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)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Carl Ray Lockwood, Petitioner, 10 11 vs. 12 Charles Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-01440-PHX-ROS ORDER 15 16 On July 3, 2012, Petitioner Carl Ray Lockwood filed a petition for writ of habeas 17 corpus. (Doc. 1). On December 3, 2012, Magistrate Judge Michelle H. Burns issued a 18 Report and Recommendation (“R&R”) recommending the petition be denied as untimely. 19 Petitioner filed objections to the R&R. (Doc. 17). 20 A district judge “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has 22 filed timely objections to the magistrate judge’s report and recommendations, the district 23 court’s review of the part objected to is to be de novo. Id. Generally, objections must be 24 specific. Fed. R. Civ. P. 72(b)(2). And “general, non-specific objections” are not sufficient 25 to require the District Court “conduct de novo review of the entire R & R.” Sullivan v. 26 Schriro, 2006 WL 1516005 (D. Ariz.). 27 A “petition for writ of habeas corpus ordinarily must be filed within one year after the 28 state court judgment becomes final by the conclusion of direct review or the expiration of the 1 time to seek direct review.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). This one- 2 year clock is subject to statutory and equitable tolling. Wood v. Milyard, 132 S. Ct. 1826, 3 1831 (2012). As explained in the R&R, Petitioner’s conviction became final on August 24, 4 2002. Thus, Petitioner should have filed his petition no later than August 25, 2003. Absent 5 statutory or equitable tolling, the petition is well outside the permissible time frame. 6 The application of statutory tolling is straightforward. Petitioner did not have any 7 form of request for post-conviction relief pending in state court between August 2002 and 8 November 2005. Petitioner’s filings in state court after the one-year period expired cannot 9 revive the federal limitations period. Accordingly, there is no basis for statutory tolling in 10 this case. 11 Equitable tolling is appropriate when a petitioner can show “extraordinary 12 circumstances were the cause of an untimely filing.” Ford v. Gonzalez, 683 F.3d 1230, 1237 13 (9th Cir. 2012). In an attempt to establish equitable tolling, Petitioner argues he had limited 14 legal resources and lacked representation. Such circumstances are not sufficient to justify 15 equitable tolling. See, e.g., Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (lack 16 of legal sophistication is not sufficient to warrant equitable tolling). 17 Finally, the Court notes that even if it were to reach the merits of Petitioner’s claim, 18 he would not be entitled to relief. The sole basis on which Petitioner seeks relief is that a 19 sentence of lifetime probation constitutes cruel and unusual punishment. The United States 20 Supreme Court has established “gross disproportionality ” as the relevant determination when 21 assessing inappropriate sentencing claims. Lockyer v. Andrade, 538 U.S. 63, 72 (2003). 22 Imposing a sentence of lifetime probation for an individual who pled guilty to sexual conduct 23 with a minor and attempted sexual conduct with a minor was not grossly disproportionate. 24 Accordingly, 25 IT IS ORDERED the Report and Recommendation (Doc. 14) is ADOPTED. The 26 petition for a writ of habeas corpus is DENIED. The Clerk shall enter judgment accordingly. 27 28 -2- 1 IT IS FURTHER ORDERED a Certificate of Appealability is DENIED. Dismissal 2 of the petition is justified by a plain procedural bar and jurists of reason would not find the 3 ruling debatable. 4 DATED this 30th day of January, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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?