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1

 Unless otherwise noted, the following facts are derived from the exhibits submitted

with Doc. 11 – Respondents’ Answer.

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Hildefonso Arcineiga-Rangel,

Petitioner, 

vs.

Charles L. Ryan, et al.,

Respondents. 

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CIV 15-2172-PHX-DGC (MHB)

REPORT AND RECOMMENDATION

TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT:

Petitioner Hildefonso Arcineiga-Rangel has filed a pro se Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 11), and

Petitioner has filed a reply (Doc. 12).

BACKGROUND1

The following facts are derived from the Arizona Court of Appeals’ Memorandum

Decision. (Exh. E.)

On the night of July 27, 2004, Petitioner asked his 10-year-old daughter, Lucero H.,

if she wished to accompany him to the store. Instead of driving to the store, Petitioner pulled

the family van into the parking lot of an apartment complex. While parked, Petitioner pulled

down Lucero’s pants and her underwear and put his hand inside her genital area. Petitioner

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also tried to lick her genital area and again touched the outside of her genital area. Lucero

tried to escape from the van. Because the inside handle to the passenger door was broken, she

tried to roll down the window to open the door using the outside handle, but Petitioner

stopped her. Lucero’s brother, Ruben H., and his friends were walking nearby when they saw

the van, walked up to it, shined a flashlight inside, and saw Petitioner sexually assaulting

Lucero. Ruben then opened the passenger door and pulled her out.

The State charged Petitioner with kidnapping, a class two felony; sexual conduct with

a minor, a class two felony; attempted sexual conduct with a minor, a class three felony; and

molestation of a child, a class two felony. (Exh. B.) All four charges were alleged to be

dangerous crimes against children. (Id.) At trial, the State presented the testimony of the

victim, Lucero, as recounted above. (Exh. E.)

In addition to Lucero’s testimony, Eric R. testified that, on the night of the incident,

he, Ruben, and another friend, Lince T., were walking to the park when they noticed

Petitioner’s van parked in the apartment complex parking lot. (Id. at 3.) Ruben testified that

he walked up to the van and took a look inside the passenger window using a flashlight. (Id.)

Ruben stated that Lucero’s pants were pulled down and that Petitioner was kneeling behind

her with his pants partly down. (Id.) After observing this, Ruben opened the passenger door,

pulled Lucero out of the van, and began hitting Petitioner. (Id.) Lince testified similarly,

asserting that, after Ruben opened the door, he saw Lucero between the front seats with

Petitioner behind her. (Id.) Lince averred that Lucero’s pants were down. (Id.)

Petitioner testified that Lucero had asked to drive the van that night and that he

allowed her to drive a few blocks and that it was her idea to park the car at the apartment

complex. (Id.) He stated that he had just switched seats with Lucero so that he could drive

the rest of the way to the store when Ruben and his friends approached the van. (Id.)

Petitioner denied touching Lucero in any sexual way. (Id.)

The jury subsequently acquitted Petitioner on the kidnapping charge but found him

guilty of sexual conduct with a minor, attempted sexual conduct with a minor, and child

molestation. (Id. at 4.) The jury also found Lucero to be under the age of 12 at the time of the

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incident. (Id.) On the charge of sexual conduct with a minor, the court sentenced Petitioner

to a mandatory term of life imprisonment with no possibility of release until he has served

35 years. (Id.) As to the other two charges, the court imposed a consecutive 10-year sentence

for child molestation and lifetime probation for attempted sexual conduct with a minor, to

commence upon discharge from prison. (Id.)

On July 12, 2005, Petitioner filed a timely notice of appeal from the convictions and

sentences. (Exh. C.) Petitioner’s counsel subsequently filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878

(1969), advising the court that, after a diligent review of the record, she could not find any

arguable issues to raise on appeal. (Exh. D.) Petitioner was provided the opportunity to file

a supplemental pro se brief raising any issues, but failed to do so. (Exh. E at 2.)

On August 15, 2006, the Arizona Court of Appeals affirmed Petitioner’s convictions

and sentences. (Exh. E.) On October 31, 2006, that court issued the Order and Mandate after

Petitioner did not file either a motion for reconsideration or a petition for review to the

Arizona Supreme Court. (Exh. F.)

