Aleman-Rodriguez #341173 v. Thornell et al

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1 The petition was placed in the prison mailing system on this day. Doc. 1, p. 11; see Melville
v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (“[T]he prison mailbox rule similarly applies to pro se
federal habeas petitions.”).
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jose Javier Aleman-Rodriguez,
Petitioner,
vs.
Ryan Thornell; et al.,
Respondents.
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CV 25-00649-TUC-AMM (MAA)
REPORT AND RECOMMENDATION
Pending before the court is a petition for writ of habeas corpus, constructively1 filed on
November 23, 2025, by Jose Javier Aleman-Rodriguez, an inmate currently held in the Arizona
State Prison Complex in Eloy, Arizona. Petition, Doc. 1.
Pursuant to the Rules of Practice of this court, the action was referred to the Magistrate
Judge for a report and recommendation. Doc. 6.
The Magistrate Judge recommends that the District Court, after its independent review
of the record, enter an order dismissing the petition because Aleman-Rodriguez’s claims are
time-barred. Doc. 1.
Summary of the Case
Case 4:25-cv-00649-AMM Document 10 Filed 06/01/26 Page 1 of 8

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“Jose Aleman-Rodriguez was convicted of first-degree murder and sentenced to a term
of natural life in prison.” State v. Aleman-Rodriguez, 2021 WL 972962, at *1 (Ariz. Ct. App.
Mar. 15, 2021) (unpublished). At trial, the following evidence was presented:
In November 2012, a police officer was dispatched to conduct a welfare check at
a duplex in Tucson. Through a locked security door, he could see a person lying
face down and motionless on the living room floor, covered by a blanket. After
police forced their way in, they discovered that the man was dead. The victim
appeared to have massive head injuries, and his head and upper body were
covered with blood.
* 	* 	*
The investigation eventually led police to Aleman-Rodriguez. Police collected a
DNA sample from him and compared his DNA profile to DNA samples collected
from the scene. Although in an initial interview he denied he had ever been to the
duplex and claimed he did not know the victim, Aleman-Rodriguez’s DNA
profile matched numerous samples, including samples of the blood on the
hammer, kitchen sink, freezer, pliers, bleach bottle, and a cabinet door in the
bedroom. The sample taken from the blood on the kitchen sink faucet also
contained 	DNA 	matching 	the 	victim’s. 	When 	police 	later 	confronted
Aleman-Rodriguez with the DNA evidence, he admitted he had been at the crime
scene but denied that he was the killer, instead claiming that the home had been
invaded by robbers while he was there.
State v. Aleman-Rodriguez, 2021 WL 972962, at *1 (Ariz. Ct. App. Mar. 15, 2021).
“Aleman-Rodriguez testified that he and others were mules who brought marijuana over
the border and that they were brought to [the victim’s] house to drop off the marijuana.” Doc.
9, p. 139. He explained that while he and the other mules were still at the victim’s house, “four
masked men with knives had invaded the home, and one of them cut Aleman-Rodriguez’s
hand.” Doc. 9, p. 139; State v. Aleman-Rodriguez, 2021 WL 972962, at *3 (Ariz. Ct. App. Mar.
15, 2021). He stated that he “thought the men were going to kill him and others in the home,
but except for the victim all escaped.” 	State v. Aleman-Rodriguez, 2021 WL 972962, at *3
(Ariz. Ct. App. Mar. 15, 2021). “He [further] testified that the victim had been drunk and slept
through the invasion.” Id. “On cross-examination, the state exposed numerous instances in
which Aleman-Rodriguez’s testimony was at odds with the physical evidence and his two
statements to police.” Id. At the conclusion of the trial, Aleman-Rodriguez “was convicted of
first-degree murder and sentenced to a term of natural life in prison.” Id.
Case 4:25-cv-00649-AMM Document 10 Filed 06/01/26 Page 2 of 8

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On direct appeal, Aleman-Rodriguez argued that “(1) insufficient evidence supported his
conviction, and (2) the trial court erroneously precluded evidence of the victim’s drug and
alcohol use just before his death.” Id. The Arizona Court of Appeals affirmed his conviction
and sentence on March 15, 2021. Id.
Aleman-Rodriguez filed a petition for review with the Arizona Supreme Court on July
21, 2021. Doc. 9, p. 134. The Arizona Supreme Court denied review on March 24, 2022. Doc.
9, p. 136. Aleman-Rodriguez did not file a petition for certiorari in the United States Supreme
Court. Doc. 1, p. 3; Doc. 9, p. 8.
