United States District Court, D. Arizona
THE
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge.
Petitioner
Armando Gamboa-Molina, has filed a pro se Amended Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(doc. 17) and a “Petition for Affirmative
Injunction” (doc. 8). The Court will address both
below.
I.
Summary of Conclusion.
Petitioner's
trial convictions became final on May 7, 2010. This habeas
petition was due by May 7, 2011 but was not filed until
January 24, 2019. Petitioner presents no grounds for
statutory tolling. Petitioner, with the assistance of
counsel, filed several post-conviction review pleadings in
the state courts between 2015 and 2017 but never filed a
protective habeas petition in this Court. Because there are
no grounds to warrant equitable tolling, the Court concludes
the Petition is untimely. Therefore, the Court will recommend
the Petition be denied and dismissed with prejudice. The
Court will also recommend Petitioner's request for a
preliminary injunction hearing be denied.
II.
Background.
A.
Procedural Background.
On
September 1, 2009, the Arizona Court of Appeals summarized
Gamboa-Molina's charges and the factual history
underlying his convictions and sentences, as well as the
proceedings before and during trial as follows:
The state charged defendant with numerous felony offenses as
the result of an investigation by the U.S. Drug Enforcement
Administration (DEA) and the Conspiracy Squad of the Phoenix
Police Department Drug Enforcement Bureau. The initial
investigation began with two individuals, Adrian
Barraza-Mendoza and Jesus Antonio Velarde. In March 2006,
Phoenix police and the DEA applied for and were granted
authorization by Maricopa County Superior Court for CWT-269
to tap the telephone of Barraza-Mendoza, whom they believed
dealt primarily in cocaine and large quantities of
methamphetamines on occasion. The investigation eventually
revealed that defendant was a part of the drug trafficking
operation.
When defendant was taken into custody, he was in possession
of: approximately $270, 000 in U.S. currency; more than 80
pounds of cocaine, 31 pounds of it in kilos, as well as 150
grams of crack cocaine; various weapons and ammunition; a
cell phone that was intercepted as part of the wiretap
investigation; and drug paraphernalia such as digital scales,
shrink wrap, cutting agents, and hundreds of ziplock bags.
Before trial, the state moved to dismiss three of the counts
against defendant without prejudice. The motion was granted
and the original indictment was amended and renumbered as
follows: one count of conspiracy, a Class 2 felony (Count 1);
one count of illegally conducting an enterprise, a Class 3
felony (Count 2); five counts of use of a wire communication
(telephone) in a drug related transaction, each a Class 4
felony (Counts 3, 10, 13, 14, 15); four counts of money
laundering, each a Class 3 felony (Counts 4, 12, 27, 30); one
count of transportation for sale, sale or transfer of a
dangerous drug (methamphetamine) over the threshold amount, a
Class 2 felony (Count 11); one count of possession for sale
of a dangerous drug (methamphetamine) over the threshold
amount, a Class 2 felony (Count 18); four counts of
possession for sale of a narcotic drug (cocaine) over the
threshold amount, each a Class 2 felony (Counts 22, 24, 25,
29); one count of possession for sale of a narcotic drug
(crack cocaine) over the threshold amount, a Class 2 felony
(Count 23); two counts of misconduct involving a weapon, each
a Class 4 felony (Counts 26, 31); and two counts of
possession of drug paraphernalia, each a Class 6 felony
(Counts 28 and 34).
Prior to trial, defendant moved to suppress all of the
evidence obtained against him via the wiretap and requested a
Franks hearing. In response, the state argued that
the wiretap was necessary, the evidence obtained was
admissible and it moved to vacate the Franks hearing
arguing that defendant failed to meet the requisite burden to
establish a Franks hearing was needed. After
considering all of the pleadings, the trial court vacated the
Franks hearing. It subsequently heard oral argument
on defendant's motion to suppress and denied that motion
as well.
Defendant waived his right to a jury trial, preserving his
right to appeal on the suppression issues, and the case was
submitted to a bench trial based on a stipulated factual
summary and accompanying exhibits. Defendant was convicted of
all of the offenses charged in the amended indictment.
(Doc. 11-1, Ex. C, at 16.)
On
March 4, 2008, Gamboa-Molina was sentenced to concurrent
presumptive terms of 10 flat years of imprisonment for Count
11; five years of imprisonment for Counts 1, 22, 23, 24, 25,
and 29; 3.5 years of imprisonment for Counts 2, 4, 12, 27,
and 30; 2.5 years of imprisonment for Counts 3, 10, 13, 14,
15, 26, and 31; one year of imprisonment for Counts 28 and
32; and a presumptive term of 10 flat years of imprisonment
for Count 18, to run consecutively to Counts 1-4, 10-15,
22-32, with credit for 641 days of presentence incarceration.
(Id. at 18.) Also, on March 4, 2008, Gamboa-Molina
received, and acknowledged receipt of, his notice of his
rights of review after conviction. (Doc. 11-1, Ex. B, at 13.)
B.
Direct Appeal.
On
March 24, 2008, Gamboa-Molina filed a timely notice of
appeal. (Doc. 11-1, Ex. D, at 31.) On appeal, Gamboa-Molina
raised two issues: whether the trial court erred by not
holding a Franks hearing and whether the trial court
abused its discretion in denying his motion to suppress the
evidence obtained from wiretap surveillance. (Doc. 11-1, Ex.
C, at 17.) On September 1, 2009, the Arizona Court of Appeals
issued a memorandum decision finding no error or abuse of
discretion and affirmed Gamboa-Molina's convictions and
sentences. (Id. at 29.) Gamboa-Molina petitioned for
review, and on March 2, 2010, the Arizona Supreme Court
denied the petition. (Doc. 11-1, Ex. E, at 37.) On April 7,
2010, the Arizona Court of Appeals issued a mandate in
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