Adan Orduno v. Charles L. Ryan, et al.

• Court: District Court, D. Arizona
• Decided: June 22, 2018
• Docket: 2:17-cv-02911
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Adan Orduno, No. CV-17-2911-PHX-JAT (DKD)

10 Petitioner,

11 v. REPORT AND RECOMMENDATION

12 Charles L. Ryan, et al.,

13 Respondents. 14 15 16 TO THE HONORABLE JAMES A. TEILBORG, SENIOR U. S. DISTRICT JUDGE: 17 Adan Orduno filed a Petition for Writ of Habeas Corpus (“Petition”) on August 18 28, 2017, challenging his convictions and sentences for escape and influencing a witness. 19 His Petition alleges due process violations, ineffective assistance of appellate counsel, 20 and various errors by the Maricopa County Superior Court. Respondents argue that his 21 Petition is untimely and that he is not entitled to equitable tolling. As detailed below, the 22 Court recommends that Orduno’s Petition be denied and dismissed with prejudice. 23 BACKGROUND 24 On September 3, 2014, at the conclusion of a ten-day jury trial held in Maricopa 25 County Superior Court where Orduno represented himself, a jury found Orduno guilty of 26 one count of escape and one count of influencing a witness and found aggravating factors 27 for both counts. (Doc. 10-1, Exs. B, C) At sentencing, Orduno’s motion for a new trial 28 was denied and he received an aggravated sentence of six years’ imprisonment for the 1 escape count and a super-aggravated term of seven and one- half years for the influencing 2 a witness count. (Doc. 10-1, Ex. D) 3 On October 2, 2014, Orduno filed a pro se notice of appeal in the Arizona Court of 4 Appeals. (Doc. 10-1, Ex. E) Orduno’s court-appointed counsel argued that his rights 5 were violated because the Court had provided a security guard for a witness thereby 6 influencing the jury on the influencing a witness charge. (Doc. 10-1, Ex. G) Orduno’s 7 subsequent request to file a supplemental pro se appellate brief was denied. (Doc. 10-1, 8 Exs. H, I, J) 9 At the conclusion of briefing, the Court of Appeals affirmed Orduno’s convictions 10 and sentences on January 28, 2016, stating that “[the] Defendant has not presented 11 sufficient evidence to enable us to determine that courtroom security was noticeable to 12 the jury. On this record, we can find no error, much less fundamental error.” (Doc. 10-1, 13 Ex. B at ¶10) Orduno did not petition the Arizona Supreme Court for review and, on 14 August 25, 2016, the mandate issued. (Doc. 10-2, Ex. K, P, Q) 15 On October 6, 2016, Maricopa County Superior Court filed Orduno’s Notice of 16 Post-Conviction Relief (“Notice”). (Doc. 10-2, Ex. L) Orduno had signed the Notice on 17 October 2, 2016. (Doc. 10-2, Ex. L) On October 20, 2016, the Superior Court dismissed 18 his Notice because it was “untimely by ten days” and “facially non-meritorious.” 19 Specifically, the Superior Court found that, because the appellate court’s mandate was 20 issued on August 25, 2016, the deadline for his Notice was September 26, 2016, and thus 21 his filing on October 6, 2016, was untimely under Arizona Rule of Criminal Procedure 22 32.4(a). (Doc 10-2, Ex. M) 23 On November 9, 2016, the Arizona Court of Appeals filed Orduno’s pro se 24 petition for review which he had signed on November 2, 2016. (Doc. 10-2, Ex. N) On 25 October 19, 2017, the Court of Appeals granted review and denied relief finding that he 26 had failed to show that the Superior Court abused its discretion in denying his petition for 27 review. (Doc. 10-2, Ex. O) Orduno did not petition the Arizona Supreme Court for 28 review. (Doc. 10-2, Ex. R) 1 On August 28, 2017, Orduno filed his Petition in this Court. (Doc. 1) His Petition 2 alleges due process violations, ineffective assistance of appellate counsel, and various 3 errors of state law by the Superior Court. (Doc. 1) Respondents contend that his Petition 4 is untimely and that he is not entitled to equitable tolling. (Doc. 10) Respondents further 5 contend that most of his claims are unexhausted, procedurally barred, non-cognizable, 6 and that no claim is reviewable on the merits. (Doc. 10) As described below, the Court 7 disagrees that the Petition is untimely; however, the Court finds that Orduno is not 8 entitled to relief under the claims asserted and so any errors in calculating time frames 9 does not entitle Orduno to relief. 10 ANALYSIS 11 Orduno’s Petition Was Timely 12 A state prisoner seeking federal habeas relief from a state court conviction is 13 required to file the petition within one year of “the date on which the judgment became 14 final by the conclusion of direct review or the expiration of the time for seeking such 15 review.” 28 U.S.C. § 2244(d)(1)(A). The period of limitations is statutorily told during 16 the time in which a “properly filed application for State post-conviction or other 17 collateral review with respect to the pertinent judgment or claim is pending” in the State 18 courts. 