FILED

NOT FOR PUBLICATION

APR 4 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO SEGOVIANO ALMANZA, No. 20-16019

Petitioner-Appellant, D.C. No. 2:15-cv-02064-DLR

v.

MEMORANDUM*

DAVID SHINN, Director, Director of the Arizona Department of Corrections;

ATTORNEY GENERAL FOR THE

STATE OF ARIZONA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Argued and Submitted February 9, 2022 Phoenix, Arizona

Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and FITZWATER,** District Judge. Concurrence by Chief Judge MURGUIA.

Arizona prisoner Fernando Segoviano Almanza (“Almanza”) appeals the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. dismissal of his 28 U.S.C. § 2254 amended habeas petition as timed-barred and

procedurally defaulted. This court granted a certificate of appealability on two issues.

We have jurisdiction under 28 U.S.C. § 2253. We affirm in part, reverse in part, and

remand.

We review de novo the dismissal of a habeas petition under the Anti-Terrorism

and Effective Death Penalty Act of 1996 (“AEDPA”) as time-barred. See Noble v.

Adams, 676 F.3d 1180, 1181 (9th Cir. 2012). “If the facts underlying a claim for

equitable tolling are undisputed, the question of whether the statute of limitations

should be equitably tolled is . . . reviewed de novo. Otherwise, findings of fact made

by the district court are to be reviewed for clear error.” Stancle v. Clay, 692 F.3d 948,

953 (9th Cir. 2012) (ellipsis in original) (quoting Bills v. Clark, 628 F.3d 1092, 1096

(9th Cir. 2010)). The petitioner has the burden of establishing that he is entitled to

tolling of the AEDPA limitations period. Id. We review de novo both the district

court’s application of the relation-back doctrine under Federal Rule of Civil Procedure

15(c), Schneider v. McDaniel, 674 F.3d 1144, 1148–49 (9th Cir. 2012), and the

district court’s dismissal of a § 2254 habeas petition based on procedural default,

Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003).

It is undisputed that Almanza, proceeding pro se, filed an original habeas

petition within AEDPA’s one-year limitations period. Ground three of the original

-2- petition alleged facts related to the ineffectiveness of his trial counsel. Later,

represented by counsel, Almanza filed the instant untimely amended habeas petition.

The amended petition raised, inter alia, claims of ineffective assistance of trial

counsel, ineffective assistance of appellate counsel, and prosecutorial misconduct.

The district court dismissed these claims as untimely and, alternatively, as

procedurally defaulted. This court granted a certificate of appealability on two issues:

(1) whether the additional claims raised in Almanza’s amended habeas petition are

timely, either because Almanza is entitled to equitable tolling or because the claims

relate back to his original petition; and (2) if the claims raised in the amended petition

are timely, whether these claims are procedurally defaulted with no cause and

prejudice established to excuse the default.

1. The district court correctly held that Almanza is not entitled to equitable

tolling. He has not demonstrated that extraordinary circumstances prevented him

from timely filing his amended habeas petition. See Holland v. Florida, 560 U.S. 631,

649 (2010). Indeed, his original petition, filed pro se, was timely.

2. The district court erred by holding that the ineffective assistance of trial

counsel claim asserted in Almanza’s amended petition is untimely, because the claim

relates back to ground three of his timely original habeas petition. See Hebner v.

McGrath, 543 F.3d 1133, 1134 (9th Cir. 2008) (“[A] new claim in an amended

-3- petition relates back to avoid a limitations bar, when the limitations period has run in

the meantime, only when it arises from the same core of operative facts as a claim

contained in the original petition.”).

3. The district court erred by holding that Almanza’s ineffective assistance of

trial counsel claim is procedurally defaulted, because the procedural default is excused

under Martinez v. Ryan, 566 U.S. 1 (2012). To excuse a procedural default under

Martinez, a petitioner must show the following:

(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (alteration in original) (emphasis omitted)

(quoting Martinez, 566 U.S. at 13–18).

It is undisputed that elements three and four are satisfied because, in Arizona,

state post-conviction relief (“PCR”) proceedings are the “initial review proceedings”

for claims of ineffective assistance of trial counsel, and Almanza was required to bring

his ineffective assistance of trial counsel claim in his initial PCR proceeding. See

Ariz. R. Crim. P. 32.4(a) (2014) (requiring that a defendant file notice within 30 days

-4- of the issuance of the mandate by the appellate court or the claims are defaulted); State

v. Spreitz, 39 P.3d 525, 527 (Ariz. 2002) (holding that, under Arizona law, appellate

courts do not consider any ineffective assistance of counsel claims on direct appeal).

