Terranova v. Ryan et al

Filing 25

ORDER overruling Petitioner's Objections to the Report and Recommendation of the Magistrate Judge. FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the Order of this Court. (Doc. 21 ) FURTHER ORDERED that Petit ioner's Petition for Writ of Habeas Corpus is denied and dismissed with prejudice. (Doc. 1 ) IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because dismissal of the Petition is justified by a plain procedural bar and jurist of reason would not find the ruling debatable. Signed by Judge Susan R Bolton on 6/29/2015. (KMG)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Lee Terranova,
Petitioner,

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ORDER

v.

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No. CV-13-02572-PHX-SRB

Charles L. Ryan, et al.,

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Respondents.

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Petitioner Anthony Lee Terranova filed an Amended Petition for Writ of Habeas

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Corpus on March 24, 2014 challenging his convictions and sentences in Maricopa

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County Superior Court for third-degree burglary and first-degree murder. The procedural

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history of the case is set out in the Magistrate Judge’s Report and Recommendation.

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The Magistrate Judge recommended that the Petition be denied and dismissed with

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prejudice because the Petition was untimely, Petitioner was not entitled to equitable

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tolling, and Petitioner had not met the actual innocence standard. Petitioner filed timely

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written objections to the Report and Recommendation. Petitioner did not object to the

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Magistrate Judge’s conclusion that his petition for habeas relief was untimely and that he

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was not entitled to equitable tolling. Petitioner’s objections only address whether he has

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met the actual innocence standard. The Court agrees with the Magistrate Judge that

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Petitioner did not.

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The Magistrate Judge noted, and Petitioner does not dispute, that a claim of actual

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innocence requires that a petitioner show factual innocence, not legal insufficiency to

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support the conviction. In review of the Petition for Writ of Habeas Corpus and the

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Objections, the Court agrees with the Magistrate Judge that Petitioner’s claim of actual

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innocence is not a claim of factual innocence but a claim of legal insufficiency. As the

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Magistrate Judge noted, Petitioner never said he did not kill the victim and only

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challenged the legal sufficiency of the evidence supporting his conviction. In his

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Objections Petitioner also does not deny shooting the victim but seems to be arguing that

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the shooting was somehow justified. The Court agrees with the Magistrate Judge that

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Petitioner has presented no evidence of actual factual innocence. His arguments of legal

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innocence do not fall within the statute of limitations exception for actual innocence.

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IT IS ORDERED overruling Petitioner’s Objections to the Report and
Recommendation of the Magistrate Judge.
IT IS FURTHER ORDERED adopting the Report and Recommendation of the
Magistrate Judge as the Order of this Court. (Doc. 21)
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
is denied and dismissed with prejudice. (Doc. 1)

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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal because dismissal of the Petition is justified by a

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plain procedural bar and jurist of reason would not find the ruling debatable.

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Dated this 29th day of June, 2015.

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