UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

JUAN ROMERO, 

Petitioner, 

v. 

MARK NOOTH, 

Respondent. 

Clarke, Magistrate Judge. 

2:14-cv-00938-CL 

FINDINGS AND 

RECOMMENDATION 

Petitioner was convicted by a Jackson County jury of two 

counts of first-degree rape and first-degree sodomy, and 

sentenced to 266 months of imprisonment. 

Petitioner's judgment of conviction was entered on July 

21, 1999. Petitioner directly appealed his convictions but 

the Court of Appeals affirmed and the Oregon Supreme Court 

denied review. Almost ten later, petitioner filed a petition 

for post-conviction relief but the post conviction court 

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dismissed the petition as untimely, the Oregon Court of 

Appeals summarily affirmed and the Oregon Supreme Court denied 

review. The post-conviction proceedings were concluded on 

April 22, 2014. 

On June 4, 2014, petitioner signed a federal habeas 

petition alleging six grounds for relief. Respondent now moves 

to deny relief on the ground that petitioner did not file his 

petition within the time allowed by 28 U.S.C. § 2244(d). 

Under§ 2244(d), a petitioner has one year from the date 

a direct appeal is final to file a federal habeas corpus. 

Rhines v. Webber, 544 U.S. 269, 272 (2005). The one year 

limitations period is tolled during the time a state 

collateral proceeding is pending. Time elapsed after the 

final judgment and before a collateral filing, and time after 

final collateral disposition and before federal filing counts 

against the year. Nino v. Galaza, 183 F.3d 1003, 1006-7 (9th 

Cir. 1999). 

The appellate judgment in petitioner's appeal was entered 

on December 17, 2001. Almost ten years later petitioner filed 

a petition for post-conviction relief, but it was dismissed as 

untimely. Therefore it was not a "properly filed" collateral 

proceeding and did not statutorily toll the limitations 

period. See, Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). 

Thus, pursuant to the rule of Bowen v. Roe, 188 F.3d 1157 (9th 

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Cir 1999), the statute of limitations began to run when the 

time in which to seek certiorari of petitioner's appellate 

judgment from the U.S. Supreme Court expired, on March 17, 

2002. Petitioner did not file his federal habeas petition 

until June 4, 2014 - or 4,462 days after the judgment in 

petitioner's criminal case became final. Petitioner does not 

dispute that the petition was not filed within the one year 

statute of limitations. Petitioner argues that he is entitled 

to equitable tolling of the limitations period. 

The relevant facts are as follows: Prior to sentencing, 

counsel filed a motion for a new trial based on a juror 

affidavit stating there had been irregularities in the 

deliberation process. The court denied the motion. At 

sentencing, counsel argued that mandatory minimum sentences 

would be cruel and unusual punishment given petitioner's 

history of mental illness and presented detailed evidence of 

petitioner's mental illness. 

On direct appeal, counsel for petitioner argued that 

petitioner's mandatory minimum sentences violated the Oregon 

Constitution. He did not appeal the denial of the motion for 

a new trial. 

On February 22, 2012, petitioner filed a post-conviction 

petition. Petitioner's claims in that proceeding centered 

around the juror affidavit referenced above. To explain the 

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delay in filing, and also as an independent claim, petitioner 

alleged counsel was ineffective for failing to advise him 

about the juror affidavit. 

Petitioner argued that although he was present during 

the motion for new trial where the juror affidavit was a 

central issue, he was unaware of the affidavit due to 

various medical issues and his mental state at the time. 

Petitioner claimed that he first learned about the affidavit 

when his son was moving property that had been sent to him by 

the Jackson County Jail to hold for petitioner. 

The post-conviction court determined that Petitioner had 

to have known about the affidavit at the time of trial and 

dismissed the petition as untimely. Petitioner's Exhibits 38 

and 39. The Court of Appeals affirmed the trial court's 

finding of untimeliness finding in addition: 

... "regardless of how much evidence counsel could 

have gathered about the nature and severity of 

petitioner's alleged mental illness during the time 

period in which petitioner could have timely filed 

a petition for post-conviction relief that 

information would not have aided petitioner. 

Fisher v. Belleque, 237 Or App 405, 410-411, 240 

P.3d 745 (2010). (rejected as excusing late 

petition assertion that petitioner's 'mental 

illness rendered him incapable of appreciating the 

significance of the information that was plainly 

available to him) . 

Resp. Ex. 111 

The Oregon Supreme Court denied petitioner's petition 

for 

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review. 

Petitioner pro se filed a federal petition for Habeas 

Corpus Relief (#2) on June 10, 2014. Subsequently counsel 

was appointed and counsel filed an amended petition (#16). 

Neither petitioner nor respondent has briefed the merits of 

petitioner's claims and the sole issue before the court at 

this point in the proceedings is whether the petition is time 

barred. 

Pursuant to 28 U.S.C. § 2244 (d) (1) (D) the statute of 

limitations for habeas petitions can begin to run on the date 

"on which the factual predicate of the claim or claims 

presented could have been discovered through the exercise of 

due diligence." 

