Bomar v. Schriro et al

Filing 19

ORDER adopting 16 Report and Recommendations and the Petition for Writ of Habeas Corpus 1 is DENIED and DISMISSED WITH PREJUDICE. The Clerk of Court shall close this case. Signed by Judge Roslyn O Silver on 09/11/08.(DNH)

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 On August 20, 2008, Magistrate Judge Lawrence O. Anderson filed a Report and Recommendation recommending Petitioner's Petition for Writ of Habeas Corpus be denied (Doc. 16). For the reasons below, the report and recommendation will be adopted. Background On January 29, 2001 Petitioner pled guilty to first-degree murder in Maricopa County, Arizona and, on March 2, 2001, a state trial judge sentenced him to life imprisonment without the possibility of parole. (Resp't Ex. D). On September 26, 2006, Petitioner filed a petition for post-conviction relief in Maricopa County Superior Court, pursuant to Arizona. R. Crim. P. 32, and alleged four grounds for relief: (1) Petitioner's trial counsel was ineffective in violation of the Fifth and Sixth Amendments of the U.S. Constitution; (2) the prosecutor in Petitioner's case committed misconduct in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution; (3) Petitioner's sentence was cruel and unusual in vs. Dora B. Schriro, et al., Respondents. Eric Jermall Bomar, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) No. CV-08-769-PHX-ROS ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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violation of the Eighth Amendment of the U.S. Constitution; and (4) Petitioner's sentence was "illegal" under the Supreme Court decisions "Apprendi [and] Blakely." (Resp't Ex. H). On October 17, 2006, the Superior Court dismissed Petitioner's petition as untimely. (Resp't Ex. I). On November 31, 2006, Petitioner filed a petition for review before Division One of the Arizona Court of Appeals, which denied review. (Resp't Ex. J, K). In his petition for writ of habeas corpus filed with this Court on April 22, 2008, Petitioner sought relief pursuant to grounds 1-3 listed above. Petitioner also alleged the state unconstitutionally delayed his trial, the state court convicted him under an unconstitutionally vague statute, and judicial bias contributed to his conviction, among other charges. The Arizona Attorney General's Office filed a response, with exhibits, on July 21, 2008 and, on August 20, 2008, a Magistrate Judge recommended the dismissal of Petitioner's habeas application for untimeliness. On September 4, 2008, Petitioner, filing an objection to the Magistrate's report and recommendation, claimed extraordinary circumstances, misrepresentation on the part of his criminal trial attorney, excused the untimeliness of his habeas application.. Standard A "district judge may refer dispositive pretrial motions and petitions for writ of habeas corpus to a magistrate, who shall conduct appropriate proceedings and recommend dispositions." Thomas v. Arn, 474 U.S. 140, 141 (1985); see 28 U.S.C. § 636(b)(1)(B); Estate of Connors v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party "may serve and file written objections" to the Magistrate's report and recommendation. 28 U.S.C. § 636(b)(1). "A judge of the court shall make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made." Id. A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an inmate in state custody cannot file an application for writ of habeas corpus more than one

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year from "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). Discussion After a de novo review of the record, the Court will adopt the Magistrate Judge's report

5 and recommendation. Pleading guilty to first degree murder, Petitioner waived his right to 6 seek a direct appeal and had 90 days (May 31, 2001) to seek post-conviction relief in state 7 court. See Ariz. R. Crim. P. 17.1(e), 32.1, 32.4(a). When Petitioner failed to apply for post8 conviction relief within 90 days of his plea, the AEDPA statute of limitations started to run 9 and expired on June 1, 2002. See Summers v. Schriro, 481 F.3d 710, 716-17 (9th Cir. 2007). 10 Once the AEDPA statute of limitation expired, Petitioner's subsequently filed petition for 11 state post-conviction relief, filed almost six years after the limitation had run, neither revived 12 nor tolled the limitation period. See Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Nor 13 do Plaintiff's circumstances suggest that equitable tolling of the limitation was appropriate. 14 See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (habeas petitioner's lack of 15 legal experience or assistance is not an extraordinary circumstance to justify equitable tolling 16 of the AEDPA one-year filing requirement); Marsh v. Soares, 223 F.3d 1217, 1220-21 (9th 17 Cir. 2000) (incarceration and its attendant hardships do not qualify as an extraordinary 18 circumstance); Pace v. DiGuglielmo, 544 U.S. 408, 418-19 (2005) (diligence is lacking and 19 equitable tolling is inappropriate when an inmate waits for years to assert his state post20 conviction and federal habeas corpus rights). Although Petitioner attempts to justify his 21 failure to file a timely habeas petition with his trial counsel's alleged failure to submit a timely 22 petition for post-conviction relief in state court, the Court sees no connection between the two 23 events. 24 25 26 27 Accordingly, 28 -3-

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IT IS ORDERED the Report and Recommendation (Doc. 16) is ADOPTED and the

2 Petition for Writ of Habeas Corpus (Doc. 1) is DENIED and DISMISSED WITH 3 PREJUDICE. The Clerk of Court shall close this case. 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 -4DATED this 11th day of September, 2008.