Cordova v. Shinn ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Javier Ruben Cordova, No. CV-22-00195-TUC-JGZ (DTF) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 Petitioner Javier Ruben Cordova (Cordova or Petitioner) presently incarcerated in 16 Arizona State Prison Complex-La Palma in Eloy, Arizona, filed a Petition for Writ of 17 Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents filed their limited 18 answer on July 20, 2022. (Doc. 9.) The time to file a reply has passed without a reply or a 19 motion to extend the deadline. This matter was referred to the undersigned United States 20 Magistrate Judge for a Report and Recommendation. (Doc. 4 at 4.) 21 As more fully set forth below, this Court recommends the Petition be denied and 22 this matter be dismissed. 23 I. BACKGROUND 24 a. State Court Criminal Proceeding 25 The Arizona Court of Appeals described the facts underlying Petitioner's 26 convictions as follows: 27 ¶ 3 Late at night in October 2014, Cordova, Herrera, and Ortiz arrived at the home of C.H. and his wife D.H., having agreed 28 on a plan to rob the couple, and knowing Herrera was armed with a collapsible baton. Herrera and Ortiz, who were wearing 1 badges, rang the bell, identified themselves as police officers, and told the couple that their relative had been in a serious car 2 accident, while Cordova paced nearby. 3 ¶ 4 After the couple admitted Herrera and Ortiz into the house, Herrera drew the baton and started hitting C.H. repeatedly on 4 the head. Herrera then dropped the baton and hit C.H. with his fists while Ortiz picked up the baton and began struggling with 5 D.H. C.H.'s son-in-law T.A. emerged from a bedroom and came to C.H.'s assistance, placing Herrera in a chokehold. 6 Cordova then entered the house and began hitting C.H. with the baton. Cordova and Ortiz eventually ran out the front door, 7 while C.H., D.H., and T.A. held Herrera until sheriff's deputies arrived. C.H. and T.A. both had multiple injuries, including 8 gashes that required stitches, and D.H. had a crushed knee. The state charged Cordova, Herrera, and Ortiz in a single 9 indictment, naming each of them in the nine counts of burglary, aggravated assault, and attempted robbery alleged. 10 11 State v. Cordova, No. CA-CR 2017-0081, 2018 WL 1762526, ¶¶ 3-4 (Ariz. App. Apr. 12, 12 2018).1 A jury found Cordova guilty of burglary, three counts of aggravated assault with a 13 deadly weapon or dangerous instrument, one count of aggravated assault resulting in 14 temporary, substantial disfigurement, two counts each of attempted armed robbery and 15 attempted aggravated robbery, and one count of impersonating a peace officer. Id. ¶¶ 1, 5. 16 "The trial court sentenced him to a combination of concurrent and consecutive terms of 17 imprisonment totaling 28.5 years." Id. 18 Cordova appealed his sentences. Id. ¶ 1. He argued some of his consecutive 19 sentences violate Arizona statutes. Id. ¶ 6. On April 12, 2018, the Arizona Court of Appeals 20 found no error and affirmed Cordova's convictions and sentences. Id. ¶ 18. There is no 21 indication in the record whether Cordova petitioned to the Arizona Supreme Court for 22 review. Cordova did not note a petition to the Arizona Supreme Court. (Doc. 1 at 2.) 23 b. Post-Conviction Relief Proceedings 24 On April 18, 2018, Cordova filed a notice of post-conviction relief. (Doc. 9-1 at 60.) 25 On May 29, 2018, Cordova's counsel notified the post-conviction court that he was "unable 26 to find a meritorious issue of law or fact which may be raised as a basis for relief pursuant 27 1 The facts as recited by the court of appeals are entitled to a presumption of correctness. See § 2254(e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting 28 argument that statement of facts in Arizona Supreme Court opinion should not be afforded presumption of correctness) 1 to Rule 32, Arizona Rules of Criminal Procedure." Id. at 55. The court relieved Cordova's 2 counsel and set a deadline for Cordova to file a Petition on his own behalf. Id. at 62. The 3 court warned that failure to comply with the deadline would result in dismissal. Id. at 63. 4 On July 25, 2018, the court noted that Cordova had failed to file either a petition or a 5 request for an extension. Id. at 65. The court then denied relief and dismissed the petition. 6 Id. Cordova did not petition for review of the denial. (Doc. 9 at 4.) 7 c. Current Habeas Proceeding 8 Cordova certifies he placed the present habeas petition in the prison mailing system 9 on April 19, 2022. (Doc. 1 at 15.) It was filed on the Docket on May 25, 2022. (Doc. 1.) 10 He raises two grounds for relief in his petition. Id. at 5-8. First, Cordova asserts the victim 11 had been given a line-up and did not identify Cordova. Id. at 5. He states he has a learning 12 disability that prevented him from exhausting this claim. Id. at 5-6. Second, he argues his 13 counsel failed to properly explain his appeal options and present Cordova's mental health 14 and disability evidence to the court. Id. at 7. He again asserts that he has mental health 15 issues and disabilities that prevented him from exhausting his claims. Id. at 7-8. Cordova 16 provides the following explanation as to why the one-year AEDPA statute of limitations 17 should not bar his petition: 18 Due to mental health issues and other disabilities explained in this packet should at least give [him] the benefit to have [his] 19 sentence reduced and a chance to argue some points that this judicial system in this state, the State of Arizona, has been 20 getting away with. 21 Id. at 13. 