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Aviles v. Ryan

United States District Court, D. Arizona

August 31, 2018

Mario Aviles, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          Honorable G. Murray Snow United States District Judge

         Pending before the Court is Petitioner Mario Aviles's amended Petition for Writ of Habeas Corpus. (Doc. 15). Magistrate Judge Eileen S. Willett has issued a Report & Recommendation (R&R) in which she recommends that the Court dismiss the Amended Petition as untimely. (Doc. 38). Petitioner filed objections to the R&R. (Doc. 39). For the following reasons, the Court adopts the R&R and dismisses the motion.

         BACKGROUND

         On April 7, 2005, Petitioner was convicted of second-degree murder by a jury in the Maricopa County Superior Court.[1] (Doc. 22, Ex. R). The jury also found four aggravating circumstances: the offense involved damage to property, the offense caused emotional or financial harm to the victim's family, the Petitioner was previously convicted of a felony in the prior ten years, and the Petitioner had assaulted the victim two days before the murder. Id. Petitioner was sentenced to a term of twenty-two years of imprisonment. Id. at Ex. S.

         Petitioner filed a direct appeal to the Arizona Court of Appeals on January 11, 2006.[2] Id. at Ex. T. The Court of Appeals affirmed the conviction on May 23, 2006. Id. at Ex. A. The Arizona Supreme Court denied the petition for review on Octover 12, 2006. Id. Petitioner also filed a Notice of Post-Conviction Relief (“PCR”) on December 21, 2006. Id. at Ex. B. The trial court denied the PCR petition on December 17, 2007.[3] Id. at Ex. E. Petitioner did not seek review in the Court of Appeals. Petitioner filed additional PCR notices in 2010 and 2013, both of which were dismissed by the trial court. Id. at Exs. F, G, H, I. This federal habeas petition brought under 28 U.S.C. § 2254 was filed on June 10, 2016.

         DISCUSSION

         I. Legal Standard

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “imposes a one-year statute of limitation on habeas corpus petitions filed by state prisoners in federal court.” Jenkins v. Johnson, 330 F.3d 1146, 1149 (9th Cir. 2003) (citing 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to [a petition] for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”)). The limitation period generally begins to run when the state conviction becomes 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); see White v. Klitzkie, 281 F.3d 920, 923 (9th Cir. 2002) (“Under the AEDPA . . . a state prisoner must file his federal habeas corpus petition within one year of the date his state conviction became final.”).

         The one-year limitation period, however, is statutorily tolled during any time in which a “properly filed” state petition for post-conviction relief is “pending” before the state court. 28 U.S.C. § 2244(d)(2); see Jenkins, 330 F.3d at 1149 (citing Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir. 1999)); Corjasso v. Ayers, 278 F.3d 874, 879 (9th Cir. 2002) (“[B]y its plain terms § 2244(d)(2) requires tolling during the pendency of a properly-filed state petition.”). The “circumstances under which a state petition will be deemed ‘pending' for purposes of . . . §2244(d)(2) is a federal question.” Welch v. Carey, 350 F.3d 1079, 1080 (9th Cir. 2003). In Carey v. Saffold, the United States Supreme Court looked to the ordinary meaning of the word “pending” and stated that a petition “is pending as long as the ordinary state collateral review process is ‘in continuance'--i.e., ‘until the completion of' that process. In other words, until the application has achieved final resolution through the State's post-conviction procedures, by definition it remains ‘pending.'” 536 U.S. 214, 219-20 (2002).

         Equitable tolling of AEDPA's limitation period, however, is not available in most cases. See Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (overruled in part on other grounds). To justify equitable tolling, a petitioner must show that “extraordinary circumstances beyond his control made it impossible to file a petition on time and the extraordinary circumstances were the cause of his untimeliness.” United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004) (citing Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003)); see Calderon, 128 F.3d at 1289; Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). The Court must “take seriously Congress's desire to accelerate the federal habeas process” and may equitably toll the AEDPA's limitation period only “when this high hurdle is surmounted.” Calderon, 128 F.3d at 1289.

         II. Analysis

         The Magistrate Judge determined that Petitioner's habeas petition was untimely filed. After the Arizona Supreme Court denied review on October 12, 2006, Petitioner had ninety days to seek review with the United States Supreme Court. Petitioner did not file for such review. Thus, Petitioner's convictions became final on January 10, 2007. Because Petitioner had filed his Notice of PCR on December 21, 2006, before his convictions became final, the limitations period was automatically tolled on January 10, 2007. The trial court's order denying the PCR petition was filed on December 19, 2007. As the statute of limitations was automatically tolled, no time had run on the statute of limitations. Petitioner therefore had until December 19, 2008 to file his federal habeas petition. Petitioner did not file his habeas petition until June 10, 2016, significantly past AEDPA's limitations period. The Magistrate Judge found that equitable tolling did not apply.

         Petitioner raises four objections to the R&R: (1) the prison's law library is insufficient and does not have information about AEDPA in Spanish; (2) the Petitioner is entirely reliant on attorneys or other persons trained in the law; (3) Petitioner was not provided adequate assistance in his PCR proceedings or federal habeas proceedings; and (4) these extraordinary circumstances establish cause and prejudice for failure to comply with AEDPA.

         The Petitioner's “pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling.” Martin v. Ryan, No. 17-cv-2160-PHX-DLR (DKD), Doc. 16 at *7 (D. Ariz. filed April 17, 2018) (citing Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)). The Ninth Circuit has held that the “combination of (1) a prison law library's lack of Spanish-language legal materials, and (2) a petitioner's inability to obtain translation assistance before the one-year deadline, could constitute extraordinary circumstances.” Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2006). Thus, the Ninth Circuit “rejected a per se rule that a petitioner's language limitations could justify equitable tolling, but [ ] recognized that equitable tolling may be justified if language barriers actually prevent timely filing.” Id. Therefore, “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 ...


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