28 U.S.C. § 2244(d)(2). 19 Under Arizona law, an “appellate court decision is not final until the mandate 20 issues” if no further review is sought. Celaya v. Stewart, 691 F.Supp.2d 1046, 1054-55 21 (D.Ariz. 2010), aff’d 497 Fed. Appx. 744, (9th Cir. 2012). Because Orduno did not file a 22 petition for review at the Arizona Supreme Court, his conviction became final on August 23 26, 2016, when the Arizona Court of Appeals issued its mandate. See also Gonzalez v. 24 Thaler, 565 U.S. 134, 137 (2012) (“for a state prisoner who does not seek review in a 25 State’s highest court, the judgment becomes ‘final’ on the date that the time for seeking 26 such review expires”). 27 Pursuant to Arizona Rule of Criminal Procedure 32.4(a)(2)(D), Orduno had to 28 initiate post-conviction proceedings “no later than 90 days after the entry of judgment 1 and sentence or no later than 30 days after the issuance of the order and mandate in the 2 direct appeal, whichever is later.” For Orduno, this clock started when the Arizona Court 3 of Appeals issued its mandate on August 25, 2016, and ended 30 days later on Saturday, 4 September 24, 2016. Under Arizona Rule of Criminal Procedure 1.3(a)(2), because the 5 time frame ended on a Saturday, it was extended to the following Monday, September 26, 6 2016. Moreover, under Rules 1.3(a)(2), (3) and (5), the last day was actually a week 7 later: Monday, October 3, 2016. 8 Orduno signed his Petition on Sunday, October 2, 2016, and it was filed on 9 October 6, 2016. The Superior Court summarily dismissed his Petition as untimely and 10 the Court of Appeals affirmed. This was incorrect. The Court will assume that Orduno 11 gave his Petition “to prison authorities on the same day he signed it.” Butler v. Long, 752 12 F.3d 1177, 1178 n.1 (9th Cir. 2014). See Houston v. Lack, 487 U.S. 266, 270-74 (1988) 13 (discussing mailbox rule in federal proceedings); State v. Rosario, 987 P.2d 226, 228 14 (Ariz. Ct. App. 1999) (applying prisoner mailbox rule to filing post-conviction relief 15 notice). Therefore, the Court assumes that Petitioner delivered his filings to prison 16 authorities for mailing on October 2, 2016, the day he signed them. 17 Accordingly, this Court concludes that the Superior Court should have accepted 18 Orduno’s Petition for Post-Conviction Relief as timely filed. Because Orduno filed his 19 Petition in this Court less than a year after the conclusion of his post-conviction relief 20 proceedings in the Arizona Court of Appeals, this Court will assume that his Petition was 21 timely filed. However, even assuming that Orduno’s Petition was timely filed and 22 contains exhausted claims, he is still not entitled to relief. 23 Orduno is Not Entitled to Relief 24 On habeas review, this Court can only grant relief if the petitioner demonstrates 25 prejudice because the adjudication of a claim either “(1) resulted in a decision that was 26 contrary to, or involved an unreasonable application of, clearly established Federal law, 27 as determined the United States Supreme Court; or (2) resulted in a decision that was 28 based on an unreasonable determination of the facts in light of the evidence presented in 1 the State court proceeding.” 28 U.S.C. § 2254(d). This is a “’highly deferential standard 2 for evaluating state-court rulings’ which demands that state-court decisions be given the 3 benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) 4 (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). 5 Due Process and Presumption of Innocence (Grounds One and Two). 6 In Ground One of the Petition, Orduno claims that “posting a bodyguard next to 7 the victim while she testified was an error which requires reversal.” (Doc. 1-9 at 48) In 8 Ground Two, Orduno claims that his rights were infringed because the Superior Court did 9 not make a record about the victim’s bodyguard. (Doc. 1-9 at 49) 10 When addressing these arguments, the Arizona Court of Appeals noted that “the 11 Defendant has not presented sufficient evidence to enable us to determine that courtroom 12 security was noticeable to the jury.” (Doc. 10-1, Ex. B at 4) In his Petition, Orduno has 13 not provided any additional evidence to support the notion that he was prejudiced by the 14 presence of security. Aside from the allegations contained within his Petition, the record 15 is devoid of details. 16 Accordingly, this Court cannot say that the Court of Appeals’ decision was in any 17 way violative of clearly established Federal law or based on an unreasonable 18 determination of the facts in light of the evidence at his trial. Accordingly, Grounds One 19 and Two of his Petition could not entitle Orduno to habeas relief. 20 Ineffective Assistance of Appellate Counsel (Ground Three). 