Torrez v. Schriro et al

Filing 15

REPORT AND RECOMMENDATION recommending 1 Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. Signed by Magistrate Judge David K Duncan on 5/14/09. (LSP)

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 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Charles L. Ryan, the Interim Director of the Arizona Department of Corrections, replaces Dora Schriro.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Gregory Richard Torrez, Petitioner, vs. Charles L. Ryan* et al., Respondents.

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No. CIV 08-0952-PHX-NVW (DKD) REPORT AND RECOMMENDATION

TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE: Petitioner Gregory Richard Torrez filed a petition for writ of habeas corpus pursuant to 28 U.S.C.§ 2254 on May 20, 2008, challenging his convictions for one count of seconddegree murder and two counts of aggravated assault, and the trial court's imposition of sentences totaling 32 years. Torrez raises four grounds for habeas relief: (1) denial of his right to a trial on the aggravating factors used to enhance his sentence; (2) denial of his right to have the aggravating factors proved beyond a reasonable doubt; (3) unconstitutional imposition of a sentence beyond that authorized by statute; and (4) the ineffective assistance of counsel. Respondents contend that Torrez's petition is untimely. The court agrees and recommends that his petition be denied and dismissed with prejudice.

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Torrez pleaded guilty on May 30, 2002, and was sentenced on August 7, 2002 (Doc. #12, Exh A-D). Following briefing on his timely Petition for Post-Conviction Relief, the trial court denied his petition on March 4, 2004. His petition for review of the denial of the petition to the Arizona Court of Appeals was denied on July 13, 2005 (Id., Exh E-L). Torrez did not petition for a writ of certiorari in the United States Supreme Court. While his first petition was still pending in the court of appeals, Torrez filed his second Notice of PostConviction Relief in Maricopa County Superior Court on July 27, 2004, and he filed his second petition on March 16, 2005 (Id., Exh M, N). The trial court denied relief on his second petition on May 10, 2005; on August 4, 2006, the Court of Appeals denied review (Id., Exh O-V). On February 21, 2007, the Arizona Supreme Court denied review (Id., Exh W). Torrez filed his federal petition on May 10, 2008 (Doc. #1). In order to be timely filed, Torrez was required to file his federal petition within one year of the time his conviction became final "by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. § 2244(d)(1)(A). However, because Torrez pleaded guilty, he waived the right to seek direct review. He was entitled to bring an "of-right" post-conviction relief proceeding under Rule 32.1 of the Arizona Rules of Criminal Procedure. "The time during which a properly filed application for postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation." See § 2244(d)(2). In addition, the one-year limitations period did not begin to run until the conclusion of that proceeding, the review of that proceeding, "or the expiration of time for seeking such proceeding or review." Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). Torrez's one-year limitations period began running on February 22, 2007, following the Arizona Supreme Court's denial of review in his second post-conviction proceeding. A review of the Maricopa County Superior Court docket indicates that Torrez had nothing pending in state court during the one-year period between February 22, 2007 and February 21, 2008, when that period of

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limitations expired. Therefore, his federal petition, filed 80 days beyond the expiration of the limitations period, is untimely. See § 2244(d)(1)(A).1 Finally, assuming that federal courts have the authority to create equitable exceptions to jurisdictional time limitations set by Congress, see Bowles v. Russell, 551 U.S. 205 (2007), Torrez is not entitled to equitable tolling. He has not shown extraordinary circumstances beyond his control which made it impossible for him to timely file: that he diligently

pursued his rights and that some "extraordinary circumstance stood in his way." Pace v. DiGiguglielmo, 544 U.S. 408, 418 (2005). IT IS THEREFORE RECOMMENDED that Gregory Richard Torrez's petition for writ of habeas corpus be denied and dismissed with prejudice (Doc. #1). 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 ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to 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. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to

In his reply, Torrez mistakenly relies on the rule announced in Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999), extending an additional 90 days to the period of direct review within which a petitioner can file for a writ of certiorari from the United States Supreme Court, whether or not a petitioner seeks such review. Because Torrez waived the right to seek direct review, and sought collateral review, the rules do not entitle him to seek certiorari review of that proceeding. Therefore the extension allowed by Bowen is not one to which he would have been entitled. -3-

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appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure. DATED this 14th day of May, 2009.

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