Jesus Oswaldo Mansinas-Hernandez v. Charles L Ryan, et al.

Opinion

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

9 Jesus Oswaldo Mansinas-Hernandez, No. CV-17-03132-PHX-JJT (MHB)

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT COURT: 16 Petitioner Jesus Oswaldo Mansinas-Hernandez, who is confined in the Arizona 17 State Prison, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 18 2254. (Doc. 1.) Respondents filed their Answer on January 30, 2018. (Doc. 13.) On 19 March 5, 2018, Petitioner filed his Reply. (Doc. 14.) 20 BACKGROUND1 21 On October 15, 2009, Petitioner was indicted on four counts of sexual conduct 22 with a minor, Class 2 felonies, and two counts of sexual abuse, Class 3 felonies. (Exh. A.) 23 Petitioner entered into a plea agreement on March 10, 2010, in which he pled guilty to 24 four counts of attempted sexual conduct with a minor and one count of sexual abuse, all 25 Class 3 felonies and dangerous crimes against children. (Exhs. B, C.) On April 13, 2010, 26 Petitioner was sentenced to ten years’ imprisonment on Counts 1, 2, and 3, to be served 27 consecutively, and a suspended sentence of lifetime probation on Counts 4 and 5. (Exhs.

28 1 Unless otherwise noted, the following facts are derived from the exhibits submitted with Doc. 13 – Respondents’ Answer. 1 F, L.) 2 Nearly seven years later, on January 6, 2017, Petitioner filed an untimely notice of 3 post-conviction relief. (Exh. G.) Therein, Petitioner asserted that his failure to file a 4 timely notice of post-conviction relief was through no fault of his own, as his “attorney 5 did not fulfill his duty.” (Exh. G.) On March 1, 2017, the trial court dismissed the petition 6 for post-conviction relief, concluding that the petition was untimely by more than six 7 years. (Exh. H.) The Court also found that Petitioner had failed to state a claim for which 8 relief can be granted in an untimely Rule 32 proceeding. (Exh. H.) 9 On May 2, 2017, Petitioner filed a notice of appeal of his judgment and sentence. 10 (Exh. I.) The Arizona Court of Appeals dismissed the appeal for lack of jurisdiction on 11 May 30, 2017. (Exh. J.) 12 On September 11, 2017, Petitioner filed the instant habeas petition, raising two 13 grounds for relief. (Doc. 1.) In Ground One, Petitioner alleges that he received ineffective 14 assistance of counsel as a result of poor communication and defense strategy. In Ground 15 Two, Petitioner asserts that his 5th and 14th Amendment constitutional rights were 16 violated, as he was deprived of life, liberty, and the pursuit of happiness, due to 17 “malfeasance by the arresting agency and prosecution office. And also by the corhorsion 18 [sic] of the defense counsel and prosecutor.” (Doc. 1 at 7.) 19 DISCUSSION 20 In their Answer, Respondents contend that Petitioner’s habeas petition is untimely 21 and, as such, must be denied and dismissed. 22 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a 23 statute of limitations on federal petitions for writ of habeas corpus filed by state 24 prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:

25 A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the 26 judgment of a State court. The limitation period shall run from the latest of – 27

28 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 1 seeking such review;

2 (B) the date on which the impediment to filing an application 3 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was 4 prevented from filing by such State action; 5 (C) the date on which the constitutional right asserted was 6 initially recognized by the Supreme Court, if the right has 7 been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 8

9 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 10 exercise of due diligence.

