4:25-cv-00649•Aleman-Rodriguez #341173 v. Thornell et al
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. ) ) ) ) ) ) ) ) ) ) ) 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
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - “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 Mar. 15, 2021) (unpublished).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
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - 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 Case 4:25-cv-00649-AMM Document 10 Filed 06/01/26 Page 3 of 8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - 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; Case 4:25-cv-00649-AMM Document 10 Filed 06/01/26 Page 4 of 8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - (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.). Case 4:25-cv-00649-AMM Document 10 Filed 06/01/26 Page 5 of 8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 - 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. Case 4:25-cv-00649-AMM Document 10 Filed 06/01/26 Page 6 of 8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 - 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
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 8 - 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
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