Aleman-Rodriguez subsequently filed a Notice of Post-Conviction Relief and counsel
was appointed. 	Doc. 9, p. 140. On October 20, 2022, after numerous extensions, post-
conviction relief counsel filed notice that she could find no meritorious issues and asked that
the court give Aleman-Rodriguez time to file a petition pro se. 	Doc. 9, pp. 8, 138-141.
Aleman-Rodriguez filed a pro se Notice of Post-Conviction Relief on December 2, 2022. Doc.
9, p. 143. He filed his pro se petition on February 14, 2023. Doc. 9, p. 146. “He argued that
trial counsel had been ineffective in failing to prepare him to testify, advising him to reject a
plea, advising him to consent to DNA testing, failing to present expert testimony regarding the
victim’s blood alcohol content and drug use, and failing to move for a new trial.” 	State v.
Aleman-Rodriguez, 2024 WL 326654, at *1 (Ariz. Ct. App. Jan. 29, 2024) (unpublished). “He
further argued appellate counsel had been ineffective for failing to raise trial counsel's
ineffectiveness in his direct appeal.” Id. The trial court denied the petition on May 31, 2023.
Doc. 9, pp. 205-210.
Aleman-Rodriguez filed a petition for review with the Arizona Court of Appeals. State
v. Aleman-Rodriguez, 2024 WL 326654, at *1 (Ariz. Ct. App. Jan. 29, 2024). 	He argued that
“trial counsel was ineffective in failing to investigate ‘circumstances to the DNA evidence, ’”
such that “a door knob at the crime scene was not tested for fingerprints and that he lacked
motive and energy to kill the victim.” State v. Aleman-Rodriguez, 2024 WL 326654, at *1 (Ariz.
Ct. App. Jan. 29, 2024). 	He also argued that “trial counsel failed to object to a third-party
culpability instruction.” Id. Finally, he argued that “counsel should have requested a ‘mere
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presence’ instruction.” Id. The Arizona Court of Appeals held that these issues were not raised
below and could not be raised on review. Id. In the alternative, the court found that Aleman-
Rodriguez was not entitled to relief. Id. The Arizona Court of Appeals denied relief on January
29, 2024. Id. Aleman-Rodriguez did not file a petition for review with the Arizona Supreme
Court. Doc. 1, p. 5; Doc. 9, p. 7.
Aleman-Rodriguez constructively filed the pending petition pursuant to 28 U.S.C. § 2254
on November 25, 2025. Doc. 1, p. 11. He claims (1) the evidence was insufficient “to prove
beyond mere presence and certainly not premeditation,” and (2) trial counsel was ineffective
by “having the defendant take the stand” without adequate preparation, “advising the defendant
to consent to DNA testing,” failing “to consult with an expert” and present expert testimony on
“BAC and drug use,” failing “to file a motion for a new trial,” and failing “to allow defendant
to plead guilty versus stand trial.” Doc. 1.
The respondents filed an answer on April 22, 2026, in which they argue, among other
things, that Aleman-Rodriguez’s claims are untimely. Doc. 9. Aleman-Rodriguez did not file
a reply.
The court finds that Aleman-Rodriguez’s claims are time-barred. The court does not
reach the respondents’ alternate arguments.
Discussion
A petition for writ of habeas corpus must be filed within the applicable limitation period
or it will be dismissed. The statute reads in pertinent part as follows:
(1) 	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;
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(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.
(2) 	The 	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 any period of
limitation under this subsection.
28 U.S.C. § 2244(d). The one-year limitation period applies to each claim in a habeas corpus
petition on an individual basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
None of Aleman-Rodriguez’s claims rely on a newly recognized constitutional right. See
28 U.S.C. § 2244(d)(1)(C). 	He does not argue that an impediment created by state action
prevented him from bringing his petition. See 28 U.S.C. § 2244(d)(1)(B). The factual predicate
underlying all claims would have been known by the time Aleman-Rodriguez filed his direct
appeal. See 28 U.S.C. § 2244(d)(1)(D). The limitation period for all claims, therefore, was
triggered 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).
On direct appeal, the Arizona Court of Appeals affirmed Aleman-Rodriguez’s conviction
and sentence on March 15, 2021. State v. Aleman-Rodriguez, 2021 WL 972962 (Ariz. Ct. App.
Mar. 15, 2021). The Arizona Supreme Court denied review on March 24, 2022. Doc. 9, p. 136.
Aleman-Rodriguez then had 90 days to petition the U.S. Supreme Court for review according
to Sup. Ct. R. 13. The 90th day was Wednesday, June 22, 2022. Aleman-Rodriguez’s judgment
became final on that day, when he failed to file a petition for review with the U.S. Supreme
Court. 28 U.S.C. § 2244(d)(1)(A). The one-year limitation period did not immediately begin
to run, however, because Aleman-Rodriguez’s application for post-conviction review (“PCR”)
was pending and the period was statutorily tolled. 28 U.S.C. § 2244(d)(2); see Doc. 9, pp. 8,
252 (On June 12, 2022, PCR counsel filed a motion for extension of the deadline for filing the
PCR petition.).