11 An “of-right” petition for post-conviction review under Arizona Rule of Criminal 12 Procedure 32, which is available to criminal defendants who plead guilty, is a form of 13 “direct review” within the meaning of 28 U.S.C. § 2244(d)(1)(A). See Summers v. 14 Schriro, 481 F.3d 710, 711 (9th Cir. 2007). Therefore, the judgment of conviction 15 becomes final upon the conclusion of the Rule 32 of-right proceeding, or upon the 16 expiration of the time for seeking such review. See id. 17 Additionally, “[t]he time during which a properly filed application for State post- 18 conviction or other collateral review with respect to the pertinent judgment or claim is 19 pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2); see 20 Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A post-conviction petition is “clearly 21 pending after it is filed with a state court, but before that court grants or denies the 22 petition.” Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004). A state petition that is 23 not filed, however, within the state’s required time limit is not “properly filed” and, 24 therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544 25 U.S. 408, 413 (2005). “When a postconviction petition is untimely under state law, ‘that 26 [is] the end of the matter’ for purposes of § 2244(d)(2).” Id. at 414. 27 In Arizona, post-conviction review is pending once a notice of post-conviction 28 relief is filed even though the petition is not filed until later. See Isley v. Arizona 1 Department of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004). An application for post- 2 conviction relief is also pending during the intervals between a lower court decision and a 3 review by a higher court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) 4 (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)). 5 The statute of limitations under the AEDPA is subject to equitable tolling in 6 appropriate cases. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for 7 equitable tolling to apply, a petitioner must show “‘(1) that he has been pursuing his 8 rights diligently and (2) that some extraordinary circumstances stood in his way’” and 9 prevented him from filing a timely petition. Id. at 649 (quoting Pace, 544 U.S. at 418). A 10 Spanish-speaking petitioner may show an extraordinary circumstance if the petitioner can 11 prove that the language barriers actually worked to prevent timely filing. See Mendoza v. 12 Carey, 449 F.3d 1065, 1069 (9th Cir. 2006) (holding that a petitioner’s lack of access to 13 Spanish-speaking materials combined with the inability to obtain translation assistance 14 before the deadline may constitute extraordinary circumstances). 15 The Court finds that Petitioner’s Writ of Habeas Corpus is untimely. On April 13, 16 2010, Petitioner was sentenced by the trial court and advised of his right to file a petition 17 for post-conviction relief. (Exh. L.) Although he waived his right to direct appeal in his 18 plea agreement, he had 90 days to file an “of-right” petition for post-conviction relief . 19 See Rule 32.4(a), Ariz. R. Crim. P. Thus, Petitioner was required to file his petition by 20 July 12, 2010, but did not file it until January 6, 2017. Because his petition was untimely, 21 his case became final on July 12, 2010, and the AEDPA limitations period began running 22 one day later, on July 13, 2010. The limitations period expired one year later, on July 13, 23 2011. Petitioner did not initiate his habeas proceeding until September 11, 2017. 24 Accordingly, absent any tolling, his habeas petition is over six years late. 25 Petitioner is not entitled to statutory tolling. Petitioner’s commencement of an 26 untimely PCR notice and an untimely notice of appeal do not toll his federal habeas 27 petition because neither was properly filed. The state court dismissed Petitioner’s PCR 28 proceeding pursuant to Rules 32.4(a) and 32.2(b), Ariz. R. Crim. P., for failing to timely 1 file a PCR petition or failing to state a claim for which relief could be granted in an 2 untimely Rule 32 proceeding. See Pace, 544 U.S. at 1811-12 (habeas petitioner’s 3 untimely petition that did not fit within any exceptions was not “properly filed.”). And, 4 the Court of Appeals found that Petitioner failed to timely file his notice of appeal and 5 therefore the court lacked jurisdiction. (Exh. J.) 6 The Ninth Circuit recognizes that the AEDPA’s limitations period may be 7 equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Calderon 8 v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part 9 on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th 10 Cir. 1998). Tolling is appropriate when “‘extraordinary circumstances’ beyond a 11 [petitioner’s] control make it impossible to file a petition on time.” Id.; see Miranda v. 12 Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that “the threshold necessary to 13 trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the 14 rule”) (citations omitted). “When external forces, rather than a petitioner’s lack of 15 diligence, account for the failure to file a timely claim, equitable tolling of the statute of 16 limitations may be appropriate.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). A 17 petitioner seeking equitable tolling must establish two elements: “(1) that he has been 18 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 19 way.” Pace, 544 U.S. at 418. Petitioner must also establish a “causal connection” between 20 the extraordinary circumstance and his failure to file a timely petition. See Bryant v. 21 Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007). 22 Petitioner alleges that his habeas petition was untimely because of his “very slow 23 understanding of Arizona state statutes” and his “limited understanding of the english 24 [sic] language.” (Doc. 1 at 11.) Additionally, Petitioner alleges that he received 25 ineffective assistance of counsel because his public defender “only knew a few words in 26 Spanish,” while he only speaks Spanish. (Doc. 14 at 2.) Petitioner alleges that the merits 27 of his case should exempt him from the AEDPA’s time limitation. (Doc. 14 at 2-3.) 28 Beyond his conclusory allegations, Petitioner does not assert any facts that establish his 1 language barrier constituted an extraordinary circumstance that would justify equitable 2 tolling. Nothing in the record demonstrates that he tried but was unable to obtain 3 materials in Spanish or translation assistance prior to his filing deadline. There is nothing 4 in the record that suggests his language barrier actually prevented him from filing. See 5 Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) (holding that a 6 petitioner’s failure to demonstrate a lack of access to legal materials in his own language 7 or an inability to obtain translation assistance before the deadline does not constitute an 8 extraordinary circumstance). Additionally, Petitioner’s pro se status, indigence, limited 9 legal resources, ignorance of the law, or lack of representation during the applicable 10 filing period do not constitute extraordinary circumstances justifying equitable tolling. 11 See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro se 12 petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance 13 warranting equitable tolling.”). 14 Accordingly, Petitioner is not entitled to any tolling of the AEDPA statute of 15 limitations, and his habeas petition is untimely. 16 CONCLUSION 17 Having determined that Petitioner’s habeas petition is untimely, the Court will 18 recommend that Petitioner’s Petition for Writ of Habeas Corpus be denied and dismissed 19 with prejudice. 20 IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of 21 Habeas Corpus (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE; 22 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 23 leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the 24 Petition is justified by a plain procedural bar and jurists of reason would not find the 25 procedural ruling debatable. 26 \\\ 27 \\\ 28 \\\ 1 This recommendation is not an order that is immediately appealable to the Ninth 2|| Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 3], Appellate Procedure, should not be filed until entry of the district court’s judgment. The parties shall have fourteen days from the date of service of a copy of this || recommendation within which to file specific written objections with the Court. See 28 6|| U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the 9|| District of Arizona, objections to the Report and Recommendation may not exceed 10 || seventeen (17) pages in length. Failure to timely file objections to the Magistrate Judge’s 11 || Report and Recommendation may result in the acceptance of the Report and || Recommendation by the district court without further review. See United States v. 13 || Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a 15} party’s right to appellate review of the findings of fact in an order or judgment entered 16 || pursuant to the Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil □□ Procedure. 18 Dated this 16th day of April, 2018. 19 20 _ ( 4 21 —OWh i Dame Honorable Michelle H. Burns United States Magistrate Judge 23 24 25 26 27 28

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