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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Ignacio Romero Romero, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-02018-PHX-JJT (BSB)

REPORT AND 

RECOMMENDATION

 On October 7, 2015, Petitioner Ignacio Romero Romero filed a Petition for Writ 

of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In their Answer, 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. 16.) 

Alternatively, Respondents argue that a portion of Ground Two is procedurally defaulted 

and barred from federal habeas corpus review. (Id. at 15.) Petitioner has not filed a reply 

in support of his Petition and the deadline to do so has passed. (See Doc. 8.) As set forth 

below, the Court recommends that the Petition be denied as untimely and does not reach 

Respondents’ alternative arguments. 

I. Factual and Procedural Background

A. Charges, Trial, and Sentencing 

 On October 20, 1999, the State of Arizona charged Petitioner with one count each 

of aggravated assault, kidnapping, child molestation, and sexual conduct with a minor, 

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each a class two felony and dangerous crime against children. (Doc. 16, Ex. A.) 

Following a trial, a jury found Petitioner guilty as charged. (Doc. 16, Exs. B-E.) On 

March 16, 2001, the trial court sentenced Petitioner to three consecutive prison terms of 

twenty-four years each for the convictions for aggravated assault, kidnapping, and 

molestation of a child. (Doc. 16, Exs. F, EE.) The court sentenced Petitioner to a 

consecutive term of twenty-seven years’ imprisonment for the conviction for sexual 

conduct with a minor. (Id.) 

B. Direct Appeal 

 Petitioner appealed to the Arizona Court of Appeals and raised six claims for 

relief. (Doc. 16, Ex. H.) On February 5, 2002, the appellate court rejected Petitioner’s 

claims and affirmed his convictions and sentences. (Doc. 16, Ex. K.) Petitioner sought 

review in the Arizona Supreme Court, which was denied on August 2, 2002. (Doc. 16, 

Exs. L, M.) 

C. Additional State Court Proceedings 

 1. First Post-Conviction Proceeding 

 On September 5, 2002, Petitioner, through counsel, filed a notice of postconviction relief in the trial court pursuant to Rule 32 of the Arizona Rules of Criminal 

Procedure. (Doc. 16, Ex. N.) Petitioner subsequently filed a petition. (Doc.16, Ex. O.) 

On June 5, 2003, the trial court denied relief. (Doc. 16, Ex. R.) Petitioner did not seek 

review in the Arizona Court of Appeals. (Doc. 16 at 7.) 

 2. Petition for DNA Testing 

 On October 12, 2012, Petitioner, represented by the Arizona Justice Project, filed a 

petition for post-conviction DNA testing pursuant to Ariz. Rev. Stat. § 13–4240. 

(Doc. 16, Ex. S.) On October 31, 2012, the State filed a response. (Doc. 16, Ex. T.) On 

November 13, 2012, Petitioner filed a reply. (Doc. 16, Ex. U.) Following argument, the 

trial court ordered the release of evidence in Petitioner’s case for DNA testing. (Doc. 16, 

Exs. V, W.) The test results showed that DNA on a bandana found at the crime scene 

matched Petitioner’s DNA profile, and that Petitioner could not be excluded as the 

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individual who contributed the DNA found on the knife at the scene. (Doc. 16, Ex. X.) 

The results also showed that no DNA was detected on a vaginal swab or a green plastic 

cup. (Id.) On November 27, 2013, the court dismissed the proceeding. (Doc. 16, Ex. Y.) 

D. Petition for Writ of Habeas Corpus

On September 15, 2015, Petitioner filed a petition for writ of habeas corpus in this 

Court raising the following claims: (1) Petitioner’s due process rights, right to a fair trial, 

and the Arizona rules of discovery were violated when the trial court failed to comply 

with Brady disclosure requirements (Ground One); (2) the trial and appellate courts 

abused their discretion by denying Petitioner’s motion for a new trial based on a 

suggestive lineup and by precluding evidence that “the home of the alleged assault had in 

its possession cut newspaper clippings of [Petitioner]” (Ground Two); (3) the prosecution 

violated Batson by striking a fair and impartial juror based on his race and gender 

(Ground Three); (4) there was insufficient evidence to convict Petitioner and he is 

actually innocent of the charges (Ground Four); (5) the trial court improperly commented 

on the evidence by instructing the jury that voluntary intoxication was not a defense 

(Ground Five); (6) Petitioner was denied a fair trial and the appellate court erroneously 

determined that there was no fundamental error based on the introduction into evidence 

of enlarged color photographs of the victim’s wounds (Ground Six). (Doc. 1 at 5-10.) 

 Respondents argue that the Petition is untimely and that a portion of Ground Two 

is procedurally defaulted and barred from federal habeas corpus review. (Doc. 16.) 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.” 

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

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). The Petition does not include any allegations 

indicating that these subsections apply. Thus, the statute of limitations commenced on 

the date Petitioner’s convictions became final by the conclusion of direct review. See 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. 16, Exs. G, K, L, M.) The 

Arizona Supreme Court denied review on August 2, 2002. (Doc. 16, Ex. M.) 

Accordingly, Petitioner’s convictions become final ninety days later, on October 31, 

2002, 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. 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 within ninety days after entry of the judgment). Accordingly, unless 

tolling applies, the statute of limitations began running on November 1, 2002, and 

expired one year later. 

