Guerrero v. Ryan

          ORDER

          JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE

         Pending 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).

         I. REVIEW OF AN R&R

         This 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         In July 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).

         III. R&R

         The R&R recommends that the Petition be denied as barred by the AEDPA's statute of limitations. (Doc. 15 at 2-7).

         As 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 5, 8).

         As the 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))).

         The 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))).

         The 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))).

         The 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. 2012))).

         Based 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 ...