21 Under clearly established Federal law on ineffective assistance of counsel, Orduno 22 would need to show that his appellate counsel’s performance was both (a) objectively 23 deficient and (b) caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 24 (1984). This results in a “doubly deferential” review of counsel’s performance. Cullen v. 25 Pinholster, 131 S.Ct. 1388, 1403 (2011). The Court has discretion to determine which 26 Strickland prong to analyze first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 27 1998). 28 1 In Ground Three of his Petition, Orduno argues that he received ineffective 2 assistance of appellate counsel because she did not “make a sufficient record to support 3 any claims raised on appeal.” (Doc. 1-9 at 50) However, the reason the Court of Appeals 4 reviewed for fundamental error was that the trial court record, where Orduno represented 5 himself, did not contain any relevant objections. See State v. Henderson, 210 Ariz. 561, 6 567, ¶ 19 (2005) (explaining that failure to raise an issue at trial waives the issue on 7 appeal absent fundamental error). 8 Because Orduno is again unable to show that the Court of Appeals’ decision was 9 in any way violative of clearly established Federal law or based on an unreasonable 10 determination of the facts in light of the evidence at his trial, Ground Three of his Petition 11 could not entitle Orduno to habeas relief. 12 State Claims (Grounds Four through Thirteen). 13 In Grounds Four through Thirteen, Orduno raises state law claims. Specifically, 14 Ground Four states “trial date setting” (Doc. 1-10 at 12); Ground Five states “issues 15 involving jurors” (Doc. 1-10 at 13); Ground Six states “denial of motion to change 16 venue” (Doc. 1-10 at 14); Ground Seven states that Superior Court judges abused their 17 discretion and acted outside of their jurisdiction in denying his requests to change judge 18 (Doc. 1-10 at 15); Ground Eight states that the trial judge should have granted a stay in 19 connection with his special action (Doc. 1-10 at 16); Ground Nine states that “the trial 20 judge erred in allowing certain individuals, but not others, to remain in the courtroom 21 during trial (Doc. 1-10 at 17); Ground Ten states that “the trial judge erred in ordering the 22 Maricopa County Sheriff to transport petitioner and secure his presence during court 23 room proceedings ‘by any means necessary [sic]’” (Doc. 1-10 at 18); Ground Eleven 24 states “the trial court erred in denying Petitioner’s Motion to Dismiss” (Doc. 1-10 at 19); 25 Ground Twelve states “the trial court erred in allowing the State to amend the indictment 26 over Petitioner’s objections” (Doc. 1-10 at 20); and Ground Thirteen states “the trial 27 court erred in dismissing the Rule 32 proceedings” (Doc. 1-10 at 21). 28 1 These remaining claims are all based on State law and federal habeas relief is not 2 available for alleged errors in the interpretation or application of state law. Estelle v. 3 McGuire, 502 U.S. 62 (1991); Middleton v. Cupp, 768 F.2d 1083 (9th Cir. 1985), cert. 4 denied, 478 U.S. 1021 (1986). In Ground Fours through Thirteen of his Petition, Orduno 5 does not assert violations of the U.S. Constitution or federal law. Accordingly, these 6 claims could not entitle Orduno to habeas relief. 7 IT IS THEREFORE RECOMMENDED that Adan Orduno’s Petition for Writ 8 of Habeas Corpus be denied and dismissed with prejudice. 9 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 10 leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition 11 is justified by a plain procedural bar and jurists of reason would not find the ruling 12 debatable. 13 This recommendation is not an order that is immediately appealable to the Ninth 14 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 15 of Appellate Procedure, should not be filed until entry of the district court’s judgment. 16 The parties shall have fourteen days from the date of service of a copy of this 17 recommendation within which to file specific written objections with the Court. See, 28 18 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, 19 the parties have fourteen days within which to file a response to the objections. Failure 20 timely to file objections to the Magistrate Judge’s Report and Recommendation may 21 result in the acceptance of the Report and Recommendation by the district court without 22 further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 23 Failure timely to file objections to any factual determinations of the Magistrate Judge will 24 be considered a waiver of a party’s right to appellate review of the findings of fact in an 25 . . . 26 . . . 27 . . . 28 1 order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 2|| 72, Federal Rules of Civil Procedure. 3 Dated this 22nd day of June, 2018. 4

° ——————pavid Danan 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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