United States District Court, D. Arizona
G. Campbell, United States District Judge.
2002, a state court jury found Petitioner guilty on multiple
counts of sexual activity with minors under the age of 14. He
presently is confined in Arizona state prison serving a
174-year sentence. On November 28, 2016, he filed a pro se
petition for writ of habeas corpus alleging four grounds for
relief: prosecutorial misconduct, ineffective assistance of
counsel, racial profiling, and due process and equal
protection violations. Doc. 1.
Judge John Z. Boyle has issued a Report and Recommendation
(R&R) that the petition be denied as untimely. Doc. 16.
Petitioner has filed an objection to the R&R, to which
the State has responded. Docs. 17, 18. For reasons stated
below, the Court will overrule the objection and accept Judge
Statute of Limitations.
for habeas corpus are governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §
2241 et seq. The AEDPA establishes a one-year statute of
limitations for habeas petitions filed by state prisoners.
§ 2244(d)(1). The limitation period generally begins to
run when the state conviction becomes final by the expiration
or conclusion of direct review. § 2244(d)(1)(A).
Statutory tolling of the limitation period is available for
the time during which a properly filed application for
post-conviction relief is pending. § 2244(d)(2). For
equitable tolling to apply, the petitioner “must show
that (1) some ‘extraordinary circumstance'
prevented him from filing on time, and (2) he has diligently
pursued his rights.” Luna v. Kernan, 784 F.3d
640, 646 (9th Cir. 2015) (citing Holland v. Florida,
560 U.S. 631, 649 (2010)). In addition, an equitable
exception to the limitation period applies if the petitioner
makes “a credible showing of actual innocence.”
McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013).
The R&R and Petitioner's Objection.
Boyle found that the AEDPA's one-year limitation period
began to run on June 15, 2005, after conclusion of
Petitioner's post-conviction relief proceedings. Doc. 16
at 6. Judge Boyle further found that Petitioner's habeas
petition is time barred because it was filed more than ten
years late, Petitioner is not entitled to equitable tolling
because he has shown no extraordinary circumstances, and he
has presented no evidence of actual innocence. Id.
has no objection to the R&R's background section or
Judge Boyle's finding that the limitations period began
to run on June 15, 2005. Doc. 17 at 1-2. Petitioner objects
only to Judge Boyle's finding that equitable tolling is
not warranted. Id. at 2. The Court will review this
objection de novo, and adopt without further discussion the
portions of the R&R to which Petitioner does not object.
See Fed. R. Civ. P. 72(b); 28 U.S.C. §
636(b)(1); United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003).
Boyle rejected Petitioner's assertion that he is entitled
to equitable tolling due to his limited ability to speak and
understand English and the lack of access to legal materials
in Spanish. Doc. 16 at 7-9. Judge Boyle found that Petitioner
failed to demonstrate diligence on his part and that his
difficulties with the English language do not explain why the
present petition was filed ten years late. Id. at 8.
Petitioner objects to these findings for the reasons stated
in his reply brief. Doc. 17 at 2. But as Respondents
correctly note (Doc. 18 at 2), those arguments were fully
addressed and rejected by Judge Boyle (Doc. 16 at 8-9).
reply brief, Petitioner cited Mendoza v. Carey, 449
F.3d 1065 (9th Cir. 2006), for the proposition that language
difficulties may warrant equitable tolling. Doc. 15 at 2. As
the R&R makes clear, however, there is no “per se
rule that a petitioner's language limitations can justify
equitable tolling.” Mendoza, 449 F.3d at 1069.
Instead, “a non-English-speaking petitioner seeking
equitable tolling must, at a minimum, demonstrate that during
the running of the AEDPA time limitation, he was unable,
despite diligent efforts, to procure either legal materials
in his own language or translation assistance from an inmate,
library personnel, or other source.” Id. at
Boyle considered Mendoza and similar cases cited by
Petitioner in his reply brief, and found that he failed to
show that he diligently sought to acquire legal materials or
assistance to file the instant petition. Doc. 16 at 8-9 &
n.4. Of particular note is the fact that Petitioner was able
to file numerous motions in state court during 2014 and 2015,
but did not file his habeas petition until late 2016.
Id. at 9. Petitioner fails to explain why Judge
Boyle's analysis is not well founded.
Circuit has made clear that “equitable tolling is
‘unavailable in most cases, ' and is appropriate
only ‘if extraordinary circumstances beyond a
prisoner's control make it impossible to file a petition
on time.'” Miranda v. Castro, 292 F.3d
1063, 1066 (9th Cir. 2002) (citations omitted; emphasis in
original). Indeed, “the threshold necessary to trigger
equitable tolling under the AEDPA is very high, lest the
exceptions swallow the rule.” Id. The Court
agrees with Judge Boyle that Petitioner has failed to meet
this very high threshold and therefore is not entitled to
equitable tolling. Doc. 16 at 9.