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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). Postconviction review is “pending,” and thus the statute of limitation tolls, while a prisoner is 

pursuing habeas relief in the state court. Carey v. Saffold, 536 U.S. 214, 219-21 (2002); 

Delhomme v. Ramirez, 340 F.3d 817, 819-20 (9th Cir. 2003), abrogated on other grounds 

by Evans v. Chavis, 546 U.S. 189 (2006). The period in which a habeas petition is 

pending includes the time between a lower court’s adverse ruling and the prisoner’s filing 

of a notice of appeal, so long as the filing comports with state law timeliness 

requirements. Chavis, 546 U.S. at 191. An untimely petition, however, is not “properly 

filed” pursuant to 28 U.S.C. § 2244(d)(2), and so it does not toll the statute of limitation. 

Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005); Thorson v. Palmer, 479 F.3d 643, 645 

(9th Cir. 2007). 

 As previously stated, Petitioner’s convictions became final on October 31, 2002. 

However, prior to that date, Petitioner filed a notice of post-conviction relief on 

September 5, 2002. (Doc. 16, Ex. N.) Therefore, the limitations period, which would 

have commenced on November 1, 2002, was immediately tolled by the earlier-filed 

notice of 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 in state court. See 28 

U.S.C. § 2244(d)(2). On June 5, 2003, the trial court dismissed the post-conviction 

proceeding. (Doc. 16, Ex. R.) Under the Arizona Rules of Criminal Procedure, 

Petitioner had thirty days, plus an additional five days for mailing, or until July 10, 2003, 

to file a petition for review. Ariz. R. Crim. P. 1.3; see State v. Savage, 573 P.2d 1388, 

1389 (Ariz. 1978) (holding Rule 1.3 applies to petitions for review in post-conviction 

proceedings); see also State v. Rabun, 782 P.2d 737, 739 (Ariz. 1989) (reaffirming the 

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holding in Savage). Petitioner did not file a petition for review. Therefore, at the latest, 

Petitioner’s post-conviction proceeding was no longer pending as of July 10, 2003. Thus, 

the limitations period commenced on July 11, 2003 and expired one year later on July 11, 

2004. 

 Assuming that the petition for DNA testing constitutes post-conviction or other 

collateral review for purposes of § 2244(d), that proceeding did not toll the limitations 

period because it was commenced on October 12, 2012, after the limitations period had 

expired. (Doc. 16, Ex. S); 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 July 11, 2004. Because the Petition was not filed until October 7, 2015, it is 

untimely unless Petitioner establishes that equitable tolling or an exception to the statute 

of limitations applies. 

C. Equitable Tolling or Exception to the Statute of Limitations

 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) 

(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 Atty 

Gen., 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 

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six years, or take advantage of available paralegal assistance). As discussed below, 

Petitioner has not established that equitable tolling applies. 

 1. Lack of Resources and Legal Knowledge 

 Petitioner asserts that he lacks resources to hire an attorney and that he does not 

understand the law. (Doc. 1 at 12, 24-25.) 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 trial court dismissed that proceeding 

Petitioner did not seek appellate review. Rather, Petitioner waited more than eight years 

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before initiating further state court proceedings, a petition for DNA testing, and then 

waited nearly two years after the conclusion of that proceeding before seeking relief in 

this Court. (Docs. 16, Exs. R, S; Doc. 1.) Considering the length of time between 

Petitioner’s state court proceedings, and the additional time between his last state 

proceeding and the filing of the pending habeas petition, Petitioner has not diligently 

pursued his rights and, therefore, 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). Accordingly, the Petition should be dismissed as untimely unless 

Petitioner establishes that an exception to the limitations period applies. 

 2. Actual Innocence Exception 

Liberally construing the Petition, Petitioner asserts a claim of actual innocence to 

avoid the statute of limitations. (Doc. 1 at 8, 12.) In McQuiggin v. Perkins, ___ U.S. 

___, 133 S. Ct. 1924, (2013), the United States Supreme Court recognized an exception 

to the AEDPA statute of limitations for a claim of actual innocence. The Court adopted 

the actual innocence gateway previously recognized in Schlup v. Delo, 513 U.S. 298, 

314-15 (1995), for excusing the bar to federal habeas corpus review of procedurally 

defaulted claims. McQuiggin, 133 S. Ct. at 1928 (citing Schlup, 513 U.S. at 937-38.) 

The rule announced in McQuiggin does not provide for an extension of the time 

statutorily prescribed, but instead is an equitable exception to § 2244(d)(1). McQuiggin, 

133 S. Ct. at 1931. Actual innocence, if proven, merely allows a federal court to address 

the merits of a petitioner’s otherwise time-barred constitutional claims; the Supreme 

Court has not yet addressed whether “a freestanding claim of actual innocence” provides 

a separate basis for granting habeas relief. Id.

 To pass through the Schlup gateway, a “petitioner must show that it is more likely 

than not that no reasonable juror would have convicted him in the light of the new 

evidence.” Schlup, 513 U.S. at 316. “Schlup requires a petitioner ‘to support his 

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allegations of constitutional error with new reliable evidence — whether it be exculpatory 

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that 

was not presented at trial.’” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (quoting 

Schlup, 513 U.S. at 324). Petitioner has not presented new evidence and has not shown 

that failure to consider his claims will result in a fundamental miscarriage of justice. 

(Doc. 1.) Thus, he has not met Schlup’s high standard and this exception does not excuse 

his untimely filing. 

III. Conclusion 

 Because Petitioner filed his Petition after the expiration of the AEDPA statute of 

limitations, and equitable tolling or an exception to the limitations period do not apply to 

excuse the untimely filing, the Petition 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 

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 

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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. 

 Dated this 2nd day of June, 2016. 

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