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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Juan Ulises Martinez 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-1636-PHX-NVW (BSB)

REPORT AND 

RECOMMENDATION 

 Juan Ulises Martinez (Petitioner) has filed a Petition for Writ of Habeas Corpus, 

pursuant to 28 U.S.C. § 2254, challenging his 2002 conviction in the Maricopa County 

Superior Court. (Doc. 1.) Respondents assert that the Petition should be dismissed as 

untimely under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which 

provides the statute of limitations applicable to state prisoners seeking federal habeas 

corpus relief. (Doc. 10.) Alternatively, Respondents argue that Grounds Two and Three 

are not cognizable on habeas corpus review, and that Petitioner’s claims are procedurally 

defaulted and barred from federal habeas corpus review. (Id. at 12-19.) Petitioner has 

not filed a reply in support of his Petition and the deadline to do so has passed. (See

Doc. 6 at 3.) As set forth below, the Court recommends that the Petition be denied as 

untimely and does not reach Respondents’ alternative arguments. 

/ / / 

/ / / 

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I. Factual and Procedural Background

A. Charges, Trial, and Sentencing 

 In June 2001, Petitioner was indicted on one count of second-degree murder, a 

class one dangerous felony. (Doc. 10, Ex. B.) In January 2002, a jury convicted 

Petitioner as charged. (Doc. 10, Ex. A.) On January 29, 2002, the trial court sentenced 

Petitioner to an enhanced sentence of twenty years’ imprisonment. (Doc. 10, Ex. C.) 

B. Direct Appeal 

 Petitioner appealed to the Arizona Court of Appeals and argued that the trial court 

erred by enhancing his sentence based on a prior conviction for aggravated assault. 

Petitioner argued that even though he was convicted of that assault before he was 

convicted of murder, the assault itself occurred two days after the murder. (Doc. 10, 

Ex. A.) On December 5, 2002, the appellate court rejected Petitioner’s claim and 

affirmed his conviction and sentence. (Id.) On April 17, 2003, the Arizona Supreme 

Court denied Petitioner’s petition for review. (Doc. 10, Ex. G.) 

C. Post-Conviction Proceedings 

 1. First Post-Conviction Proceeding 

 On May 8, 2003, Petitioner filed his first notice of post-conviction relief pursuant 

to Rule 32 of the Arizona Rules of Criminal Procedure and was appointed counsel. 

(Doc. 10, Exs. J, K.) Counsel filed a notice stating that after review of the record, he 

could find no colorable claims. (Doc. 10, Ex. K.) Petitioner subsequently filed a pro se

petition, arguing that the evidence at trial was “misleading.” (Doc. 10, Ex. L.) Several 

months later, appointed counsel filed a second petition, arguing that trial counsel was 

ineffective for failing to present two witnesses who would have provided an alibi for 

Petitioner. (Doc. 10, Ex. M.) He provided affidavits from these two witnesses in which 

they attested to the alleged alibi. (Id.) 

 The trial court held an evidentiary hearing. (Doc. 10, Ex. N.) The two alleged 

alibi witnesses, Pedro Alberto Ayala (Petitioner’s friend) and Octavio Martinez Madero 

(Petitioner’s brother) testified. (Id. at 1.) Petitioner and trial counsel Lawrence Blieden 

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also testified. (Id.) The alibi witnesses testified that they were with Petitioner in his 

apartment at the time of the murder. (Id.) Petitioner testified that he repeatedly told trial 

counsel that he had alibi witnesses, but trial counsel ignored him. (Id. at 2.) Trial 

counsel testified that Petitioner never mentioned the witnesses to him, and these 

witnesses would have been very helpful because trial counsel was presenting a mistaken 

identity theory of defense. (Id.) Trial counsel further testified that the only alibi witness 

Petitioner told him about was Veronica Barnes, but when trial counsel contacted her, she 

denied being with Petitioner on the night of the murder. (Id.) The trial court found “the 

credibility of Mr. Blieden outweigh[ed] that of the defendant and his two alibi 

witnesses.” (Id.) The trial court found the testimony of the two alibi witnesses and 

Petitioner “highly unlikely,” and denied relief on October 19, 2004. (Id. at 2-3.) 

