Cain #107441 v. Ryan et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION 18 . The Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice. The Clerk of Court shall enter judgment accordingly. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied. Signed by Senior Judge Roslyn O Silver on 9/24/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Earl Dewayne Cain,
Petitoner,

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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-12-02074-PHX-ROS
ORDER

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On August 16, 2013, Magistrate Judge Bridget S. Bade 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. 18). 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 must be

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de novo. Id. Petitioner filed timely objections, meaning the Court must conduct a de novo

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review. But having done so, the Court agrees with the Magistrate Judge that the petition is

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untimely.

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Given the date his convictions became final, Petitioner had until April 24, 1997 to file

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a federal petition for writ of habeas corpus. Petitioner did not file his federal petition until

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September 27, 2012, meaning it is obviously untimely absent some type of tolling. There are

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two types of tolling possibly applicable to Petitioner’s claims: statutory and equitable.

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Neither applies in this case.

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Dealing first with statutory tolling, the best-case scenario for Petitioner is the

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following. Petitioner’s one-year clock on the filing of his federal petition began to run on

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August 2, 1996 when there was a definitive ruling denying his first state petition for post-

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conviction relief. (Doc. 18 at 10). Petitioner did not commence his second petition for post-

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conviction relief until June 5, 1997. Upon filing his second petition, the one-year clock

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stopped running due to statutory tolling but 307 days had already run between August 2,

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1996 and June 5, 1997. Cf. Campbell v. Henry, 614 F.3d 1056, 1059 n.1 (9th Cir. 2010)

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(calculating one-year period by adding up numerous periods when clock was running).

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Petitioner’s second petition for post-conviction relief was denied on December 21, 2000.

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Therefore, on December 22, 2000, the one-year clock again started to run. And the clock ran

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out on February 18, 2001. Accordingly, even under this generous interpretation of the record

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and application of statutory tolling, this petition is untimely by over ten years.

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In his objections to the R&R, Petitioner emphasizes that he filed many other petitions

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for post-conviction relief between 2001 and 2012. Those petitions, however, have no bearing

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on the issue of statutory tolling. Once the one-year clock ran out, the filing of additional

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state petitions did not restart the clock. In other words, the fact that Petitioner’s fifth petition

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for post-conviction relief was denied by an Arizona court only four months before he filed

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his this federal petition does not render the federal petition timely.

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As for equitable tolling, Petitioner has not identified any “extraordinary

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circumstances” that made it “impossible to file [his] petition” within the one-year period.

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Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (quotation omitted). Petitioner’s lack

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of counsel and confusion regarding the applicable limitations period are not sufficient to

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establish equitable tolling. See Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (“[W]e

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have never accepted pro se representation alone . . . as an excuse for prolonged inattention

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when a statute’s clear policy calls for promptness.”); Waldron-Ramsey v. Pacholke, 556 F.3d

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1008, 1013 (9th Cir. 2009) (“[A] pro se petitioner’s confusion or ignorance of the law is not,
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itself, a circumstances warranting equitable tolling.”). And, at the very least, the record

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shows Plaintiff did not pursue his rights with “reasonable diligence.” Ford, 683 F.3d at 1237.

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None of Petitioner’s other objections have merit and the R&R will be adopted in full.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 18) 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 24th day of September, 2013.

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Roslyn O. Silver
Senior United States District Judge

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