On October 27, 2006, Petitioner filed a timely pro se PCR notice (Exh. G), and the

trial court appointed counsel (Exh. H). On November 30, 2006, Petitioner filed a second pro

se PCR notice. (Exh. I.) On January 10, 2007, Petitioner’s counsel moved to withdraw. (Exh.

J.) The court granted the motion permitting counsel to withdraw, and appointed new counsel

for Petitioner. (Exh. K.) On April 10, 2007, Petitioner’s counsel filed a notice of completion,

stating that she could not find any colorable issues to raise on his behalf. (Exh. L.) The court

then granted Petitioner additional time to file his own pro se PCR petition. (Exh. M.)

On July 5, 2007, more than a month after the court’s deadline for Petitioner to file his

PCR petition and after he had not filed anything, the court dismissed his PCR petition. (Exh.

N.) More than a month later, Petitioner filed a request for a Spanish-speaking attorney to

represent him in the PCR proceeding. (Exh. O.) The trial court, noting that it had previously

dismissed Petitioner’s PCR petition for failure to file a timely PCR petition, denied his

request. (Exh. P.) Petitioner did not file anything further. (Exh. Q.)

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On October 28, 2015, Petitioner filed the instant habeas petition. In his Petition,

Petitioner raises one ground for relief alleging that he was convicted based on perjured

testimony and that he is actually innocent.

DISCUSSION

In their Answer, Respondents contends that Petitioner’s habeas petition is untimely

and must be dismissed.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a

statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners.

See 28 U.S.C. § 2244(d)(1). The statute provides:

A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of –

(A) the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review;

(B) 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,

if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized

by the Supreme Court, if the right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

“[T]he period of ‘direct review’ in 28 U.S.C. § 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.” Bowen v. Roe,

188 F.3d 1157, 1158-59 (9th Cir. 1999). Additionally, “[t]he time during which a properly

filed application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward” the limitations period.

28 U.S.C. § 2244(d)(2); see Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). A state

petition that is not filed, however, within the state’s required time limit is not “properly filed”

and, therefore, the petitioner is not entitled to statutory tolling. See Pace v. DiGuglielmo, 544

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U.S. 408, 413 (2005). “When a postconviction petition is untimely under state law, ‘that [is]

the end of the matter’ for purposes of § 2244(d)(2).” Id. at 414.

A post-conviction petition is “clearly pending after it is filed with a state court, but

before that court grants or denies the petition.” Chavis v. Lemarque, 382 F.3d 921, 925 (9th

Cir. 2004). In Arizona, post-conviction review is pending once a notice of post-conviction

relief is filed even though the petition is not filed until later. See Isley v. Arizona Department

of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004). An application for post-conviction relief

is also pending during the intervals between a lower court decision and a review by a higher

court. See Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey v. Saffold, 536

U.S. 214, 223 (2002)). However, the time between a first and second application for postconviction relief is not tolled because no application is “pending” during that period. See

Biggs, 339 F.3d at 1048; see also King v. Roe, 340 F.3d 821 (9th Cir. 2003) (The petitioner

was “not entitled to tolling during the interval between the completion of one round of state

collateral review and the commencement of a second round of review.”). Moreover, filing

a new petition for post-conviction relief does not reinitiate a limitations period that ended

before the new petition was filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

2003).

The statute of limitations under AEDPA is subject to equitable tolling in appropriate

cases. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for equitable tolling

to apply, a petitioner must show “‘(1) that he has been pursuing his rights diligently and (2)

that some extraordinary circumstances stood in his way’” and prevented him from filing a

timely petition. Id. at 648-49 (quoting Pace, 544 U.S. at 418).

The Court finds that Petitioner’s Petition for Writ of Habeas Corpus is untimely. After

trial and sentencing, Petitioner appealed his convictions and sentences to the Arizona Court

of Appeals. (Exh. C.) The court of appeals affirmed Petitioner’s conviction and sentence on

August 15, 2006. (Exh. E.) The court issued its Order and Mandate on October 31, 2006.

(Exh. F.)

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However, before the Mandate issued, Petitioner filed a timely PCR notice. (Exh. G.)

