Lockwood v. Ryan et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION, the 14 Report and Recommendation is adopted; the petiton for a writ of habeas corpus is denied; the Clerk shall enter judgment accordingly; a Certificate of Appealability is denied, dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Chief Judge Roslyn O Silver on 1/30/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl Ray Lockwood,
Petitioner,

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vs.

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Charles Ryan, et al.,
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Respondents.
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No. CV-12-01440-PHX-ROS
ORDER

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On July 3, 2012, Petitioner Carl Ray Lockwood filed a petition for writ of habeas

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corpus. (Doc. 1). On December 3, 2012, Magistrate Judge Michelle H. Burns issued a

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Report and Recommendation (“R&R”) recommending the petition be denied as untimely.

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Petitioner filed objections to the R&R. (Doc. 17).

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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 magistrate judge’s report and recommendations, the district

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court’s review of the part objected to is to be de novo. Id. Generally, objections must be

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specific. Fed. R. Civ. P. 72(b)(2). And “general, non-specific objections” are not sufficient

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to require the District Court “conduct de novo review of the entire R & R.” Sullivan v.

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Schriro, 2006 WL 1516005 (D. Ariz.).

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A “petition for writ of habeas corpus ordinarily must be filed within one year after the

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state court judgment becomes final by the conclusion of direct review or the expiration of the

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time to seek direct review.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). This one-

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year clock is subject to statutory and equitable tolling. Wood v. Milyard, 132 S. Ct. 1826,

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1831 (2012). As explained in the R&R, Petitioner’s conviction became final on August 24,

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2002. Thus, Petitioner should have filed his petition no later than August 25, 2003. Absent

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statutory or equitable tolling, the petition is well outside the permissible time frame.

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The application of statutory tolling is straightforward. Petitioner did not have any

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form of request for post-conviction relief pending in state court between August 2002 and

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November 2005. Petitioner’s filings in state court after the one-year period expired cannot

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revive the federal limitations period. Accordingly, there is no basis for statutory tolling in

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this case.

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Equitable tolling is appropriate when a petitioner can show “extraordinary

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circumstances were the cause of an untimely filing.” Ford v. Gonzalez, 683 F.3d 1230, 1237

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(9th Cir. 2012). In an attempt to establish equitable tolling, Petitioner argues he had limited

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legal resources and lacked representation. Such circumstances are not sufficient to justify

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equitable tolling. See, e.g., Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (lack

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of legal sophistication is not sufficient to warrant equitable tolling).

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Finally, the Court notes that even if it were to reach the merits of Petitioner’s claim,

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he would not be entitled to relief. The sole basis on which Petitioner seeks relief is that a

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sentence of lifetime probation constitutes cruel and unusual punishment. The United States

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Supreme Court has established “gross disproportionality ” as the relevant determination when

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assessing inappropriate sentencing claims. Lockyer v. Andrade, 538 U.S. 63, 72 (2003).

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Imposing a sentence of lifetime probation for an individual who pled guilty to sexual conduct

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with a minor and attempted sexual conduct with a minor was not grossly disproportionate.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 14) is ADOPTED. The

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petition for a writ of habeas corpus is DENIED. The Clerk shall enter judgment accordingly.

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IT IS FURTHER ORDERED a Certificate of Appealability is DENIED. Dismissal

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of the petition is justified by a plain procedural bar and jurists of reason would not find the

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ruling debatable.

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DATED this 30th day of January, 2013.

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