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The trial court eventually denied Aleman-Rodriguez’s pro se PCR petition on May 31,
2023. Doc. 9, pp. 205-210. The Arizona Court of Appeals granted review and denied relief on
January 29, 2024. State v. Aleman-Rodriguez, 2024 WL 326654, at *1 (Ariz. Ct. App. Jan. 29,
2024). Aleman-Rodriguez did not file a petition for review with the Arizona Supreme Court.
Doc. 9, p. 7. Statutory tolling ended when the PCR proceedings were no longer pending, which
was when Aleman-Rodriguez failed to file a petition for review with the Arizona Supreme
Court by the 30-day deadline, Wednesday, February 28, 2024. Doc. 9, p. 8 (citing Ariz. R.
Crim. P. 31.21(b)(2)(A) (30-day deadline), Ariz. R. Crim. P. 32.16(l) (Rule 31.21 applies to
PCR petitions for review)); see also Melville v. Shinn, 68 F.4th 1154, 1160 (9th Cir. 2023) (“[A]
state post-conviction relief application is pending . . . until the application has achieved final
resolution through the State’s post-conviction procedures . . . .”) (punctuation modified).
The one-year limitation period began running the next day and ended on February 28,
2025. 	Aleman-Rodriguez constructively filed the pending petition on November 23, 2025.
Doc. 1, p. 11. It is time-barred.
On the issue of timeliness, Aleman-Rodriguez states in his petition as follows: “The
defendant does not know English, does not have access to any legal material in his native
tongue, and was not informed of this option of appeal in a timely manner.” Doc. 1, p. 11. It
appears that Aleman-Rodriguez is arguing that he is entitled to equitable tolling of the limitation
period.
“[A] petitioner is entitled to equitable tolling [of the limitation period] 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.” Lakey v. Hickman, 633 F.3d 782, 786 (9 th Cir.
2011) (punctuation modified), cert. denied, 131 S.Ct. 3039 (2011). 	“The petitioner must
additionally show that the extraordinary circumstances were the cause of his untimeliness and
that the extraordinary circumstances made it impossible to file a petition on time.” Id. “The
high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule.”
Id.
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Aleman-Rodriguez is not entitled to equitable tolling. He has made no showing that he
has been pursuing his rights diligently. 	Moreover, he has not shown that an “extraordinary
circumstance stood in his way and prevented timely filing.” Lakey v. Hickman, 633 F.3d 782,
786 (9th Cir. 2011).
In his petition, Aleman-Rodriguez maintains that he “does not know English, [and] does
not have access to any legal material in his native tongue.” Doc. 1, p. 11. He was, however,
able to file a pro se post-conviction relief petition and a pro se petition for review. It does not
appear that his difficulties with English have prevented him from accessing the courts in the
past. See, e.g., Alvarez v. Horel, 2009 WL 723848, at *5 (N.D. Cal. Mar. 18, 2009) (Equitable
tolling was inappropriate where “Petitioner’s alleged lack of proficiency in English has not kept
him from accessing the courts.”).
Aleman-Rodriguez states that he was not timely informed about his right to file a habeas
petition, but he does not specify who, if anyone, had a duty to tell him. He might be arguing
that his state-appointed post-conviction relief counsel dropped the ball, but even if this were
true, he has not identified an “extraordinary circumstance.” Counsel’s alleged failure was at
most simple negligence. And, simple attorney negligence is not an extraordinary circumstance.
See Lawrence v. Florida, 549 U.S. 327, 336–37, 127 S. Ct. 1079, 1085 (2007) 	(“Attorney
miscalculation is simply not sufficient to warrant equitable tolling, particularly in the
postconviction context where prisoners have no constitutional right to counsel.”). 	The
petitioner’s lack of legal knowledge is not an “extraordinary circumstance” that justifies
equitable tolling. See 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.”).
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review
of the record, enter an order dismissing the petition for writ of habeas corpus. Doc. 1. All of
Aleman-Rodriguez’s claims are time-barred.
Case 4:25-cv-00649-AMM Document 10 Filed 06/01/26 Page 7 of 8

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within
14 days of being served with a copy of this report and recommendation. If objections are not
timely filed, they may be deemed waived. The Local Rules permit a response to an objection.
They do not permit a reply to a response without permission from the District Court.
DATED this 1 st day of June, 2025.
Case 4:25-cv-00649-AMM Document 10 Filed 06/01/26 Page 8 of 8