United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge
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.
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.) On January 9, 2009, Petitioner was
sentenced to a total aggregate term of 26 years of
imprisonment. (Doc. 11-6, Exh. T.)
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.
Standard of Review
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).
Statute of Limitations
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.
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).
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
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.
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