Because the PCR notice was properly filed, it started tolling AEDPA’s 1-year statute of

limitation before it started to run. The PCR proceeding was “pending” and tolled AEDPA’s

statute of limitations until July 5, 2007, when the trial court dismissed the PCR proceedings

for failure to file a PCR petition. (Exh. N.) Petitioner did not take any further action in this

PCR proceeding. Because nothing was pending after the trial court’s decision, the statute of

limitations began running the next day – on July 6, 2007. See, e.g., Hemmerle v. Schriro, 495

F.3d 1069, 1074 (9th Cir. 2007) (statute of limitations was tolled until date on which notice

of post-conviction relief was dismissed where no petition for review was filed). The

limitations period continued running uninterrupted for one year – until July 6, 2008 – when

it expired.

In sum, Petitioner’s habeas petition was filed over seven years after the limitations

period expired. The habeas petition is therefore untimely.

The Ninth Circuit recognizes that the AEDPA’s limitations period may be equitably

tolled because it is a statute of limitations, not a jurisdictional bar. See Calderon v. United

States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other

grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th Cir. 1998).

Tolling is appropriate when “‘extraordinary circumstances’ beyond a [petitioner’s] control

make it impossible to file a petition on time.” Id.; see Miranda v. Castro, 292 F.3d 1063,

1066 (9th Cir. 2002) (stating that “the threshold necessary to trigger equitable tolling [under

AEDPA] is very high, lest the exceptions swallow the rule”) (citations omitted). “When

external forces, rather than a petitioner’s lack of diligence, account for the failure to file a

timely claim, equitable tolling of the statute of limitations may be appropriate.” Miles v.

Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). A petitioner seeking equitable tolling must

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

extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418. Petitioner must also

establish a “causal connection” between the extraordinary circumstance and his failure to file

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a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir.

2007).

Petitioner appears to concede that his habeas petition is untimely, and has not

proffered any extraordinary circumstance that would justify equitable tolling or demonstrated

that an external impediment hindered the diligent pursuit of his rights. And, Petitioner’s pro

se status, indigence, limited legal resources, ignorance of the law, or lack of representation

during the applicable filing period do not constitute extraordinary circumstances justifying

equitable tolling. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro

se petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance

warranting equitable tolling.”). Petitioner, however, contends that he has newly discovered

evidence in the form of recantation testimony, and alleges that under the exception to the

statute of limitations for actual innocence, as recognized by McQuiggin v. Perkins, 133 S.Ct.

1924, 1928 (2013), he is entitled to “gateway” through the statute of limitations.

“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may

pass” to overcome the expiration of the statute of limitations. Id. For Petitioner to meet the

actual innocence gateway of Schlup v. Delo, 513 U.S. 298 (1995), the Court must determine,

“how reasonable jurors would react to the overall, newly supplemented record,” and whether,

“it is more likely than not that no reasonable juror would have convicted him.” Lee v.

Lampert, 653 F.3d 929, 945 (9th Cir. 2011) (quoting House v. Bell, 547 U.S. 518, 538 (2006)

and Schlup, 513 U.S. at 327). “This exacting standard permits review only in the

‘extraordinary’ case, but it does not require absolute certainty about the petitioner’s guilt or

innocence.” Id. at 938 (citations and internal quotations omitted). “To be credible, such a

claim requires petitioner to support his 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.” Schlup, 513 U.S. at 324. The

Schlup standard “is demanding,” McQuiggin, 133 S.Ct. at 1936, and precedents holding that

a habeas petitioner satisfied its strictures have typically involved dramatic new evidence of

innocence.

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Here, Petitioner has submitted what appears to be a notarized statement by the victim,

his daughter Lucero, recanting her trial testimony and asserting that she had testified against

Petitioner because she (who was under the age of 12 at the time of her trial testimony) found

out that Petitioner was paying child support and she wanted “revenge.” (Doc. 1.) The typed

letter is dated June 17, 2006 – a year after Petitioner’s trial and sentencing. The letter was

then apparently sent to the public defender’s office, who received it on June 19, 2006. (Id.)

