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)

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one year of when Petitioner’s probation was revoked in 2006.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-