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Millan v. Ryan

United States District Court, D. Arizona

January 31, 2017

Alfonso Lopez Millan, Petitioner,
Charles L. Ryan, et al., Respondents.


          Honorable Steven P. Logan United States District Judge

         Petitioner Alfonso Lopez Millan has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable Deborah M. Fine, United States Magistrate Judge, has issued a Report and Recommendation (“R&R”) (Doc. 15), recommending that the petition be denied on the basis that it is time-barred, and in the alternative, on the basis that Petitioner's claims are procedurally defaulted and barred from review. Petitioner has objected to the R&R. (Doc. 19.) For the following reasons, the Court accepts and adopts the R&R, and denies the petition.

         I. Background

         Following a jury trial in the Maricopa County Superior Court, Case No. CR2007-172912-004, Petitioner was found guilty on three counts of kidnapping, one count of aggravated assault, three counts of theft by extortion, and one count of smuggling. (Doc. 11-1, Exh. A.)[1] On January 9, 2009, Petitioner was sentenced to a total aggregate term of 26 years of imprisonment. (Doc. 11-6, Exh. T.)

         On June 26, 2014, Petitioner filed the instant Petition for Writ of Habeas Corpus raising four claims for relief. (Doc. 1.) Respondents filed a limited answer, in which they argue that the petition should be dismissed as untimely, and as procedurally defaulted and barred in the alternative. (Doc. 11.)

         II. Standard of Review

         A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files a timely objection to an R&R, the district judge reviews de novo those portions of the R&R that have been “properly objected to.” Fed.R.Civ.P. 72(b). A proper objection requires specific written objections to the findings and recommendations in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial economy). Further, a party is not entitled as of right to de novo review of evidence or arguments which are raised for the first time in an objection to the R&R, and the Court's decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).

         III. Discussion

         A. Statute of Limitations

         The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a State court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244. The AEDPA imposes a 1-year statute of limitations in which “a person in custody pursuant to the judgment of a State court” can file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Having reviewed the objected to recommendations de novo, the Court finds that the Magistrate Judge correctly concluded that Petitioner's claims are time-barred.

         Petitioner does not dispute the Magistrate Judge's calculation of the limitations period, but instead objects to the finding that he is not entitled to equitable tolling. (Doc. 19 at 4.) “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing” his federal habeas petition. See Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotations omitted).

         Petitioner claims that counsel's negligence and abandonment constitutes extraordinary circumstances, in that counsel stated that “he could find no colorable claim, thereby leaving petitioner in no position to properly prepare and file his state post-conviction proceedings.” (Doc. 19 at 2.) This alleged negligent behavior however does not rise to the level of abandonment or is sufficiently egregious to qualify as an extraordinary circumstance that warrants equitable tolling. See Holland, 560 U.S. at 651- 52; Towery v. Ryan, 673 F.3d 933, 942 (9th Cir. 2012). Even if counsel failed to raise a colorable claim making his performance inadequate, counsel nonetheless did not “abandon” Petitioner; counsel reviewed the record, filed a notice of his finding of no colorable relief, and moved the court for an extension of time for Petitioner to file a pro se post-conviction relief petition. (Doc. 11-6, Exh. W.) See Holland, 560 U.S. at 659 (abandonment consists of “near-total failure to communicate with petitioner or to respond to petitioner's many inquiries and requests.”); Gibbs v. Legrand, 767 F.3d 879, 887 (9th Cir. 2014) (“even if his performance was inadequate, his conduct did not constitute abandonment of his client and did not justify the conclusion that extraordinary circumstances existed”). Petitioner does not claim that post-conviction counsel was engaged to pursue additional state post-conviction relief, was engaged to pursue federal habeas relief, or refused to pursue relief despite Petitioner's diligent and reasonable requests. Petitioner makes no claim that counsel failed to communicate with him, keep him informed of material developments in his case, affirmatively misled him, or engaged in similar egregious behavior. Cf. Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015) (counsel's misconduct was an extraordinary circumstance where counsel affirmatively mislead petitioner); Gibbs, 767 F.3d at 885 (an attorney's failure to communicate about a key development in a client's case can constitute an extraordinary circumstance).

         Petitioner does not show that the actions of post-conviction relief counsel prevented him from preparing and filing a federal habeas petition at any time nor offers any connection between counsel's performance and his own failure to file a timely federal habeas petition. Petitioner's pro se status or “lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). See also Robinson v. Kramer, 588 F.3d 1212, 1216 (9th Cir. 2009) (citing Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000)); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 2000) (“[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.”). Nor does Petitioner's alleged lack of comprehension of the English language merit equitable tolling. “Lack of English proficiency can constitute an extraordinary circumstance for equitable tolling purposes, but only when the petitioner is unable to procure legal materials in his own language or to obtain translation assistance.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014). See also Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006) (finding that lack of access to Spanish language legal materials or assistance could entitle habeas petitioner to equitable tolling). Instead, Petitioner's state court filings during the limitations periods (see e.g, Doc. 11-6, Exhs. CC, EE) belies the claim that language, or any other extraordinary circumstance, caused his federal habeas petition to be untimely filed.[2]

         In short, Petitioner's complaints do not show how he was prevented from filing a federal habeas petition while the statute of limitations was running. Therefore, Petitioner is not ...

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