Canez v. Ryan, 12–CV–2232–PHX–PGR SPL.

• Decision Date: 12 June 2014
• Docket Number: No. 12–CV–2232–PHX–PGR SPL.,12–CV–2232–PHX–PGR SPL.
• Parties: Arturo A. CANEZ, Petitioner, v. Charles L. RYAN, et. al., Respondents.
• Court: U.S. District Court — District of Arizona

25 F.Supp.3d 1250

Arturo A. CANEZ, Petitioner

v.Charles L. RYAN, et. al., Respondents.

No. 12–CV–2232–PHX–PGR SPL.

United States District Court, D. Arizona.

Signed June 12, 2014.

Filed June 13, 2014.

Arturo A. Canez, Buckeye, AZ, pro se.

Ginger Jarvis, Office of the Attorney General, Phoenix, AZ, for Respondents.

ORDER

PAUL G. ROSENBLATT, District Judge.

Before the Court is the Report and Recommendation of Magistrate Judge Logan (Doc. 32), which addresses Petitioner's First Amended Petition for Writ of Habeas Corpus, filed February 25, 2013, pursuant to 28 U.S.C. § 2254 (Doc. 12). Petitioner filed objections to the Report and Recommendation. (Doc. 34.)

Magistrate Judge Logan recommends that the Court deny the petition as barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1)(A). Magistrate Judge Logan concludes that Petitioner is not eligible for statutory or equitable tolling. Having reviewed the matter de novo, the Court will adopt the Report and Recommendation.

Petitioner's convictions and sentences became final on October 7, 2011.¹ The limitations period was statutorily tolled until April 29, 2011, when Petitioner's timely-filed petition for postconviction relief was denied. (Doc. 20–2, Ex. P.) Petitioner filed his petition for habeas corpus relief on October 18, 2012 (Doc. 1), nearly six months after the limitations period expired.

For the reasons set forth in the Report and Recommendation, Petitioner's argument for additional statutory tolling fails because after April 29, 2011, no timely petition for review was pending. (See Doc. 32 at 14–15; Doc. 20–2, Ex. R.) Petitioner's arguments for equitable tolling fail to meet the exceptionally high burden required for a showing that he had been “pursuing his rights diligently” and that “some extraordinary circumstances stood in [his] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418–19, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ; see, e.g., Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.2003) ; Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000). Finally, Petitioner's actual innocence argument fails because it is not supported by new evidence showing factual innocence. See Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Accordingly,

IT IS HEREBY ORDERED that Magistrate Judge Logan's Report and Recommendation (Doc. 32) is accepted and adopted by the Court.

IT IS HEREBY ORDERED that Petitioner's First Amended Petition for Writ of Habeas Corpus is dismissed and denied with prejudice. (Doc. 12.)

IT IS FURTHER ORDERED denying a Certificate of Appealability and denying leave to proceed in forma pauperis on appeal because Petitioner has not made a substantial showing of the denial of a constitutional right.

IT IS FURTHER ORDERED granting Petitioner's motion for an extension of the deadline for responding to the Report and Recommendation. (Doc. 12.)

IT IS FURTHER ORDERED that the Clerk of the Court shall close this case.

REPORT AND RECOMMENDATION

STEVEN P. LOGAN, United States Magistrate Judge.

Petitioner Arturo Canez, who is confined in the Arizona State Prison Complex–Lewis, Buckley Unit, in Buckeye, Arizona, has filed a pro se First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 12).

BACKGROUND

On March 7, 1996, Petitioner was indicted by a grand jury in the Pinal County Superior Court (“Superior Court”), Case No. CR 96–021235, of one count of first degree felony murder (Count I), two counts of armed robbery (Counts II and III), and one count of first degree burglary (Count IV). (Doc. 20–1, Exh. A.) Trial commenced on January 21, 1998, and on February 5, 1998, a jury returned guilty verdicts on all charges. (Doc. 20–1, Exh. B.)

Following sentencing hearings held on September 1, 1998 and October 2, 1998, the Superior Court found the State had proved four aggravating circumstances beyond a reasonable doubt: (1) Petitioner had been convicted of four prior serious offenses; (2) the victim was at least seventy years old at the time of the crime; (3) the murder was committed in expectation of pecuniary gain; and (4) the offense was committed in an especially heinous, cruel, or depraved manner. (Doc. 20–1, Exh. D.) The Superior Court found Petitioner had failed to prove the statutory mitigating circumstance of significant mental impairment and that “the cumulative effect of all of the mitigation offered by the defendant ... [was] not sufficiently substantial to call for leniency.” (Doc. 20–1 at 25, Exh. D.) On October 27, 1998, Petitioner was sentenced to death for the count of first degree murder, and a term of 28–years of imprisonment for each remaining count to run concurrent with one another, but consecutive to the death sentence. (Doc. 20–1, Exh. C and D.)

