable
doubt. Id. Petitioner specifically argued that his
conviction on count nine of the indictment ...