Alfredo Camargo v. Charles Ryan , 684 F. App'x 607 ( 2017 )

NOT FOR PUBLICATION FILED
MAR 21 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFREDO CAMARGO, No. 15-16014
Petitioner-Appellant, D.C. No. 2:13-cv-02488-NVW
v.
MEMORANDUM*
CHARLES L. RYAN; ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted December 12, 2016
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and BOULWARE, ** District
Judge.
The district court found the habeas corpus petition filed by Alfredo Camargo,
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard F. Boulware, United States District Judge for the
District of Nevada, sitting by designation.
an Arizona state prisoner, untimely under 28 U.S.C. § 2244(d). The district court
found that Mr. Camargo’s conviction became final on August 27, 2010, thirty days
after July 28, 2010, when the state court issued an order granting a thirty-day
extension of time to seek reconsideration or review of Camargo’s direct appeal. His
federal habeas petition was filed on December 3, 2013, outside the one-year statute
of limitations under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which runs from the date a conviction became final. The district court
found that Camargo was not entitled either to statutory tolling or equitable tolling of
the statute of limitations. We reverse on the issue of equitable tolling and find
Camargo’s federal habeas petition to be timely.
1. Camargo pleaded guilty to various offenses on April 8, 2008. On August
16, 2008, Camargo filed a Notice of Post-Conviction Relief (PCR) with the Arizona
Superior Court for the County of Maricopa. This form of proceeding is the only
available form of direct appellate review under Arizona law for a defendant who has
pleaded guilty. Ariz. R. Crim. P. 32.1. Camargo was appointed counsel, and counsel
ultimately filed a Notice of Completion of Review, indicating the lack of an issue
for review. The court ordered counsel to remain in an advisory capacity.
2. On August 11, 2009, Camargo filed a pro se PCR petition with the Superior
Court, arguing ineffective assistance of trial and PCR counsel. In response to
Camargo’s petition, the state argued that Camargo waived his challenge to trial
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counsel by pleading guilty, and that he had no right to counsel in his PCR
proceeding. The Superior Court summarily dismissed Camargo’s first PCR petition
“for the reasons stated in the Response to the Petition” on July 7, 2010.
3. On July 26, 2010, Camargo’s PCR advisory counsel filed a motion with the
Arizona Superior Court, withdrawing from her advisory role and requesting “that
the Rule 32.9 time limits for the filing of a Motion for Rehearing or Petition for
Review of the Court’s denial of [Defendant’s] Petition for Post-Conviction Relief
be extended an additional 30 days.” The court granted the request on July 28, 2010.
On August 30, 2010, Camargo filed a pro se Petition for Review with the Arizona
Court of Appeals. On September 3, 2010, the Court of Appeals dismissed the
Petition as “untimely,” because it “was not filed within 30 days” of the trial court’s
denial of his petition, failing to take into account the extension granted. The State
now concedes that this was error.
4. Camargo filed a second pro se PCR petition in Superior Court on September
24, 2010. This second PCR petition asserted ineffective assistance of counsel during
Camargo’s first round of PCR proceedings. The Superior Court dismissed the
petition as untimely under Ariz. R. Crim. P. 32.4(a), interpreting it as only raising a
claim of ineffective assistance of trial counsel. The State now concedes that this
decision was incorrect and that the Superior Court should have recognized the
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second PCR petition as timely raising a claim of ineffective assistance of counsel in
the first PCR proceeding.
5. Camargo sought review of the denial of his second PCR petition in the
Arizona Court of Appeals, arguing that his first and second PCR petitions were
timely, and that he properly raised ineffective assistance of post-conviction counsel
in his second PCR petition. The State responded that Camargo’s second PCR
petition was properly dismissed as successive. The state now concedes that its
submitted argument was incorrect, because Camargo’s second PCR petition was not
successive as it properly raised the issue of ineffective assistance of counsel in his
first PCR proceeding. The State now also acknowledges that the second PCR
petition was timely filed.
