United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
before this Court is Petitioner's Petition for Writ of
Habeas Corpus (“Petition”). (Doc. 1). The
Magistrate Judge issued a Report and Recommendation
(“R&R”) recommending that the Petition be
denied and dismissed because it is barred by the
AntiTerrorism and Effective Death Penalty Act's
(“AEDPA”) statute of limitations. (Doc. 15). The
R&R further recommended that a Certificate of
Appealability be denied. (Id. at 8).
REVIEW OF AN R&R
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (emphasis in original). District courts are
not required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985); see
also 28 U.S.C. § 636(b)(1) (“the court shall
make a de novo determination of those portions of the [report
and recommendation] to which objection is made”). In
this case, Petitioner filed objections to the R&R, (Doc.
18), and the Court will review those objections de novo.
FACTUAL AND PROCEDURAL BACKGROUND
2010, the Superior Court of Arizona in and for Mohave County
entered judgment convicting Petitioner of first degree murder
and misconduct involving weapons. (Doc. 1 at 9). The trial
court imposed a natural life sentence without possibility of
parole for the first degree murder offense, followed by an
aggravated twelve-year sentence for the misconduct involving
weapons offense. (Id.). The Arizona Court of Appeals
affirmed Petitioner's convictions and ordered the
twelve-year sentence to run concurrently with the natural
life sentence. (Id. at 22). Thereafter, Petitioner
sought post-conviction relief, which was denied on April 22,
2015. (Id. at 25-26). On June 13, 2018, Petitioner
initiated this federal habeas proceeding. (Doc. 1). The Court
required Respondents to answer the Petition. (Doc. 5).
Respondents filed their Answer on October 16, 2018, claiming
the Petition is barred by the AEDPA's statute of
limitations. (Doc. 13 at 5-6). Petitioner filed a Reply on
November 15, 2018. (Doc. 14). A Magistrate Judge issued a
R&R to the Court, (Doc. 15), and Petitioner filed
objections, (Doc. 18).
R&R recommends that the Petition be denied as barred by
the AEDPA's statute of limitations. (Doc. 15 at 2-7).
explained by the Magistrate Judge, the AEDPA, 28 U.S.C.
§ 2244(d), provides a one-year statute of limitations
for state prisoners to file a petition for writ of habeas
corpus in federal court. (Id. at 2). Here the
parties do not dispute that the statute of limitations for
Petitioner's claims began running in April 2015, when the
petition for post-conviction relief was denied by the Arizona
Court of Appeals. (Doc. 1 at 27; Doc. 13 at 4-5). Petitioner
concedes that he “does not have adequate statutory
grounds for tolling his statute of limitations, ” (Doc.
1 at 27), because the Petition was filed approximately three
years after the commencement of the statute of limitations.
(Doc. 1). The issue before the Court is whether equitable
tolling or the miscarriage of justice exception should be
applied to prevent the Petition from being procedurally
barred from federal habeas review. (See Doc. 18 at
Magistrate Judge noted, AEDPA's statute of limitations is
subject to equitable tolling. (Doc. 15 at 3 (citing
Holland v. Florida, 560 U.S. 631, 645 (2010))). The
Magistrate Judge explained that “a petitioner seeking
equitable tolling must establish that: (i) he or she has been
pursuing his or her rights diligently and (ii) that some
extraordinary circumstances stood in his or her way.”
(Id. (citing Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005))).
Magistrate Judge rejected Petitioner's argument for
equitable tolling based on his pro se status, stating that
“a petitioner's pro se status, on its own, is not
enough to warrant equitable tolling.” (Id. at
4 (citing Johnson v. United States, 544 U.S. 295,
311 (2005))). The Magistrate Judge also rejected
Petitioner's argument based on his ignorance of the
statute of limitations and lack of legal sophistication in
general because “alleged ignorance of the statute of
limitations or ‘lack of legal sophistication is not, by
itself, an extraordinary circumstance warranting equitable
tolling.'” (Id. (quoting Rasberry v.
Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006))). The
Magistrate Judge found no indication that the
“circumstances of Petitioner's incarceration made
it ‘impossible' for Petitioner to timely file a
habeas petition.” (Id. (citing Chaffer v.
Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010); Wilson
v. Bennett, 188 F.Supp.2d 347, 353-54 (S.D.N.Y. 2002))).
The Magistrate Judge concluded that Petitioner is not
entitled to equitable tolling because he “has failed to
show the existence of ‘extraordinary circumstances'
that were the proximate cause of the untimely filing of this
proceeding.” (Id. (citing Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003))).
Magistrate Judge also noted that the Supreme Court has held
there to be a “miscarriage of justice exception,
” also called the “actual innocence gateway,
” to permit review of federal habeas petitions, which
extends to petitions that are time barred under the AEDPA.
(Id. at 5 (citing McQuiggin v. Perkins, 569
U.S. 383, 391-398 (2013); Schlup v. Delo, 513 U.S.
298, 327 (1995))). The Magistrate Judge recognized that
“a petitioner seeking federal habeas review under the
miscarriage of justice exception must establish his or her
factual innocence and not mere legal insufficiency.”
(Id. (citing Bousley v. United States, 523
U.S. 614, 623 (1998))). Further, the Magistrate Judge
acknowledged that “‘such a claim requires
petitioner to support his allegations of constitutional error
with new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts or
critical physical evidence.'” (Id.
(quoting Schlup, 513 U.S. at 324))).
Magistrate Judge rejected Petitioner's argument for
actual innocence based on the new evidence of an affidavit
from Santiago Sanchez (“Sanchez”) because, as a
post-conviction statement by a co-defendant, it should be
treated with skepticism and does not constitute reliable
evidence for the purpose of establishing actual innocence.
(Id. at 6-7 (citing Allen v. Yukins, 366
F.3d 396, 405 (6th Cir. 2004); Herrera v. Collins,
506 U.S. 390, 423 (1993))). The Magistrate Judge also
rejected Petitioner's argument for actual innocence based
on the new evidence of an affidavit from a private
investigator because it “does not materially bolster
the credibility of Sanchez' affidavit” and
therefore is “not the type of evidence that meets the
Schlup requirements of reliable new evidence.”
(Id. at 7). The Magistrate Judge concluded that
“[b]ecause Petitioner has failed to satisfy his burden
of producing ‘new reliable evidence' of his actual
innocence . . . Petitioner cannot pass through the [actual
innocence] gateway to excuse the untimeliness of this federal
habeas proceeding.” (Id. at 7 (citing
Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir.
on Petitioner's failure to file his habeas action within
the statute of limitations and the finding that Petitioner
failed to state a sufficient basis for equitable tolling, or
actual innocence, the Magistrate Judge recommends that ...