22 II. TIMELINESS 23 Whether a petition is time-barred by the statute of limitations is a threshold issue 24 that must be resolved before considering other procedural issues or the merits of the 25 individual's claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The 26 Anti-Terrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations 27 applies here. See 28 U.S.C. § 2244(d)(1); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 28 1999). As potentially applicable here, the limitations period begins to run on the date when 1 "the judgment became final by the conclusion of direct review or the expiration of the time 2 for seeking such review." § 2244(d)(1)(A). 3 "The time during which a properly filed application for State post-conviction or 4 other collateral review with respect to the pertinent judgment or claim is pending shall not 5 be counted toward any period of limitation under this subsection." § 2244(d)(2). In 6 Arizona, an application for post-conviction relief commences when a notice of 7 post-conviction relief is filed. Isley v. Ariz. Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 8 2004). "State review ends when the state courts have finally resolved an application for 9 state postconviction relief." Lawrence v. Florida, 549 U.S. 327, 332 (2007). Thus, once the 10 state's "highest court has issued its mandate or denied review, no other state avenues for 11 relief remain open," then the application is final and statutory tolling ends. Id. In Arizona, 12 petitioners may petition for review within 30 days of the entry of the final decision or 13 dismissal of a notice. Ariz. R. Crim. P. 32.16(a)(1). 14 Here, Cordova's judgment became final on May 13, 2018. See Gonzalez v. Thaler, 15 565 U.S. 134, 150 (2012) (explaining direct review is final when time to pursue direct 16 review expires, if petitioner who do not pursue direct review to Supreme Court of United 17 States); Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007) (direct appeal final 18 when time to seek review of decision expires); see also Ariz. R. Crim. P. 1.3 (computation 19 of time), 31.21(b)(2)(A) ("A party must file a petition for review no later than 30 days after 20 the Court of Appeals enters its decision, unless a party files a timely motion for 21 reconsideration in the Court of Appeals . . . ."). However, Cordova filed his notice of 22 post-conviction relief on April 18, 2018, which initiated statutory tolling. See § 2244(d)(2); 23 Doc. 9-1 at 50. The post-conviction court dismissed the action on July 25, 2018. (Doc. 9-1 24 at 65.) This started the AEDPA clock. See Lawrence, 549 U.S. at 332. Thus, the statute of 25 limitations expired on July 26, 2019. Cordova did not place his Petition in the mailing 26 system until April 19, 2022—over two-and-a-half years later. (Doc. 1 at 15.) 27 This petition is untimely. Absent equitable tolling or manifest injustice, it should be 28 dismissed. 1 III. EQUITABLE TOLLING 2 A habeas petitioner may escape his untimely filing by establishing some ground for 3 equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010) (Section 2244(d) "is 4 subject to equitable tolling in appropriate cases."). The petitioner bears the burden of proof 5 in seeking to equitably toll the AEDPA's statute of limitations. Pace v. DiGuglielmo, 544 6 U.S. 408, 418 (2005). "To be entitled to equitable tolling [the petitioner] must show '(1) 7 that he has been pursuing his rights diligently, and (2) that some extraordinary 8 circumstance stood in his way' and prevented timely filing." Lawrence, 549 U.S. at 336 9 (quoting Pace, 544 U.S. at 418). "[T]he threshold necessary to trigger equitable tolling 10 [under the AEDPA] is very high, lest the exceptions swallow the rule." Waldron-Ramsey 11 v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Miranda v. Castro, 292 F.3d 12 1063, 1066 (9th Cir. 2002)). This is an extremely fact-dependent inquiry, which must be 13 made on a case-by-case basis. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001); see 14 Holland, 560 U.S. at 649-50, 654. An evidentiary hearing is not necessary when the record 15 is amply developed. Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010). 16 Here, Petitioner argues that "due to mental health issues and other disabilities 17 explained in this packet" that the Court "should at least give [him] the benefit to have [his] 18 sentence reduced and a chance to argue some points." (Doc. 1 at 13.) The Court interprets 19 this as a plea for equitable tolling. 20 a. Diligent Pursuit of Rights 21 Petitioners must act with "reasonable diligence" in pursuing their rights; courts do 22 not require "maximum feasible diligence." Holland, 560 U.S. at 653 (citations omitted). 23 Petitioners must show they had been "reasonably diligent in pursuing [their] rights not only 24 while an impediment to filing caused by an extraordinary circumstance existed, but before 25 and after as well, up to the time of filing his claim in federal court." Smith v. Davis, 953 26 F.3d 582, 598-99 (9th Cir. 2020). This requires petitioners to specify the steps they took to 27 diligently pursue their claims. Roy v. Lampert, 465 F.3d 964, 972 (9th Cir. 2006) (quoting 28 Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)). Courts must consider the "level of 1 care and caution in light of [petitioners'] particular circumstances." Smith, 953 F.3d at 599 2 (quoting Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011)). 