Petitioner did not seek review in the Arizona Court of Appeals. (Doc. 10, Ex. H.) 

 2. Second Post-Conviction Proceeding 

 On July 18, 2005, Petitioner filed a second notice of post-conviction relief. 

(Doc. 10, Ex. O.) He cited Rule 32.1(g), which allows for relief when there has been a 

significant change in the law, but he did not identify any significant change in the law 

and did not raise any claims. (Id.) The trial court summarily dismissed the proceeding 

on August 1, 2005. (Doc. 10, Ex. P.) Petitioner did not seek review of that ruling. 

(Doc. 10, Ex. H.) 

 3. Third Post-Conviction Proceeding

 Almost eight years later, on July 1, 2013, Petitioner filed a third notice of postconviction relief. (Doc. 10, Ex. Q.) He argued that there was new evidence of his 

innocence, including the victim’s toxicology report and a Facebook post, which he 

characterized as indicating that another person claimed responsibility for the murder. 

(Id.) Petitioner further argued that the Arizona Court of Appeals’ decision in State v. 

Fish, 213 P.3d 258 (Ariz. Ct. App. 2009), was a significant change in the law that entitled 

him to relief. (Id.) The trial court dismissed the notice of post-conviction relief as 

untimely because Petitioner failed to state a claim on which relief could be granted in an 

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untimely Rule 32 proceeding. (Id.) Petitioner sought review in the Arizona Court of 

Appeals. (Doc. 10, Ex. F.) Petitioner asserted that trial counsel was ineffective for 

failing to present the victim’s toxicology report as evidence that Petitioner had shot the 

victim in self-defense. (Id.) The appellate court granted review, but denied relief. (Id.) 

The appellate court noted that Petitioner’s sole defense at trial was mistaken identity. 

Therefore, trial counsel’s failure to present evidence of self-defense, which was 

inconsistent with a mistaken identity defense, was not ineffective. (Id.) 

D. Petition for Writ of Habeas Corpus 

On August 17, 2015, petition filed a petition for writ of habeas corpus in this 

Court raising the following claims: (1) trial counsel was ineffective in violation of the 

Sixth Amendment for failing to present favorable witness testimony (Ground One); 

(2) the prosecutor engaged in misconduct in violation of the Due Process Clause, and trial 

counsel was ineffective, because they both failed to investigate the testimony of 

Francisco Hernandez (Ground Two); (3) the prosecutor engaged in misconduct in 

violation of the Due Process Clause, and trial counsel was ineffective, because witness 

Lourdes Rodriguez Hernandez was not “read the admonition” before she testified; and 

(4) the Dessuralt hearing violated the Fifth Amendment (Ground Four). (Doc. 1 at 6-9.) 

 Respondents argue that the petition is untimely, Grounds Two and Three are not 

cognizable on federal habeas corpus review, and that Petitioner’s claims are procedurally 

defaulted. (Doc. 10 at 2.) As set forth below, the Court finds the petition untimely and 

does not reach Respondents’ alternative arguments. 

II. The AEDPA Statute of Limitations

A. Commencement of the Limitations Period

The AEDPA provides a one-year statute of limitations for state prisoners to file 

petitions for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). The 

limitations period generally commences on “the date on which the judgment became final 

by the conclusion of direct review or the expiration of the time for seeking such review.” 

28 U.S.C. § 2244(d)(1)(A). However, under certain circumstances, the statute of 

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limitations commences on a different date including, “the date on which the impediment 

to filing an application created by State action in violation of the Constitution or laws of 

the United States is removed,” “the date on which the constitutional right asserted was 

initially recognized by the Supreme Court,” or “the date on which the factual predicate of 

the claim or claims presented could have been discovered through the exercise of due 

diligence.” 28 U.S.C. § 2244(d)(1)(A)-(D). Liberally construing the petition, Petitioner 

may be arguing that § 2244(d)(1)(D) applies because he states that “the facts supporting 

the claim or claims presented could have been discovered through the exercise of due 

diligence,” but trial counsel was not diligent.1

 (Doc. 1 at 11.) Petitioner, however, does 

not identify the date upon which he discovered the facts supporting his claims, identify 

the facts that he allegedly discovered, or identify the claim in the petition to which the 

facts pertain. (Doc. 1 at 11.) Petitioner’s reference to § 2244(d)(1)(D) without further 

explanation is insufficient to show that § 2244(d)(1)(D) applies. Thus, the statute of 

limitations commenced on the date Petitioner’s conviction became final on direct review. 