Petitioner argues the statute did not begin to run in 

this case until 2011, when his family discovered the juror 

affidavit during a move. Petitioner argues that although the 

affidavit "was mentioned in court" during the motion for a 

new trial, his "mental health status (both mental illness and 

shock of conviction) was such that he was not able to 

comprehend the proceedings and understand what was going on." 

Brief in Support (#49) p. 10. 

Petitioner argues that after discovering the affidavit 

he diligently pursued his rights and that these facts 

constitute extraordinary circumstances that justify the 

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tolling of the statute. Petitioner also requests an 

evidentiary hearing to testify as to these matters and as to 

his actual innocence. 

Petitioner's post-conviction petition was dismissed as 

untimely. Therefore, it was not "properly filed" and did not 

statutorily toll the limitations period. Pace v. DiGuqliemo, 

544 U.S. 408 (2005). The post-conviction appellate court 

relied on Fisher v. Bellegue, 277 Or App 405 (20110) and 

specifically found that mental illness did not constitute 

extraordinary circumstances to justify equitable tolling. 

Petitioner acknowledges that petitioner's "state case 

was dismissed as untimely, which would ordinarily be 'the end 

of the matter, ' Pace v. DiGugliemo." Petitioner argues that 

"a state system that does not toll a statute of limitations 

when a person is mentally ill is fundamentally unfair, and 

that this court should "find an exception to Pace in this 

case." Brief in Support (#41) p. 11. 

An "exception" to Pace is not warranted under the 

circumstances of this case. 

Under 28 U.S.C. § 2254(d) (2), "factual determinations by 

a state court are presumed to be correct absent clear and 

convincing evidence to the contrary." Miller -el v. Cockrell, 

537 U.S. 322, 340 (2003). In dismissing petitioner's 

petition for post-conviction relief as untimely, the PCR 

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court held that petitioner knew about the juror affidavit at 

the time of the motion for new trial. Petitioner has not 

presented any clear and convincing evidence to the contrary. 

Moreover the PCR court finding that petitioner knew 

about the affidavit is supported by the record which shows 

that petitioner was present during the motion for new trial 

when the juror affidavit was presented and argued as the 

basis of alleged juror misconduct. 

Petitioner's mental illness and "shock of conviction" 

did not prevent him from filing a timely direct appeal. 

After the appellate court denied his claims, he did not 

pursue his post-conviction relief for almost 10 years. 

Even if the court were to accept petitioner's argument 

that his mental state at the time of the motion for new trial 

prevented him from comprehending the proceedings, petitioner 

has not explained why he could not have diligently pursued 

his rights in the following years. 

Although the issue is not directly before the court, I 

note that petitioner's first and second grounds for relief in 

this proceeding allege ineffective assistance of trial and 

appellate counsel, respectively. Ineffective assistance of 

counsel claims are claims that are properly raised in state 

petition for post-conviction relief. Kellotat v. Cupp, 719 

F . 2 d 19 2 7 ( 9th Cir . 19 8 3 ) . 

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Petitioner's state PCR petition was dismissed as 

untimely. Therefore he did not exhaust his ineffective 

assistance of counsel claims as required by 28 u. s. c. § 

2254 (b) (1). Therefore, they would be subject to dismissal 

for lack of jurisdiction. Keeney v. Tamayo-Reyes, 504 U.S. 1, 

10 (1992); O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 

(1999). 

There is sufficient evidence of plaintiff's mental state 

at the relevant time to determine the issue before the court. 

Petitioner has not alleged what more of "material import" 

might be revealed through an evidentiary hearing. See, 

Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002). Nor 

has petitioner established by clear and convincing evidence 

that any of his claims are such that but for the alleged 

juror misconduct no reasonable fact-finder would have found 

him guilty of the underlying offenses. 

Based on the foregoing, petitioner's Amended Petition 

(#16) should be denied on the grounds that it was not filed 

within the limitations period set forth in § 2244(d). 

Petitioner's request for an evidentiary hearing should be 

denied. The Clerk of the court should be directed to ente a 

judgment dismissing this proceeding. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

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of appeal pursuant to Rule 4(a) (1), Federal Rules of 

Appellate Procedure, should not be filed until entry of the 

district court's judgment or appealable order. The parties 

shall have fourteen (14) days from the date of service of a 

copy of this recommendation within which to file specific 

written objections with the court. Thereafter, the parties 

have fourteen (14) days within which to file a response to 

the object ions. Failure to timely file objections to any 

factual determinations of the Magistrate Judge will be 

considered a waiver of a party's right to de novo 

consideration of the factual issues and will constitute a 

waiver of a party's right to appellate review of the findings 

of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Certificate of Appealability 

Should petitioner appeal, a certificate 0£ appealability 

should be allowed. 

( z.-- JLiUl'.1MA .- DATED this -- day of m;lc~·;· 

Mark D. 

United States Magistrate Judge 

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