Rogel #168330 v. Ryan et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION. The Magistrate Judge's 14 Report and Recommendation is adopted; the Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice; the Clerk is directed to terminate this action and ent er judgment accordingly; in the event Petitioner files an appeal, the Court declines to issue a Certificate of Appealability because reasonable jurists would not find the Court's procedural ruling debatable. Signed by Judge G Murray Snow on 10/1/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Ruiz Rogel,

No. CV-12-02731-PHX-GMS
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court are Petitioner Richard Ruiz Rogel’s Petition for Writ of

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Habeas Corpus, (Doc. 1), and United States Magistrate Judge Mark E. Aspey’s Report

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and Recommendation (“R & R”), (Doc. 14). The R & R recommends that the Court deny

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the Petition. (Doc. 14 at 12.) Rogel filed a timely objection to the R & R. (Doc. 15.)

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Thus, the Court will make a de novo determination of those portions of the R & R to

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which an objection is made. 28 U.S.C. § 636(b)(1); United States v. Reyna–Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the Court adopts

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the R & R of Magistrate Aspey and denies the Petition with prejudice.

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BACKGROUND

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On March 29, 2001, a grand jury indicted Petitioner Richard Ruiz Rogel on three

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felony counts related to the abuse and death of his toddler son. (Doc. 12, Ex. A.) On April

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11, 2002, a jury convicted Rogel of second-degree murder and child abuse. (Id., Ex. T.)

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The Arizona Court of Appeals affirmed the conviction on February 3, 2004, and Rogel

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did not appeal to the Arizona Supreme Court. (Id., Ex. JJ.)

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Rogel filed numerous petitions for post-conviction relief under Rule 32, Arizona

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Rules of Criminal Procedure. The R & R sets forth a more detailed factual and procedural

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background of this case, to which neither party objected. Accordingly, the Court adopts

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this background as an accurate recital. The R & R provides the dates for all Rogel’s

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various petitions for post-conviction relief and the appeals that followed.

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Significantly, after the Arizona Court of Appeals denied review on a rejected

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petition on December 9, 2008, Rogel did not file another petition until June 2, 2010. (Id.,

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Exs. ZZ, AAA, DDD.) Five days later, the trial court dismissed that petition as being

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untimely, (Id., Ex. EEE), and Rogel did not file another petition until January 20, 2011,

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(Id., Ex. FFF). Rogel filed this habeas petition on December 27, 2012. (Doc. 1.)

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In this § 2254 action, Rogel asserts three different grounds for relief. (Id. at 15–

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17.) Magistrate Aspey recommended that the Petition be dismissed because the Petition is

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time-barred. (Doc. 14 at 11–12.) In his response, Rogel argues that the statute of

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limitations does not apply. (Doc. 15.)
DISCUSSION

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I.

STANDARD OF REVIEW

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This Court “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)(1) (2006). It is

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“clear that the district judge must review the magistrate judge’s findings and

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recommendations de novo if objection is made, but not otherwise.” United States v.

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Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).

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District courts are not required to conduct “any review at all . . . of any issue that is not

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the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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The writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006).

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Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”). Id. § 2244 et seq.

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Under AEDPA, the Court may not grant habeas relief unless it concludes that the

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state’s adjudication of the claim (1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established federal law, as determined by

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the Supreme Court of the United States, or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence presented in the state

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court proceeding. Id. § 2254(d)(1)–(2).

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II.

STATUTE OF LIMITATIONS

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Under AEDPA, a habeas corpus petition must be filed within a one-year period of

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limitation. Id. § 2244(d)(1). The limitation period generally begins to run when the state

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conviction becomes final “by the conclusion of direct review or the expiration of the time

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for seeking such review.” Id. § 2244(d)(1)(A). Where applicable, the limitation period

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can begin later, on “the date on which the factual predicate of the claim or claims

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presented could have been discovered through the exercise of due diligence.” Id. §

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2244(d)(1)(D).

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application for State post-conviction or other collateral review.” Id. § 2244(d)(2).

The one-year period is tolled whenever there is “a properly filed

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In this case the period of limitations began to run at the conclusion of the direct

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review of the case. Rogel generally argues the discovery of new material facts but he

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does not describe what they are or show that he could not have discovered them earlier

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through the exercise of due diligence. Rogel’s specific claims are for ineffective

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assistance of counsel and are factually predicated on conduct that was apparent at the

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time of trial. To the extent that Rogel’s claim of newly discovered evidence can be read

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as an argument for a later start date under § 2244(d)(1)(D), that argument is rejected.

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Rogel’s habeas petition was filed after the statute of limitations had run. Rogel’s

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direct review of his case ended at the Arizona Court of Appeals on February 3, 2004. The

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period of limitations began to run after time expired for his opportunity to appeal to the

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Arizona Supreme Court. Rogel did not file his habeas petition until more than eight years

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later on December 27, 2012. While the period of limitation was tolled during the

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pendency of Rogel’s various petitions for post-conviction relief, there was more than a

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year in which no petition was pending. From December 9, 2008, until June 2, 2010, there

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were no petitions filed or pending. The petition filed in June was quickly dismissed as

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being untimely and another petition was not filed until January 20, 2011. Even if the

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untimely petition from June 2010 could be considered “a properly filed application,”

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there were still more than two years between December 2008 and January 2011 during

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which the one-year period of limitations ran without being tolled.

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Rogel’s petition is not exempted from the statute of limitation. The R & R

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concludes that equitable tolling is not appropriate and Rogel makes no objection to that

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recommendation. Instead, Rogel argues that the statute of limitations under AEDPA does

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not apply because Arizona Rule 32 governing post-conviction relief allows for successive

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and untimely proceedings. (Doc. 15 at 1.) But the permissibility or timeliness of Rogel’s

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various post-conviction petitions is not relevant because more than one year passed in

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which there were no pending petitions, timely or not. The AEDPA period of limitation

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begins to run at the end of direct review. While it is tolled during the pendency of post-

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conviction review, it does not restart with each new petition.
CONCLUSION

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Because Rogel filed his habeas petition beyond the AEDPA limitations period

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even after statutory tolling, and because he is not entitled to equitable tolling, his federal

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habeas petition is barred.
IT IS THEREFORE ORDERED that Magistrate Judge Mark E. Aspey’s Report

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and Recommendation, (Doc. 14), is ADOPTED.

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IS FURTHER ORDERED that Richard Ruiz Rogel’s Petition for Writ of Habeas

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Corpus, (Doc. 1), is DENIED and DISMISSED WITH PREJUDICE. The Clerk of

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Court is directed to terminate this action and enter judgment accordingly.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a

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certificate of appealability because reasonable jurists would not find the Court’s

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procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 1st day of October, 2013.

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