See 28 U.S.C. § 2244(d)(1)(A).2

 

 To assess the timeliness of the Petition, the Court determines the date on which 

Petitioner’s conviction became “final by the conclusion of direct review.” 28 U.S.C. 

§ 2244(d)(1)(A). After his trial and sentencing, Petitioner pursued direct review in the 

Arizona Court of Appeals and the Arizona Supreme Court. (Doc. 10, Ex. A.) The 

Arizona Supreme Court denied review on April 17, 2003. (Doc. 11, Ex. G.) 

Accordingly, Petitioner’s conviction became final ninety days later, on July 17, 2003, 

upon the expiration of the time for Petitioner to file a petition for writ of certiorari in the 

United States Supreme Court. See Porter v. Ollison, 620 F.3d 952, 958-59 (9th Cir. 

 

1

 Petitioner cites 28 U.S.C. § 2255(f)(4). (Doc. 1 at 11.) Section 2255(f)(4) is the 

counterpart to § 2244(d)(1)(A) that applies to petitions by federal prisoners. Courts have interpreted the statute of limitation provisions of §§ 2244 and 2255 as being consistent. See Lackawana Cty Dist. Attorney v. Coss, 532 U.S. 394, 402 (2001) (O’Connor, J.) 

(plurality opinion). 

2

 The Petition does not contain any allegations indicating that 28 U.S.C. § 2244(d)(1)(B) or (C) apply. 

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2010) (stating that “[w]hen, on direct appeal, review is sought in the state’s highest court 

but no petition for certiorari to the United States Supreme Court is filed, direct review is 

considered to be final when the certiorari petition would have been due, which is 90 days 

after the decision of the state’s highest court.”); see also Bowen v. Roe, 188 F.3d 1157, 

1159 (9th Cir. 1999) (the time for seeking direct review under § 2244(d)(1)(A) “includes 

the period within which a petitioner can file a petition for a writ of certiorari from the 

United States Supreme Court, whether or not the petitioner actually files such a 

petition”); see also Sup. Ct. R. 13.1 (a petition for writ of certiorari to review a judgment 

entered by a state’s highest court must be filed in the United States Supreme Court with 

ninety days after entry of the judgment). Therefore, the one-year limitations period 

commenced the next day, July 18, 2003, and absent tolling, expired in July 2004. See

Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the AEDPA limitations 

period begins to run on the day after the triggering event pursuant to Fed. R. Civ. P. 6(a)). 

B. Statutory Tolling 

 Pursuant to the AEDPA, the one-year limitations period is tolled during the time 

that a “properly filed application for State post-conviction or other collateral review with 

respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see Nino 

v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (stating that an application for collateral 

review is pending in State court for “all the time during which a state prisoner is 

attempting, through proper use of state court procedures, to exhaust state remedies with 

regard to particular post-conviction proceedings.”). 

 On May 8, 2003, Petitioner filed his first notice of post-conviction relief, which 

commenced his first post-conviction proceeding. (Doc. 10, Ex. J.) Therefore, the 

limitations period, which commenced on July 18, 2003, was immediately tolled by the 

earlier-filed application for post-conviction relief. See 28 U.S.C. § 2244(d)(2); Isley v. 

Ariz. Dep’t of Corrs., 383 F.3d 1054, 1055-56 (9th Cir. 2004) (in Arizona, statutory 

tolling begins when a Rule 32 notice of post-conviction relief is properly filed). The 

statute of limitations remained tolled while this post-conviction proceeding was pending 

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in state court. See 28 U.S.C. § 2244(d)(2). On October 19, 2004, the trial court 

dismissed the post-conviction proceeding. (Doc. 10, Ex. N.) Petitioner did not seek 

review in the appellate court. Accordingly, the statute of limitations began running on 

October 20, 2004, and continued running until Petitioner filed his second notice of postconviction relief on July 18, 2005, a total of 271 days. (Doc. 10, Ex. O); see Hemmerle v. 

