Madrigal v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Levi E. Madrigal,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-02579-PHX-JJT (MTM)
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
Petitioner Levi E. Madrigal, who is represented by counsel, filed a Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a Memorandum in Support. (Docs. 1,
2.) Petitioner has also filed a Motion for Stay pursuant to Rhines v. Weber, 544 U.S. 269
(2005). (Doc. 8.)
I. SUMMARY OF CONCLUSION
Petitioner was convicted in Yuma County Superior Court, case #CR-2017-00005,
of fourteen counts of sexual exploitation of a minor. He was sentenced to consecutive terms
of imprisonment, totaling 140 years. In his Petition, Petitioner raises two grounds for relief.
However, the Petition is untimely and Petitioner is not entitled to equitable tolling.
Petitioner has also failed to demonstrate actual innocence. Accordingly, the Court will
recommend that the Motion for Stay and Petition for Writ of Habeas Corpus be denied and
dismissed with prejudice.
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II. BACKGROUND
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as
true:1
After receiving a tip that an email contained images of child
pornography, police officers traced the recipient’s internet protocol (“IP”)
address to Madrigal’s residence. Based on that information, police officers
obtained and executed a search warrant on the home (shared by Madrigal, his
mother, and brother), seizing four electronic devices: a desktop computer
(from Madrigal’s bedroom), a tablet, a thumb drive, and a cellular phone
(from Madrigal’s person).
Through forensic analysis, a detective located the images associated
with the suspect email on the computer. He also found: (1) more than 2,000
other images of child pornography on the computer, stored in both the public,
“basic user” profile and the private, “owner” profile; (2) a web browser on
the computer that permitted access to the dark web while blocking IP address
tracing; and (3) eight images of child pornography on the cellular phone.
Comparing the timestamps for the child pornography downloaded to the
computer with mapping data from the cellular phone, and given the absence
of any programs on the computer that permitted remote access, the detective
determined the child pornography was downloaded to the computer only
when Madrigal was in the vicinity of the computer.
State v. Madrigal, 2020 WL 4882439, at *1 (Ariz. Ct. App. Aug. 20, 2020).
Petitioner was charged with 14 counts of sexual exploitation of a minor (with each
count referring to one specific image found on either the cellular phone or computer). Id.
The State also alleged several aggravating factors. Id. After a 12-day trial, a jury found
Petitioner guilty as charged. Id. The jury also found one aggravating circumstance – that
the victim depicted in each image was under 15 years of age. Id. Petitioner was sentenced
to consecutive, mitigated terms of ten years’ imprisonment on each count. Id.
///
1 The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 28 U.S.C.
§ 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting
argument that statement of facts in state appellate court’s opinion should not be afforded
the presumption of correctness).
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B. Direct Appeal
Petitioner timely appealed his convictions and sentences challenging the superior
court’s admission of evidence of uncharged acts and arguing that the superior court
improperly denied both his motion for mistrial and his request for a curative instruction,
each predicated on a claim of prosecutorial misconduct. Id. On August 20, 2020, the
Arizona Court of Appeals affirmed Petitioner’s convictions and sentences. Id. Petitioner
did not seek further review.
C. Post-Conviction Relief Proceedings
On October 22, 2020, Petitioner filed a notice of post-conviction relief (“PCR”).
(Doc. 7-1 at 133; Exh. E.) On August 11, 2021, Petitioner, through counsel, filed a PCR
petition alleging numerous claims of ineffective assistance of counsel. (Doc. 7-1 at 138;
Exh. F.) Petitioner subsequently filed an amended PCR petition on July 29, 2022. (Doc. 7-
3 at 4; Exh. I.) On March 6, 2023, the trial court dismissed the PCR petition, addressing
the claims set forth in both petitions. (Doc. 7-4 at 2; Exh. L.) On December 12, 2023, the
Arizona Court of Appeals granted review, but denied relief. State v. Madrigal, 2023 WL
8596298, at *1 (Ariz. Ct. App. Dec. 12, 2023). On July 22, 2024, the Arizona Supreme
Court denied review. (Doc. 1-2 at 50; Exh. 9.)
III. PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS
In his Petition, Petitioner raises two grounds for relief. In Ground One, Petitioner
alleges his sentence violates the Eighth Amendment. Petitioner states “Arizona’s
sentencing statute requiring consecutive flat sentences for each count is unconstitutional
where a first-time offender for possession only of child sexual assault material was
sentenced to a term of 140 total years in prison with no possibility for release.” (Doc. 1 at
6.) In Ground Two, Petitioner asserts that his appellate counsel was ineffective for failing
to raise the Eighth Amendment claim on direct appeal. (Doc. 1 at 8.)
Respondents have filed a Limited Answer. (Doc. 7.) Petitioner has not filed a Reply.
Instead, Petitioner filed Motion for Stay seeking to stay this matter so he can “seek a
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successive collateral review” of his claims for relief that were not presented in state court.
(Doc. 8.) The Motion is fully briefed and will be addressed herein.
IV. STATUTE OF LIMITATIONS
A. Time Calculation
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace
v. DiGuglielmo, 544 U.S. 408, 410 (2005); see 28 U.S.C. § 2244(d)(1). In most cases, the
limitations period runs from the date “the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.”2 28 U.S.C. §
2244(d)(1)(A); see Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Further, “‘[A] properly filed application for State post-conviction or other collateral
review’ tolls AEDPA’s statute of limitations for the pendency of the state court
proceedings.” Curiel v. Miller, 830 F.3d 864, 868 (9th Cir. 2016) (quoting 28 U.S.C. §
2244(d)(2)). To toll the statute, the application must have been “‘properly filed,’” meaning
that it complied with “the applicable laws and rules governing filings,” including “time
limits upon its delivery, the court and office in which it must be lodged, and the requisite
filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Here, the Court finds that Petitioner’s habeas petition is untimely. After trial and
sentencing, Petitioner appealed his convictions and sentences to the Arizona Court of
Appeals. The Court of Appeals affirmed Petitioner’s convictions and sentences on August
20, 2020. Petitioner’s convictions and sentences became final 30 days later – on September
21, 2020. See, e.g., Hemmerle v. Schriro, 495 F.3d 1609, 1073-74 (9th Cir. 2007) (in
Arizona, a direct appeal is final upon the expiration of the time for seeking review of the
court of appeals’ decision in the Arizona Supreme Court, rather than upon the issuance of
the mandate); see Ariz. R. Crim. P. 31.21(b) (an Arizona litigant must file a petition for
2 The limitations period may also be triggered by other events not relevant here. See 28
U.S.C. §§ 2244(d)(1)(B) (state-created impediment to filing), (d)(1)(C) (newly recognized
constitutional right), (d)(1)(D) (when the basis for a claim became apparent).
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review by the Arizona Supreme Court within 30 days after the court of appeals files its
decision).
The statute of limitations began running the next day and ran for 31 days or until
October 22, 2020, when Petitioner initiated post-conviction relief proceedings. See Porter
v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“the period between when direct review
becomes final and the filing of a state habeas petition is not tolled”); see also Isley v.
Arizona Dept. of Corr., 383 F.3d 1054, 1055-56 (9th Cir. 2004) (a timely PCR notice filed
pursuant to Ariz. Crim. P. 32.4 tolls the running of the statute of limitations). Petitioner’s
PCR proceedings remained pending until July 22, 2024, when the Arizona Supreme Court
denied Petitioner’s petition for review. The statute of limitations began running again the
next day and expired 334 days later – on June 23, 2025. Petitioner did not initiate his habeas
proceedings until July 21, 2025. Accordingly, absent equitable tolling, his Petition is
untimely.
B. Equitable Tolling
“A petitioner who seeks equitable tolling of AEDPA’s 1-year filing deadline must
show that (1) some ‘extraordinary circumstance’ prevented him from filing on time, and
(2) he has diligently pursued his rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015)
(citing Holland v. Florida, 560 U.S. 631, 649 (2010)). The petitioner bears the burden of
showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d
1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces,
rather than a petitioner’s lack of diligence, account for the failure to file a timely habeas
action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be
rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011
(9th Cir. 2009). A petitioner must 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.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). “Indeed, ‘the
threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the
exceptions swallow the rule.’” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)
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(citation omitted).
