Brumm #119863 v. Ryan
Filing
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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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Thomas David Brumm,
Petitioner,
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vs.
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Charles L. Ryan, et al.,
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Respondents.
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No. CV-12-01087-PHX-ROS
ORDER
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On June 27, 2013, Magistrate Judge Steven P. Logan issued a Report and
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Recommendation (“R&R”) recommending the petition for writ of habeas corpus be denied.
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(Doc. 26). Petitioner filed timely objections. For the following reasons, the R&R will be
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adopted in full.
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A district judge “may accept, reject, or modify, in whole or in part, the findings or
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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has
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filed timely objections to the R&R, the district court’s review of the part objected to is to be
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de novo. Id. Petitioner filed timely objections to certain portions of the R&R, meaning the
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Court must review those portions de novo.
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The Magistrate Judge concluded the petition is untimely. Having reviewed the issue
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de novo, the Court agrees. As explained by the Magistrate Judge, the petition was not filed
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within one year of when Petitioner’s conviction became final in 1996. Nor was it filed within
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one year of when Petitioner’s probation was revoked in 2006. Therefore, absent some form
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of tolling, the petition is untimely.
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There are two types of tolling: statutory and equitable. The Magistrate Judge
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concluded statutory tolling does not apply and Petitioner does not object to that conclusion.
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Petitioner does, however, object to the Magistrate Judge’s conclusion that equitable tolling
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does not apply. In objecting, Petitioner avers he learned of his claim in October 2009. (Doc.
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27 at 1). Petitioner does not identify the “extraordinary circumstances” that made it
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“impossible to file [his] petition” between 2009 and when he actually field it in May 2012.
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Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (quotation omitted). In other words,
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even after learning of his claim, Petitioner waited a little less than three years to file his
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petition. In these circumstances, equitable tolling does not apply. Id. (“reasonable diligence”
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is required to invoke equitable tolling).
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Accordingly,
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IT IS ORDERED the Report and Recommendation (Doc. 26) is ADOPTED. The
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Petition for Writ of Habeas Corpus (Doc. 1) is DENIED and DISMISSED WITH
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PREJUDICE. The Clerk of Court shall enter judgment accordingly.
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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in
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forma pauperis on appeal are DENIED because the dismissal of the Petition is justified by
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a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
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DATED this 29th day of July, 2013.
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