Schriro, 495 F.3d 1069, 1074-75 (9th Cir. 2007) (stating that the petitioner’s notice of 

post-conviction relief tolled the AEDPA limitation period only up to the date that the trial 

court summarily dismissed the post-conviction action for petitioner’s failure to timely file 

a petition for review). The statute of limitations was tolled until the state court dismissed 

the second notice of post-conviction relief on August 1, 2005. (Doc. 10, Ex. P.) The 

one-year limitations began running again on August 2, 2005, and expired 94 days later, 

on November 4, 2005. 

 On July 1, 2013, Petitioner commenced a third post-conviction proceeding. 

(Doc. 10, Ex. Q.) However, because it was commenced after the limitations period had 

expired, that application for post-conviction relief could not toll the already expired 

limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) 

(holding that “section 2244(d) does not permit the re-initiation of the limitations period 

that has ended before the state petition was filed.”). Therefore, the statute of limitations 

expired on November 4, 2005. Because the petition was not filed until August 17, 2015, 

it is untimely unless Petitioner establishes that equitable tolling applies. 

C. Equitable Tolling

 The AEDPA limitations period may be equitably tolled because it is a statute of 

limitations, not a jurisdictional bar. Holland v. Florida, 560 U.S. 631, 645 (2010). 

Generally, “a litigant seeking equitable tolling bears the burden of establishing two 

elements: (1) that he has been pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 

(2005). The petitioner bears the burden of showing that this extraordinary circumstance 

was the “cause of his untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) 

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(citations omitted). When a prisoner fails to show “any causal connection” between the 

grounds upon which he asserts a right to equitable tolling and his inability to timely file a 

federal habeas petition, equitable tolling is not warranted. Gaston v. Palmer, 417 F.3d 

1030, 1034-35 (2005). The petitioner must also show that his untimeliness was caused 

by an external impediment and not by his own lack of diligence. Bryant v. Arizona 

Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007) (concluding that equitable tolling 

was not warranted when petitioner was not diligent because he did not seek state court 

relief for six years, or take advantage of available paralegal assistance). Petitioner argues 

that equitable tolling applies because trial counsel was not diligent, Petitioner does not 

speak English, and he does not understand the law. (Doc. 1 at 11.) As discussed below, 

these circumstances do not warrant equitable tolling. 

 Petitioner asserts that trial counsel was not diligent because he did not discuss 

possible defenses, did not investigate, provided an “unaffirmative defense,” and did not 

act in Petitioner’s best interest. (Id.) These allegations related to trial counsel’s conduct 

do not explain why Petitioner was unable to file a timely petition for writ of habeas 

corpus in this Court. Accordingly, Petitioner has not shown that trial counsel’s alleged 

conduct is an extraordinary circumstance warranting equitable tolling. See Pace, 544 

U.S. at 418. 

 Petitioner also states that he does not speak English. (Doc. 1 at 6-8.) Petitioner 

does not provide further detail or explain why his inability to speak English prevented 

him from filing a timely habeas corpus petition in this Court. “[A] non-English-speaking 

petitioner seeking equitable tolling must, at a minimum, demonstrate that during the 

running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure 

either legal materials in his own language or translation assistance from an inmate, library 

personnel, or other source. Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006). 

Petitioner does not provide any details regarding his efforts to obtain legal materials in 

his language. However, he states that inmates helped him during post-conviction 

proceedings. (Doc. 1 at 6-8.) Additionally, the record reflects that Petitioner was able to 

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file a state petition for post-conviction relief while the AEDPA statute of limitations was 

running. (Doc. 10, Ex. O.) The Court finds that Petitioner’s allegation that he does not 

speak English is inadequate to establish that it was an extraordinary circumstance beyond 

his control sufficient to entitle him to equitable tolling. See Mendoza, 449 F.3d at 1070. 

 Petitioner also asserts that he does not understand the law. (Doc. 1 at 6-8.) 