Petitioner has not filed a Reply to Respondents’ Answer, but he addresses the
timeliness of his Petition in his Motion for Stay and Reply. (Docs. 8, 10.) Specifically,
Petitioner contends his Petition is timely arguing that his convictions and sentences became
final when the Court of Appeals issued the Mandate. Petitioner states that although the
Court of Appeals issued its decision on his direct appeal on August 20, 2020, the Mandate
was not issued until October 21, 2020.
The Court is not persuaded. The Ninth Circuit’s decision in Hemmerle v. Schriro
directly answered the question of when a direct appeal in Arizona becomes final, holding
that a direct appeal is final upon the expiration of the time for seeking review of the court
of appeals’ decision in the Arizona Supreme Court, rather than upon the issuance of the
mandate. 495 F.3d at 1073-74.
Petitioner further argues for equitable tolling stating that he was incarcerated
without knowledge or adequate resources for preparing a petition on his own and he relied
on outside family to seek and retain counsel to represent him in the filing. However,
Petitioner provides no explanation for why he waited over a year to file his habeas petition
and the lack of legal assistance available to inmates, lack of legal training, and unfamiliarity
with the law cannot excuse his failure to comply with the statute of limitations. A “lack of
legal knowledge, and need for some assistance to prepare a habeas petition are not
extraordinary circumstances to warrant equitable tolling of an untimely habeas petition.”
Baker v. Cal. Dep’t. of Corr., 484 Fed. Appx. 130, 131, 2012 WL 2045962, at *1 (9th Cir.
2012); 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.”); Trevizo v. Borders, 2018 WL 3017547, at *12 (E.D. Cal.
June 14, 2018) (“[A] lack of legal assistance or lack of adequate legal assistance is not
grounds for equitable tolling, because there is no right to legal assistance in post-conviction
relief.”).
Furthermore, to the extent Petitioner claims that he relied on counsel’s time
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calculation, “[a]lthough an attorney’s behavior can establish the extraordinary
circumstances required for equitable tolling, mere negligence or professional malpractice
is insufficient.” Hunter v. Galaza, 366 Fed. Appx. 766, 767, 2010 WL 582674, at *1 (9th
Cir. 2010) (citing Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)). A “‘garden
variety claim of excusable neglect,’ ... such as a simple ‘miscalculation’ that leads a lawyer
to miss a filing deadline ... does not warrant equitable tolling.” Holland, 560 U.S. at 651-
52 (internal citations omitted). Rather, the attorney’s misconduct must rise to the level of
extraordinary circumstances. Id. “An unadorned failure to advise about a limitations period
would, at best, be simple negligence.” Holeman v. Ryan, 2013 WL 3716603, at *10 (D.
Ariz. Jul. 15, 2013); cf. Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003) (applying
equitable tolling when petitioner’s counsel, who was hired almost a year before the
AEDPA deadline, did not take any steps to prepare the § 2254 petition, did not respond to
petitioner’s numerous letters and phone calls, and withheld petitioner’s file for over two
months after the limitations period expired); Holland, 560 U.S. at 651-53 (discussing
potential for finding extraordinary circumstances when counsel misinformed petitioner
about the AEDPA deadline, failed to advise petitioner that his state appeals had concluded,
and failed to communicate with petitioner over period of years despite petitioner’s repeated
inquires).
Here, the record reflects that Petitioner was not abandoned by his attorney, and there
is no allegation that counsel failed to communicate with Petitioner or failed to respond to
Petitioner’s inquiries regarding his post-conviction relief proceedings. Nor can it be said
that Petitioner was left without functioning counsel. Instead, the record demonstrates the
failure to properly calculate or comply with filing deadlines. This is nothing more than
negligence. Therefore, the Court finds that counsel’s alleged failures in this case do not
constitute an extraordinary circumstance that stood in the way of Petitioner filing a timely
§ 2254 habeas petition and do not warrant equitable tolling. See, e.g., Randle v. Crawford,
604 F.3d 1047, 1058 (9th Cir. 2010) (“To the extent that his counsel’s negligence in
miscalculating the filing deadlines in his state proceedings resulted in Randle also missing
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the federal deadline, we have held that an attorney’s negligence in calculating the
limitations period for a habeas petition does not constitute an ‘extraordinary circumstance’
warranting equitable tolling.”); Maples v. Thomas, 565 U.S. 266, 282 (2012) (restating
“that an attorney’s negligence, for example, miscalculating a filing deadline, does not
provide a basis for tolling a statutory time limit”).