A Notice of Appeal was automatically filed in the Arizona Supreme Court following the Superior Court's imposition of the death penalty. (Doc. 20–1 at 26, Exh. D.) In his opening brief on direct appeal, Petitioner raised a total of 21 grounds, ten of which pertained to trial as follows:

1. The State's Systematic Exclusion of Hispanic Jurors Violated Batson and Cruz, Deprived Appellant of Equal Protection of the Laws in Violation of the Fourteenth Amendment and Deprived Him of a Fair and Impartial Jury in Violation of the Sixth Amendment and Article 2 Section 24 of the Arizona Constitution...

2. Appellant was Denied his Right to a Fair and Impartial Jury Under the Sixth Amendment and Article 2 Section 24 of the Arizona Constitution and his Rights to a Fair Trial and to Due Process of Law Under Fourteenth Amendment and Article 2 Section 4 of the Arizona Constitution by Use of a Death qualified Jury ...

3. Appellant was Deprived of a Fair and Impartial Jury and Due Process of Law in Violation of the Fifth, Sixth and Fourteenth Amendments and Article 2 Sections 4 and 24 of the Arizona Constitution...

4. Appellant was Denied his State and Federal Constitutional Right to a Fair and Impartial Jury When the Court Limited his Voir Dire of the Jury by Refusing the Use of a Defense Jury Questionnaire ...

5. The Trial Court Erred in Denying Appellant's Motion for Directed Verdict and Deprived Appellant of his Right to Due Process of Law Guaranteed by the Fifth and Fourteenth Amendments and Article 2 Section 4 of the Arizona Constitution as There Was Insufficient Evidence to Support the Conviction ...

6. The Pre–Trial and In–Court Identifications of Appellant by Brian Patterson Were the Product of Improper and Unduly Suggestive Identification Procedures Warranting Reversal of Appellant's Under the Arizona and Federal Constitutions ...

7. The Trial Court Committed Reversible Error in Admitting Appellant's Statements to Police ...

8. Appellant's Constitutional Right to Confrontation was Violated and the Trial Court Abused its Discretion in Limiting Cross Examination of the Chief Witness Against Him ...

9. The Trial Court's Error in Refusing to Exclude Gruesome and Inflammatory Photographs of the Victim and the Crime Scene Violated Appellant's Constitutional Rights ...

10. The Pinal County Attorney Violated ARS 13–2802 and ER 3.4(b) by “Purchasing” Testimony From and Therefore Influencing Several of the State's Witnesses, in Violation of the Statute and Appellant's Right to Due Process Under the Fifth and Fourteenth Amendments and Article 2 Section 4 of the Arizona Constitution and the Right to Confrontation of Witnesses Under the Sixth Amendment and Article 2 Section 24 of the Arizona Constitution...

11. The Reasonable Doubt Instruction Lowered the State's Burden of Proof, Violated the Rule in Winship and Deprived Appellant of his Right to Due Process of Law Under the Fourteenth Amendment and Article 2 Section 4 of the Arizona Constitution and the Right to Trial by Jury Under the Sixth Amendment and Article 2 Sections 23 and 24 of the Arizona Constitution...

(Doc. 20–1, Exh. F.) In a published decision issued on February 14, 2002, the Arizona Supreme Court reversed Petitioner's second conviction for armed robbery (Count III), and affirmed his remaining convictions and sentences. (Doc. 20–1, Exh. E); State v. Canez, 202 Ariz. 133, 42 P.3d 564 (2002).

Following the decision, on June 24, 2002, the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II ), which held that Arizona's capital sentencing scheme violated the Sixth Amendment right to a jury trial. On remand of Ring II, the Arizona Supreme Court consolidated Petitioner's case with others similarly procedurally situated, in which the death penalty had been imposed but mandate had not yet issued, to determine whether Ring II required reversal or vacatur of the death sentences. State v. Ring, 204 Ariz. 534, 65 P.3d 915, 925 (2003). The Arizona Supreme Court concluded that judicial fact-finding in the capital sentencing process would constitute harmless error where it could be determined beyond a reasonable doubt that no reasonable jury would fail to find the aggravating circumstance, and directed that in separate opinions, it would consider individually the sentences of each defendant. State v. Ring, 65 P.3d at 945. Consequently, in State v. Canez, 205 Ariz. 620, 74 P.3d 932, 934 (2003), the Arizona Supreme Court examined Petitioner's case to determine whether the Ring II error was harmless (Doc. 20–2, Exh. H), and on June 30, 2003, vacated Petitioner's death sentence and remanded “for resentencing and for a determination of whether Canez has mental retardation and is therefore ineligible for the death penalty.” State v. Canez, 74 P.3d at 938. The State filed a Petition for Writ of Certiorari (Doc. 20–2, Exh. I), which was denied by the United States Supreme Court on January 12, 2004 (Doc. 20–2, Exh. J); Arizona v. Canez, 540 U.S. 1141, 124 S.Ct. 1043, 157 L.Ed.2d 953 (2004).

On remand, the State withdrew its request for imposition of the death penalty, and on January 5, 2007, the Superior Court resentenced Petitioner to term...