Aparicio v. McDaniel
| Decision Date | 30 March 2012 |
| Docket Number | 3:07-cv-00427-LRH-VPC |
| Parties | HUGO APARICIO, Petitioner, v. E.K. MCDANIEL, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This matter having come on for an evidentiary hearing before the Court on August 11, 2011, on the respondents' motion (#82) to dismiss the petition as untimely, and the Court having received the testimony, evidence and argument presented on the issues raised, does hereby make the following:
FINDINGS OF FACT
1. Petitioner Hugo Aparicio challenges his Nevada state conviction, pursuant to a guilty plea, of two counts of robbery with the use of a deadly weapon.
2. The judgment of conviction was filed on February 19, 2004, and petitioner pursued a direct appeal through counsel.
3. At the time of petitioner's plea, sentencing, and conviction, he was 17. His birth date is April 22, 1986.1
4. Petitioner had lived in Mexico City, Mexico, until he was 14, when he came to the United States. He had completed at least sixth grade in Mexico, and he was able to read and write in Spanish. Aparicio was placed in the ninth grade in the United States, but he was "kicked out" after only a fewmonths. He thereafter worked construction jobs. At that time, prior to his incarceration, he and those around him spoke predominantly Spanish both within his community and at work.2
5. Shortly after his conviction, on or about February 24, 2004, Aparicio was transported to High Desert State Prison ("High Desert"). After initially being held in the "fish tank" pending classification, he was placed in the Youthful Offender Program unit, which included juveniles and some young adults. Youthful offenders were placed together in this unit where, inter alia, they could go through schooling.3
6. Approximately two months after he arrived at High Desert, on April 22, 2004, Aparicio turned 18.
7. Youthful Offender unit inmates did not interact, and could not interact under the governing rules, with the older adult inmate population.4
8. Because older adult inmates could not interact with Youthful Offender inmates, inmates in the unit could not interact, as a general rule, face-to-face with adult inmate law clerks. Nor could the Youthful Offender unit inmates physically access the prison law library during the relevant time period. Aparicio did have one or two face-to-face meetings with an inmate law clerk in early 2004, at a time when his direct appeal still was pending, but this meeting or meetings represented the exception rather than the rule. The basic operating rules under which the unit was structured - segregating youthful offenders from older adult inmates - precluded such face-to-face interaction as a general rule.5
9. Youthful Offender unit inmates thus, in the main, could access prison legal resources during the relevant time period only through a "paging" system, whereby the inmates would request forms, materials, and/or other assistance through prison request forms or "kites."6
10. The evidence presented does not credibly establish that requests for forms and legal materials at High Desert routinely were not honored to an extent that would stand in the way of a timely filing. Inter alia, both Aparicio and fellow Youthful Offender inmate Eriberto Leon filed state petitions on forms obtained from the prison law library. As discussed further below, Aparicio in the main testified that his requests for active legal assistance, not materials, were not honored at High Desert.7
11. Aparicio was not provided active legal assistance in response to these requests because, as a general matter, inmate law clerks do not prepare petitions for other inmates and do not provide substantial active legal assistance in preparing a petition.8
12. Thus, as a general matter, an inmate - whether an English-speaking inmate or a primarily Spanish-speaking inmate with access to translation assistance - does not act diligently or reasonably in delaying the preparation or filing of a petition solely on the basis that an inmate law clerk has not provided requested active legal assistance in preparing a petition. Inmate law clerks generally do not provide such active legal assistance to a substantial degree.9
13. The High Desert prison law library did not have any Spanish language materials of import available, whether for an inmate physically in the law library or for one instead attempting to access its resources through the paging system.10
14. While Aparicio was at High Desert, he did not have sufficient English-language capability to prepare and file a petition without at least some translation assistance. The Court does not find that he lacked any English-language capability whatsoever during this time, and his English-language skills improved over time to one degree or another. But during the relevant time period at High Desert, he did not have sufficient English fluency to prepare a petition without some translation assistance.11
15. Aparicio had translation assistance available to him from multiple other bilingual inmates in the Youthful Offender unit, including, but not limited to, Eriberto Leon and members of the Sureño gang with whom Aparicio then was affiliated. He had such assistance substantially available to him to translate legal materials, educational course materials, and books.12
16. However, petitioner nonetheless often would spend time playing cards when he had yard time and could interact with other inmates who might provide translation assistance.13
17. On or about July 13, 2004, an inmate was killed at High Desert, which led to a lockdown of the institution for approximately six months.14
18. The lockdown necessarily substantially limited the extent to which Aparicio could interact with other inmates in the unit who otherwise might assist him with translation.