Thus, Petitioner has failed to meet his burden of demonstrating extraordinary
circumstances that would justify equitable tolling.
C. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. §
2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas
petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S.
383, 398 (2013). To establish a “credible” claim of actual innocence, a petitioner must
present “new reliable evidence” and “show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S.
298, 324, 327 (1995). See also Jones v. Taylor, 763 F.3d 1242, 1247 (9th Cir. 2014) (“In
order to pass through the Schlup actual innocence gateway, a petitioner must demonstrate
that in light of new evidence, it is more likely than not that no reasonable juror would have
found the petitioner guilty beyond a reasonable doubt.” (cleaned up)).
Here, Petitioner does not argue actual innocence. In fact, in his “requested remedy,”
Petitioner states that “the state’s sentencing scheme related to Petitioner’s charges has led
to his continued incarceration under an unconstitutional sentence.” Petitioner requests that
this matter be remanded for re-sentencing. Accordingly, Petitioner has failed to establish a
claim of actual innocence excusing his untimely filing.
V. MOTION FOR STAY
On October 21, 2025, Petitioner filed Motion for Stay seeking to stay this matter so
he can “seek a successive collateral review” of his claims for relief that were not presented
in state court. (Doc. 8.) Petitioner contends a stay is warranted in this case in light of a
newly decided Arizona Supreme Court case (State v. Traverso, 2025 WL 2699486 (Ariz.
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Sept. 23, 2025)) which he contends “allow[s] convicted defendants to bring successive
petitions for post-conviction relief on grounds of ineffective assistance of counsel without
suffering a procedural preclusion.” (Doc. 8.) Respondents object to a stay claiming that
Traverso does not support Petitioner’s contention that he will not be precluded from raising
his currently unexhausted IAC claim and that regardless of any further exhaustion of state
court remedies, the Petition is untimely and a stay would be futile. (Doc. 9.)
District courts have discretion to stay a habeas petition when it contains unexhausted
claims. Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). “Stay and abeyance [is] available
only in limited circumstances.” Rhines v. Weber, 544 U.S. at 277. District courts must use
their discretion sparingly, because “routinely granting stays would undermine the
AEDPA’s goals of encouraging finality and streamlining federal habeas proceedings.”
Blake v. Baker, 745 F.3d 977, 981-82 (9th Cir. 2014). A district court abuses its discretion
if it grants a stay when a petitioner’s unexhausted claims are plainly meritless. Rhines, 544
U.S. at 277. Moreover, there is no purpose to stay and abey an untimely federal habeas
corpus petition in order to exhaust claims in state court because to do so could not cure a
petitioner’s failure to comply with AEDPA’s statute of limitations. See Jordan v. Ryan,
No. CV 11-0210-PHX-JAT, 2011 WL 4101517, at *4 (D. Ariz. Sept. 14, 2011).
As the Court has explained, Petitioner initiated habeas corpus proceedings after the
limitations period expired. Petitioner fails to demonstrate that equitable tolling applies, and
he has not met his burden to establish actual innocence excusing his failure to file a timely
habeas petition. Because the Court concludes that the Petition is untimely, a stay and
abeyance would be futile because Petitioner is unable to cure his failure to comply with the
AEDPA’s statute of limitations. Jordan, 2011 WL 4101517, at *4 (“Furthermore, the
Petition in this case was untimely, and the granting of Petitioner’s motion for stay and
abeyance would not overcome his failure to meet the statute of limitations.”). Accordingly,
the Court will recommend that Petitioner’s Motion for Stay be denied.
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VI. CONCLUSION
Based on the above analysis, the Court finds that Petitioner’s Petition for Writ of
Habeas Corpus is untimely and further finds that a stay and abeyance would be futile.
Accordingly,
IT IS THEREFORE RECOMMENDED that the 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 Petitioner’s Motion to Stay (Doc. 8) be
DENIED.
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 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), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
parties shall have 14 days from the date of service of a copy of this Report and
Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
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Failure to timely 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 to timely 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 of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 6th day of March, 2026.
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