Gamboa-Molina v. Stolc

          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 ...