3 Petitioner has made no claim that he was diligent in pursuit of his rights. (Doc. 1.) 4 Respondents raised this issue in their answer. (Doc. 9 at 7.) Petitioner did not respond. 5 While Petitioner states he has disabilities, he does not elaborate on their nature or effect. 6 As such, the Court cannot determine his particular circumstances. His petition comes more 7 than two-and-a-half years after the statute of limitations expired. Petitioner did not explain 8 how he was diligent during those two- and-a-half years. The Court finds that Petitioner did 9 not carry his burden to show diligent pursuit of his rights. 10 b. Extraordinary circumstances 11 "[T]he requirement that extraordinary circumstances 'stood in his way' suggests that 12 an external force must cause the untimeliness, rather than, as we have said, merely 13 'oversight, miscalculation or negligence on [the petitioner's] part, all of which would 14 preclude the application of equitable tolling.'" Waldron-Ramsey, 556 F.3d at 1011 15 (alteration in Waldron-Ramsey) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 16 2008)). A petitioner arguing their mental competency or impairment requires equitable 17 tolling "must show extraordinary circumstances, such as an inability to rationally or 18 factually personally understand the need to timely file, or a mental state rendering an 19 inability personally to prepare a habeas petition and effectuate its filing." Orthel v. Yates, 20 795 F.3d 935, 938 (9th Cir. 2015). 21 Here, Petitioner argues that his delay is because of his mental health and disabilities. 22 (Doc. 1 at 13.) Petitioner does not explain what these disabilities are or the nature of their 23 effects. He says he has a learning disability and difficulty in remembering and 24 understanding. Id. at 5-7. However, these are conclusory statements without explanation 25 as to how these prevented him from filing his habeas petition. Respondents raised this issue 26 in their answer. (Doc. 9 at 6-7.) Petitioner did not respond. Petitioner has not shown that 27 his impairments satisfy the extraordinary-circumstances requirement. Thus, he is not 28 entitled to equitable tolling. 1 Additionally, Petitioner mentions that he did not exhaust his claims because the 2 facility lost his legal documents. (Doc. 1 at 5.) This is not mentioned under the timeliness 3 analysis. Id. at 13. There is no indication whether this occurred after his post-conviction 4 relief proceeding was finalized or not. Thus, the Court does not find this convincing to toll 5 the statute of limitations. 6 Petitioner is not entitled to equitable tolling. 7 IV. MANIFEST INJUSTICE/ACTUAL INNOCENCE 8 Actual innocence can provide a gateway to federal habeas relief through a 9 procedural bar or the AEDPA's statute of limitations. McQuiggin v. Perkins, 569 U.S. 383, 10 386 (2013) (holding actual innocence "serves as a gateway through which a petitioner may 11 pass whether the impediment is a procedural bar . . . or, as in this case, expiration of the 12 statute of limitations."); Schlup v. Delo, 513 U.S. 298, 315 (1995) (actual innocence as a 13 gateway for barred constitutional claims). Petitioners must show it is more likely than not 14 that, "in light of the new evidence, no juror, acting reasonably, would have voted to find 15 him guilty beyond a reasonable doubt." McQuiggin, 569 U.S. at 386, 399 (quoting Schlup, 16 513 U.S. at 327, 329). This is a "demanding" standard, only available in the "extraordinary" 17 case. House v. Bell, 547 U.S. 518, 538 (2006). 18 Petitioner has not made an actual-innocence claim. (Doc. 1.) He does argue that the 19 victim failed to identify him in a line up. Id. at 5. There is no indication that this is new 20 evidence or sufficient to indicate no reasonable juror would have convicted him. 21 Respondents raises this issue in their answer. (Doc. 9 at 7.) Petitioner failed to respond. 22 Petitioner is not entitled to the actual-innocence gateway. 23 The Petition is untimely and Petitioner is not entitled to equitable tolling or use of 24 the actual innocence gateway. 25 V. RECOMMENDATION 26 Accordingly, it is recommended that the district court, after its independent review, 27 deny and dismiss the petition because it is untimely. 28 Pursuant to 28 U.S.C. § 636(b)(1) and 72(b)(2), Fed. R. Civ. P., any party may serve || and file written objections within fourteen days of being served with a copy of the Report || and Recommendation. A party may respond to the other party's objections within fourteen || days. No reply brief shall be filed on objections unless leave is granted by the district court. 4|| If objections are not timely filed, they may be deemed waived. The Clerk of Court is 5 || directed to terminate the referral of this matter. Filed objections should bear the following 6 || case number: 4:22-cv-00195-TUC-JGZ. 7 Dated this Ist day of March, 2023. 8 9 10 11 12 United States Magistrate Jude 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-