United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
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.
April 7, 2005, Petitioner was convicted of second-degree
murder by a jury in the Maricopa County Superior
Court. (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.
filed a direct appeal to the Arizona Court of Appeals on
January 11, 2006. 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. 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,
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.”).
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).
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.
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.
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.
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 ...