Brumm #119863 v. Ryan

Filing 28

ORDER that the 26 Report and Recommendation is ADOPTED. The 1 Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. The Clerk of Court shall enter judgment accordingly. ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED. Signed by Chief Judge Roslyn O Silver on 7/29/2013. (LFIG)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Thomas David Brumm, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-01087-PHX-ROS ORDER 15 16 17 On June 27, 2013, Magistrate Judge Steven P. Logan issued a Report and 18 Recommendation (“R&R”) recommending the petition for writ of habeas corpus be denied. 19 (Doc. 26). Petitioner filed timely objections. For the following reasons, the R&R will be 20 adopted in full. 21 A district judge “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has 23 filed timely objections to the R&R, the district court’s review of the part objected to is to be 24 de novo. Id. Petitioner filed timely objections to certain portions of the R&R, meaning the 25 Court must review those portions de novo. 26 The Magistrate Judge concluded the petition is untimely. Having reviewed the issue 27 de novo, the Court agrees. As explained by the Magistrate Judge, the petition was not filed 28 within one year of when Petitioner’s conviction became final in 1996. Nor was it filed within 1 one year of when Petitioner’s probation was revoked in 2006. Therefore, absent some form 2 of tolling, the petition is untimely. 3 There are two types of tolling: statutory and equitable. The Magistrate Judge 4 concluded statutory tolling does not apply and Petitioner does not object to that conclusion. 5 Petitioner does, however, object to the Magistrate Judge’s conclusion that equitable tolling 6 does not apply. In objecting, Petitioner avers he learned of his claim in October 2009. (Doc. 7 27 at 1). Petitioner does not identify the “extraordinary circumstances” that made it 8 “impossible to file [his] petition” between 2009 and when he actually field it in May 2012. 9 Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (quotation omitted). In other words, 10 even after learning of his claim, Petitioner waited a little less than three years to file his 11 petition. In these circumstances, equitable tolling does not apply. Id. (“reasonable diligence” 12 is required to invoke equitable tolling). 13 Accordingly, 14 IT IS ORDERED the Report and Recommendation (Doc. 26) is ADOPTED. The 15 Petition for Writ of Habeas Corpus (Doc. 1) is DENIED and DISMISSED WITH 16 PREJUDICE. The Clerk of Court shall enter judgment accordingly. 17 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in 18 forma pauperis on appeal are DENIED because the dismissal of the Petition is justified by 19 a plain procedural bar and jurists of reason would not find the procedural ruling debatable. 20 DATED this 29th day of July, 2013. 21 22 23 24 25 26 27 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?