6. The Arizona Court of Appeals denied review of the second PCR petition
on December 4, 2012. After being granted an extension, Camargo filed a timely pro
se petition for review in the Arizona Supreme Court. In its response, the State
acknowledged the filing of the petition, but declined to respond, thus missing another
opportunity to alert the state courts about the Superior Court’s prior erroneous
untimeliness determinations. The Arizona Supreme Court denied review in a
summary order on March 27, 2013.
7. On December 3, 2013, Camargo filed a timely pro se petition for a federal
writ of habeas corpus, and later filed an amended petition. The amended petition
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raised claims of constructive denial of the right to counsel at trial, and ineffective
assistance of counsel in his first PCR proceeding. The district court dismissed the
petition as untimely, finding that Mr. Camargo’s conviction became final on August
27, 2010. It therefore concluded the federal petition was filed outside of the one-
year statute of limitations set by AEDPA. The district court acknowledged that the
state court had made erroneous determinations as to the untimeliness of Camargo’s
PCR petitions, but held that it lacked the authority to overturn these determinations
and find Camargo’s second PCR petition properly filed under 28 U.S.C. §
2244(d)(2), such that it would statutorily toll the AEDPA statute of limitations. The
district court also found that equitable tolling did not apply to Camargo’s federal
petition.
8. Equitable tolling of the one-year limitations period under § 2244 is
available when a state prisoner establishes that: (1) he has pursued his rights
diligently, and (2) extraordinary circumstances prevented timely filing. See Rasberry
v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). “The petitioner must additionally
show that the extraordinary circumstances were the cause of his untimeliness, and
that the extraordinary circumstances made it impossible to file a petition on time.”
Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (citations and internal quotation
marks omitted). The person seeking equitable tolling is required to have exercised
reasonable diligence in attempting to file, which we have described as “the effort
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that a reasonable person might be expected to deliver under his or her particular
circumstances.” Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011).
9. “If the facts underlying a claim for equitable tolling are undisputed,” the
propriety of equitable tolling is a matter of law “reviewed de novo.” Gibbs v.
Legrand, 767 F.3d 879, 884 (9th Cir. 2014) (quoting Spitsyn v. Moore, 345 F.3d 796,
799 (9th Cir. 2003)). In this case, the “exceptional circumstances” required for
equitable tolling are clearly present: (a) the Arizona state courts’ repeated, incorrect
determinations that Camargo’s post-conviction review petitions were untimely; (b)
the State’s multiple failures to inform the state courts of those clearly erroneous
timeliness determinations; and (c) the State’s affirmative misstatement to the Court
of Appeals that Camargo’s second PCR petition was successive. Camargo diligently
filed all of his state post-conviction filings, pro se, until he exhausted his state
remedies. Indeed, he raised the timeliness errors in his submissions. But for the
incorrect state court timeliness determinations, Camargo’s PCR petitions would
have been heard on the merits.
10. We therefore find that the statute of limitations on Camargo’s federal
habeas petition should have been equitably tolled from the date he filed his second
PCR petition, September 24, 2010, until review of that petition concluded, March
27, 2013. The district court determined that Camargo’s conviction became final on
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August 27, 2010.1 In light of that determination and our finding on equitable tolling,
Camargo’s federal habeas petition was timely.
11. We do not reach the question whether the district court had the authority
to find Camargo’s state petition “properly filed” pursuant to 28 U.S.C. § 2244(d)
under the Supreme Court’s holding in Pace v. DiGuglielmo, in spite of the state
court’s contrary and erroneous timeliness determinations. 544 U.S. 408, 414-17
(2005). We also decline to reach the merits of Camargo’s federal habeas petition,
and remand for the district court to consider them in the first instance.
REVERSED AND REMANDED.
1
On appeal, the State concedes that Camargo may be entitled to an even later starting
date, of October 27, 2010, from which to run the AEDPA one-year statute of
limitations, based on his petition for review and his motion for reconsideration
filings regarding his first PCR petition. However, we need not reach this issue,
because it does not affect the timeliness of his federal petition, given our equitable
tolling determination.
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