The record also indicates that prior to receiving the letter, Petitioner’s step-son,

Ruben, called Petitioner’s counsel and recanted his trial testimony stating that he lied because

he “wanted his stepfather out of the house temporarily.” (Doc. 11, Exh. J.)

Thereafter, the record reflects that Petitioner’s counsel moved to withdraw. Then,

Petitioner’s second appointed counsel, presumably having the information regarding the

alleged recantations, nonetheless filed a notice of completion claiming she could not find any

colorable claims to raise on Petitioner’s behalf.

Initially, the Court notes that assuming the recantations were authentic, said evidence

was available a year after Petitioner was sentenced – but before Petitioner’s direct appeal

became final and before Petitioner filed his PCR notice. Yet, Petitioner waited over nine

years to bring the newly-discovered recantation evidence forward in the instant habeas

petition – failing to alert the Arizona Court of Appeals and Arizona Supreme Court of the

evidence on direct review and completely failing to file a PCR petition.

Moreover, “recantation testimony is properly viewed with great suspicion.” Jones v.

Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014) (citations omitted). “Recanting testimony is easy

to find but difficult to confirm or refute: witnesses forget, witnesses disappear, witnesses with

personal motives change their stories many times, before and after trial.” Id. “It upsets

society’s interest in the finality of convictions, is very often unreliable and given for suspect

motives ....” Id. Thus, “a witness’ later recantation of his trial testimony does not render his

earlier testimony false.” Id. “Rather, a witness’ recantation is considered in addition to his

trial testimony and in the context in which he recanted when assessing the likely impact it

would have on jurors.” Id.

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Petitioner asserts his innocence based solely on what the Court sees as questionable

recantation testimony – uncorroborated by any other evidence. As such, the Court finds that

Petitioner has failed to show that it is more likely than not that no reasonable juror would

have found him guilty beyond a reasonable doubt. First, the two recantations, assuming they

are genuine, are from Petitioner’s family members, which significantly reduce their weight

and reliability. See, e.g., House v. Bell, 547 U.S. 518, 552 (2006) (noting that testimony by

friends or relations of the accused might have less probative value than testimony from

disinterested witnesses); McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir. 2007) (noting that

family members might have a personal stake in a defendant’s exoneration). This suspicion

“is especially applicable in cases of child sexual abuse where recantation is a recurring

phenomenon, particularly when family members are involved and the child has feelings of

guilt or the family members seek to influence the child to change her story.” United States

v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) (citations and internal quotations omitted).

Second, the fact that both Lucero and Ruben came forward with their changed version

of events at roughly the same time, approximately a year after trial, with absolutely no reason

given for the delay, casts further doubt on the veracity of the statements. See, e.g., Herrera

v. Collins, 506 U.S. 390, 403-04 (1993); McCray, 499 F.3d at 573 (discounting evidence

from witnesses who did not provide a good explanation for why they delayed in coming

forward). Here, a reasonable juror could easily believe that family members exerted undue

influence on Lucero and Ruben, or that their memory of the events faded or changed since

the incident occurred – and for those reasons, credit the testimony that was closer in time to

the abuse.

The most that can be said of the new testimony is that it conflicts with some of the

evidence presented at trial. Aside from the testimony of Lucero and Ruben, Eric and Lince

corroborated the account of incident at issue – with Lince specifically testifying that he saw

Lucero between the front seats, with her pants down, and Petitioner behind her.

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In sum, even if newly-discovered evidence was presented to a reasonable juror, given

the inherent unreliability of such recantation evidence, a reasonable juror could disregard it,

and instead rely upon the testimony that was presented at trial.

Accordingly, Petitioner has failed to demonstrate a sufficient showing of actual

innocence to excuse his untimeliness.

CONCLUSION

Having determined that Petitioner’s habeas petition is untimely, the Court will

recommend that Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) be denied and

dismissed with prejudice.

IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH

PREJUDICE;

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave

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

justified by a plain procedural bar and jurists of reason would not find the procedural 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), 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);

Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen

days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of

Civil Procedure for the United States District Court for the District of Arizona, objections

to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure

timely to file 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

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timely to file objections to any factual determinations of the Magistrate Judge will 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 Rule 72,

Federal Rules of Civil Procedure.

DATED this 11th day of April, 2016.

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