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Hernandez-Barraza v. Ryan

United States District Court, D. Arizona

March 12, 2018

Jose Israel Hernandez-Barraza, Petitioner,
v.
Charles Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

         Pending before the Court is Jose Israel Hernandez-Barraza's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). Petitioner is serving a twenty-seven year prison term after pleading guilty in the Superior Court of Arizona to one count of sexual conduct with a minor under age 15 and two counts of attempted molestation of a child. (Bates No. 28-30, 68-69).[1] The undersigned has reviewed the parties' briefing (Docs. 1, 9, 10). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition as untimely.

         I. LEGAL STANDARDS

         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, [2] a state prisoner must file his or her federal habeas petition within one year of the latest of:

A. The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
B. The date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the petitioner was prevented from filing by the State action;
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1); see also See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the “time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).

         AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) (“Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases.”). Yet equitable tolling is applicable only “if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.

         II. DISCUSSION

         A. This Proceeding is Untimely By A Number of Years

         In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's judgment became “final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). For purposes of the limitations period, “[f]inal judgment in a criminal case means sentence. The sentence is the judgment.” Burton v. Stewart, 549 U.S 147, 156 (2007) (internal quotation marks and citation omitted); see also Ferreira v. Secretary, Dept. of Corrections,494 F.3d 1286 (11th Cir. 2007) (holding that for purposes ...


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