And Almanza has demonstrated cause under element two because he was not

represented by counsel during the period during which he could have filed a timely

state PCR notice.

Almanza has also satisfied the first element: he has established that his

ineffective assistance of trial counsel claim is “substantial.” His argument that his

trial counsel was ineffective for failing to impeach, or otherwise object to, the false

testimony of the prosecution’s key witness has “some merit” and is not “wholly

without factual support.” Martinez, 566 U.S. at 14, 16.

4. The district court did not err by dismissing as untimely Almanza’s

ineffective assistance of appellate counsel and prosecutorial misconduct claims, which

were first asserted in his amended petition. As noted, Almanza is not entitled to

equitable tolling, and these claims do not relate back to his original petition.

AFFIRMED in part, REVERSED in part, and REMANDED. The parties

shall bear their own costs on appeal.

-5-

FILED

Almanza v. Shinn, No. 20-16019 APR 4 2022

MOLLY C. DWYER, CLERK

Murguia, Chief Judge, concurring in the judgment: U.S. COURT OF APPEALS

I write separately to discuss the facts of this case as they relate to equitable

tolling. We are presented with the rather novel issue of whether the claims raised in

Fernando Segoviano Almanza’s (“Almanza”) amended habeas petition, filed by

counsel nearly three years after his timely original pro se petition, should be

equitably tolled. I join the majority in holding that the ineffective assistance of trial

counsel claim in the amended petition relates back to a claim raised in the original

petition, rendering the amended claim timely. I also agree that the ineffective

assistance of appellate counsel and prosecutorial misconduct claims raised in the

amended petition—claims central to Almanza’s argument that his petition warrants

habeas relief—are unfortunately untimely because Almanza fails to present evidence

sufficient to demonstrate that he is entitled to equitable tolling.

“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631,

649 (2010) (emphasis added) (quotation marks omitted).

Here, Almanza alleges a domino effect: his state court appellate counsel on

direct review informed him by letter in English that the Arizona Court of Appeals

had affirmed his conviction and sentence, concluding her representation. Almanza—who was initially placed in restrictive housing due to the nature of his

offense—could not read the letter because he is illiterate, and in any event, he could

not understand the letter because it was written in English; Almanza speaks Spanish.

A cellmate did translate the letter for Almanza, but because he was not immediately

aware of any other forms of legal recourse, Almanza filed an untimely notice for

Post-Conviction Relief (“PCR”). Almanza claims that the untimely PCR notice and

subsequent state court proceedings resulting from this deficiency affected his ability

to file a fulsome pro se habeas petition in federal court. He also alleges that he was

periodically denied assistance from Arizona Department of Corrections,

Rehabilitation & Reentry (“ADCRR”) paralegals, whose service is granted to

inmates who are illiterate and non-English speaking.

This court has previously recognized that non-English speaking individuals

seeking equitable tolling may demonstrate extraordinary circumstances when unable

to obtain adequate legal assistance in their primary language. See, e.g., Mendoza v.

Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) (“[W]e conclude that 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.”).

2 The issue here is that Almanza’s appellate attorney satisfied her duty of

notifying him that his appeal had concluded, ending her representation. See Gibbs

v. Legrand, 767 F.3d 879, 886 (9th Cir. 2014) (“Failure to inform a client that his

case has been decided, particularly where that decision implicates the client’s ability

to bring further proceedings and the attorney has committed himself to informing

his client of such a development,” can constitute the extraordinary circumstance of

attorney abandonment) (emphasis in original). And even though counsel did so in

English, Almanza fails to demonstrate how his cellmate’s translation was deficient;

even Mendoza recognizes translation assistance from fellow inmates. See Mendoza,

449 F.3d at 1070. Finally, there exists no record support for Almanza’s allegation

that he was denied translation and paralegal assistance from the ADCRR. To the

contrary, the record demonstrates that Almanza did receive such assistance to timely

file his original habeas petition.

This is not to say that Almanza’s arguments are unworthy of consideration.

Almanza is, after all, a Spanish-speaking person who is also illiterate, and who was

placed in restrictive housing for months while his AEDPA statute of limitations

continued to run. But without record support for his arguments that the translation

and legal services he received were deficient—a particularly difficult hurdle for

someone of his limitations—Almanza fails to sufficiently demonstrate that

“extraordinary circumstances” prevented the timely filing of his habeas petition.

3