19. On direct appeal, the Supreme Court of Nevada affirmed Aparicio's judgment of conviction on September 15, 2004. Petitioner did not file a petition for a writ of certiorari. The ninety-day time period for seeking certiorari review expired on December 14, 2004.
20. Giving petitioner the benefit of the doubt against the backdrop of the nonspecific testimony presented, the Court finds that the relative restriction on petitioner's access to other inmates who could provide translation assistance to him occasioned by the lockdown extended through January 15, 2005. Thereafter, Aparicio again had access to translation assistance from bilingual inmates in the unit to the same extent as before, i.e., to the same extent as discussed in Finding No. 15.
21. On April 22, 2005, Aparicio turned 19.
22. On August 4, 2005, Aparicio mailed a state post-conviction petition to the state district court clerk for filing. Eriberto Leon had assisted Aparicio at least to an extent.15
23. 232 days elapsed between the expiration of the time period for seeking certiorari review and the mailing of the first state petition for filing.
24. On November 9, 2005, Aparicio was transferred to Ely State Prison ("Ely").16
25. On December 13, 2005, Aparicio sent a kite in Spanish to the Ely prison law library requesting an interpreter to help him with his habeas corpus writ and paperwork in Spanish so that he could study how to prepare a writ.17
26. The law library responded that law clerks were not allowed to go to his unit - Unit 6 - and that he could request a guide manual on how to file a petition. It appears to be undisputed that thismanual was in English, not Spanish, and further that there were no other Spanish-language legal materials of any substance at the library. The library did have Spanish-speaking law clerks.18
27. Petitioner, who has the burden of proof in this regard, did not present any testimony or other evidence at the federal evidentiary hearing tending to establish that he was unable to obtain translation assistance from other inmates, separate and apart from the prison law library, during the time that he was in Unit 6 at Ely, to the extent that, arguendo, such assistance still was necessary for him.19
28. During all relevant time periods addressed herein, Aparicio could access prison law library resources from the units that he was in at Ely only through a paging system. As at High Desert, as a general matter, inmate law clerks at Ely do not prepare petitions for other inmates and do not provide other inmates with substantial active legal assistance in preparing petitions. The evidence presented does not credibly establish that requests at Ely for forms and legal materials routinely were not honored to an extent that would stand in the way of a filing. As with regard to High Desert, Aparicio in the main testified that his requests for active legal assistance, not materials, were not honored at Ely.20
29. On February 24, 2006, the Supreme Court of Nevada affirmed the denial of Aparicio's first state petition. The remittitur issued on March 22, 2006.
30. On April 22, 2006, Aparicio turned 20.
31. On August 2, 2006, absent tolling or delayed accrual on any basis other than the pendency of the first state petition, the federal limitation period would expire. That is, 133 days had elapsed as of this date after the issuance of the remittitur on March 22, 2006. The Court notes such a putative expiration date merely as a reference point in the chronological sequence at this juncture.
32. Four days after this putative expiration date, on August 6, 2006, Aparicio was placed in Unit 4 at Ely, a 23-hour lockdown administrative and/or disciplinary segregation unit. Aparicio was placed in Unit 4 for protection because he was trying to exit the Sureño gang referenced in Finding No. 15.21
33. A very short time thereafter, as reflected by the time line that follows regarding legal relief sought, an inmate in a neighboring cell, Alexander Ocasio, agreed to help Aparicio with his case.22
34. Ocasio did not provide Aparicio substantial translation assistance. Ocasio spoke very little Spanish. Ocasio...
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