Petitioner’s lack of familiarity with the law and lack of legal assistance do not constitute 

extraordinary circumstances sufficient to toll the limitations period. “[I]t is well 

established that ‘ignorance of the law, even for an incarcerated pro se petitioner, 

generally does not excuse prompt filing.’” Marsh v. Soares, 223 F.3d 1217, 1220 (10th 

Cir. 2000) (quoting Fisher v. Johnson, 174 F.3d 710, 714 (9th Cir. 1999)). Petitioner’s 

ignorance of the law and indigent status do not distinguish him from the great majority of 

inmates pursuing habeas corpus relief. Such circumstances are not extraordinary and do 

not justify tolling the limitations period. “If limited resources, lack of legal knowledge, 

and the difficulties of prison life were an excuse for not complying with the limitation 

period, the AEDPA’s limitation period would be meaningless since virtually all 

incarcerated prisoners have these same problems in common.” Bolanos v. Kirkland, 

2008 WL 928252, at *4 (E.D. Cal. Apr. 4, 2008); see also Rasberry v. Garcia, 448 F.3d 

1150, 1154 (9th Cir. 2006) (affirming denial of equitable tolling because neither the 

district court’s failure to advise the petitioner of the right to amend his petition to include 

unexhausted claims nor petitioner’s inability to correctly calculate the limitations period 

were extraordinary circumstances warranting equitable tolling). 

 As set forth above, Petitioner has not established that an extraordinary 

circumstance prevented him from filing a timely petition for writ of habeas corpus in this 

Court. Moreover, even if an extraordinary circumstance existed, Petitioner is not entitled 

to equitable tolling because he has not shown that he has been diligently pursuing his 

rights. See Pace, 544 U.S. at 418. Petitioner’s first post-conviction proceeding was 

commenced in a timely manner. However, after the court dismissed that proceeding, 

Petitioner waited almost a year before initiating a second post-conviction proceeding, and 

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then waited almost eight years after the conclusion of that proceeding before filing a third 

notice of post-conviction relief. (Doc. 10, Exs. J, O, Q.) Petitioner then waited nearly 

five months after the conclusion of his third post-conviction proceeding before seeking 

relief in this Court. (Doc. 1.) Considering the length of time between Petitioner’s postconviction proceedings, and the additional time between his last post-conviction 

proceeding and the filing of the pending habeas petition, Petitioner is not entitled to 

equitable tolling. See Pace, 544 U.S. at 419 (concluding that a petitioner was not entitled 

to equitable tolling when he “waited years, without any valid justification, to assert” his 

claims in state court and then waited “five more months” after proceedings finished in 

state court before seeking relief in federal court). 

 Petitioner’s petition is untimely by more than nine years. Equitable tolling is not 

warranted because no extraordinary circumstance prevented Petitioner from filing a 

timely petition in this Court and he has not been diligently pursuing his rights. 

Accordingly, the petition should be dismissed as untimely. 

III. Conclusion 

 Because Petitioner filed his Petition for Writ of Habeas Corpus after the expiration 

of the AEDPA statute of limitations and equitable tolling does not apply to excuse the 

untimely filing, it should be dismissed as untimely. Therefore, the Court does not 

consider Respondents’ alternative arguments for denying habeas corpus relief. 

 Accordingly, 

IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 

28 U.S.C. § 2254 (Doc. 1) be DENIED. 

IT IS FURTHER RECOMMENDED that a certificate of appealability and leave 

to proceed in forma pauperis on appeal be denied because dismissal of the Petition is 

justified by a plain procedural bar and reasonable jurists would not find the ruling 

debatable. 

 This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 

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Rules of Appellate Procedure should not be filed until entry of the District Court’s 

judgment. The parties shall have fourteen days from the date of service of a copy of this 

recommendation within which to file specific written objections with the Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to 

file a response to the objections. Failure to file timely objections to the Magistrate 

Judge’s Report and Recommendation may result in the acceptance of the Report and 

Recommendation by the District Court without further review. See United States v. 

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to 

any factual determinations of the Magistrate Judge may be considered 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. See Fed. R. Civ. P. 72. 

 Dated this 6th day of January, 2016. 

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